Conference Talk-gay And Lesbian Jews In Jewish Law

Conservative Jewish Legal Decision Making and the Question of Gay and Lesbian Jews by Michael Pitkowsky

In December, 2006, the Committee on Jewish Law and Standards (CJLS) of the Conservative movement in Judaism approved a rabbinic responsum which “effectively normalizes the status of gay and lesbian Jews in the Jewish community.” This decision culminated close to fifteen years of discussion and deliberation on the status of gay and lesbian Jews within Conservative Judaism.

It was also within this time period that

numerous rabbis within Conservative Judaism began to discuss the role of legal theory in the Jewish legal decision-making process. This paper will examine four different responsa and articles that were written, addressing both the implicit and explicit influences of legal theory on them. I want to begin with a short introduction to Conservative Judaism. The origins of the Conservative Movement can be found in the numerous 19th century attempts to navigate between traditional Jewish life and modernity. One of these responses, which can be seen as a predecessor to the Conservative Movement, attempted to find a middle road between an orthodox movement which was seen as too rigid, both ritually and theologically, and that rejected the historical nature of Judaism which was 1

being uncovered thanks to the modern critical study of Judaism, Wissenschaft des Judentums, and a reform movement that was thought to have gone too far, rejecting too much traditional Jewish practise and ritual. This middle road, which had different names, depending on which country one was in, pledged fidelity to Jewish law (halakhah) and its institutions. In Germany its leader was strongly influenced by the school of Historical Jurisprudence, but by and large, there was a strong nonideological nature to Conservative Jewish legal thinking.

There were

statements of support made for "tradition and change," "the flexible nature of Jewish law," etc., but very few systematic attempts to elaborate what role these values were to have within a religious legal system.

This

ideological vacuum of sorts has continued to some extent to this day, and it should serve as the background for our discussion. The first response that I will discuss is that of Rabbi Brad Artson. I think that Artson's reponse illustrates the use, or according to some, the misuse, of history within Conservative legal discourse.

Artson's argument

can be summed up as "The rabbis of antiquity did not know what a monogamous homosexual relationship was, so any time that they spoke about prohibited homosexual relationships they were not talking about the homosexual relationships that we are familiar with today." I want to point out that most of the discussions that I examined were focused on homosexuality, since from the standpoint of Jewish law, homosexuality is a more severe prohibition than lesbianism.

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Artson's emphasis on history and the modern sciences can be seen from the following selections. Brad Artson (1993) 1. “Halakhah generally utilizes a method of reading the Torah and rabbinic sources as a way of developing applications of old rulings to new circumstances, or to generate new rulings when no established precedent exists. This process of legal development relies frequently on the evolution of knowledge, technology, and moral standards.”

According to Artson, modern methods of research have shown us that the homosexuality that was prohibited by traditional Jewish law is not the homosexual relationships that we are familiar with today.

2. “Committed, permanent, exclusive homosexual relationships between equals were unknown until the modern era, and therefore could not have been explicity prohibited by earlier Jewish law.” 3. “In every way, the examples of antiquity-as correctly condemned by these rabbinic sources-fail to address the nature of homosexual relationships made possible by modernity.”

Artson's methodology reflects a commonly used legal hermeneutic found in Talmudic and post-Talmudic literature, that is, the social and historical contextualization of a prohibition which will now allow a certain act to be permitted. If the homosexuality that was prohibited in the past is not the type of sexual and emotional relationship that is now under discussion, then we should not feel bound by any previously accepted prohibition. The authenticity coupled with the potential weaknesses of Artson's 3

methodogy and argument was elaborated on by Rabbi Joel Roth. While acknowledging the traditional nature of Artson's methodology, (see nos. 1 and 2) Roth rejected the basic premise of Artson's argument, that the rabbis of the Talmud were not familiar with loving homosexual relationships. Basing himself upon numerous sources within rabbinic literature which discuss homosexuality, Roth claimed that the rabbis were familiar with monogamous and loving homosexual relationships and these were the types of relationships which the rabbis forbid. Joel Roth (1992) 1. “[Brad Artsonʼs] interpretation, if successful, would be a radical, but defensible, interpretation which might take halakhic decision-making into new territory, with far-reaching conclusions.” 2. “Any competent decision-maker would know immediately that such a radical interpretation would require incontrovertible proof, for many reasons.”

For Roth, the extra-legal sources, which in his opinion in our case are discussions of the etiology of homosexuality, are not strong enough to allow the overturning of this prohibition.

3. “But, a competent decision-maker who is utilizing information gleaned from sources external to the Halakhah will be extremely careful to insure that the sources relied upon are not a matter of dispute among authorities of that discipline, in this case, authorities on homosexuality.”

There must be a concensus among the extra-legal evidence that is brought into this dialogue. What was not clear from Roth's argument, was what was the tipping point when these extra-legal factors would overturn the 4

prohibition. Roth argues for the need for legal and hermeneutic authenticity, turning to modern legal theory for support. 4. (2006) “I have long admitted that I am not an expert in legal philosophy, but since the idea of a chain novel, I believe, originates with Ronald Dworkin who, together with Robert Cover, are the two favorites of the Conservative naturalists, I wish to quote two paragraphs from an article of his entitled “Natural Law Revisited,”...

quote from Dworkin: “A naturalist judge might find some principle that has not yet been recognized in judicial argument, a brilliantly unifying account of past decisions that shows them in a better light than ever before…Nevertheless, the constraint, that a judge must continue that past and not invent a better past, will often have the consequence that a naturalist judge cannot reach decisions that he would otherwise, given his own political theory, want to reach.” Even the "naturalist judge" must realize that they are not able to decide whatever their ideological heart desires. For Roth, no matter how much he may want to conclude that homosexual relationships are permitted according to Jewish law, precident and the sources prevent him from doing so. On the other hand, for all of those rabbis who eventually permitted homosexual relationships, saying no was not an option. Roth's methodology was rejected by Rabbi Elliot Dorff. Dorff, who has written extensively on legal theory and Jewish law, found Roth's formalistic approach to law wanting, especially in a "hard case" such as this. Elliot Dorff (1992) 1. “[Rothʼs] formalism is not of the most extreme sort, for he does acknowledge “extra-legal” factors as potential sources for influencing decisions. Nevertheless, his view is formalistic in that the legal process is 5

seen as logical deduction from previous texts of the law."

Dorff elaborated on the non-formalistic approach to Jewish law.

2. “I think that formalism, even of this modified type, is an erroneous way to understand any legal system, certainly one that has undergone all of the historical vicissitudes of Jewish law. One simply cannot pretend that the texts of our tradition existed in some pristine metaphysical realm in which the only issue was the logical relationships tying one to another. As Supreme Court Justice and legal philosopher Oliver Wendell Holmes Jr. noted almost a century ago, proper legal reasoning is not simply a matter of deductive reasoning from previous texts. It is not a form of mathematics, where one must worry exclusively about doing oneʼs sums correctly; it requires attention to historical context and conscious recognition of the moral judgements each judicial decision involves.”

According to Dorff, the formalistic approach to law is not an appropriate methodology for someone deciding a question of Jewish law. A proper methodology "requires attention to historical context and conscious recognition of the moral judgements each judicial decision involves." It was a responsum co-written by Dorff which was eventually approved by the CJLS. Ironically, in my opinion, his answer was in some way formalistic. He claimed that it is simply immoral to demand of someone to live a life of celibacy and prevent them from entering into a loving relationship. So what does he do about Leviticus 18:22? He interprets the verse to prohibit homosexual intercourse and leaves that prohibition in place, calling upon homosexual to refrain from anal intercourse. The problem is that biblical scholars do not agree on what this verse means and nowhere did Dorff address this problem nor quote any biblical scholar to justify his interpretation. 6

The last opinion that I want to discuss is that of Rabbi Gordon Tucker. Tucker has also written on the role of legal theory in Jewish law and has even taught a class on the subject in the rabbinical school of the Jewish Theological Seminary of America, the main school in America for training conservative rabbis. In his responsum, Tucker discussed not only the specific question of homosexuality in Jewish law, but the authority and methodology of Jewish law in general. Gordon Tucker (2006) 1. “The paper argues that those methods that have been used in the Conservative Movement have been conceived in an overly narrow way, and that this constriction of method has put Conservative halakhic practice at odds with the historical consciousness that has been the root of the fabulously fruitful intellectual and theological achievements of Conservative Judaism and its scholars. Approaches to understanding the authority of religious law are no more determined in our sacred texts than are approaches to understanding the authority of the texts themselves. As long-standing as those approaches may be, they are ultimately chosen by us, based on our philosophical and theological commitments.”

Tucker stressed that the theological foundations of ones belief system must have an effect on how a religious legal system works. If we do not believe in a literal revelation from God, we shouldn't act as if we do. Ones theology must be reflected in how they decide law.

According to Tucker, positivism works well for a good part of the time, but there are "hard cases" which call for a different approach.

2. “For now, I want simply to note that the virtually universal tendency to use positivist analyses when doing law does not imply that positivism is the best tool for answering every question at law. Sufficiently hard cases may stretch the local successes of positivism beyond the limits within which they reside." 7

For Tucker, Robert Cover's approach to law is an appropriate methodology.

3. “The law is given cogency and support by the ongoing story of the community that seeks to live by the law. This is true no less for religious than for secular communities, and it is precisely what Robert Cover had in mind when he wrote that “for every constitution there is an epic”. The ongoing, developing religious life of a community includes not only the work of its legalists, but also its experiences, its intuitions, and the ways in which its stories move it. This ongoing religious life must therefore have a role in the development of its norms, else the legal obligations of the community will become dangerously detached from its theological commitments.”

The continuous narrative of a religious community helps shape the development and understanding of the law. The stories and experiences of a community are valid factors which affect how the norms and laws of a community develop. Conclusion: It is my opinion that the legal opinions that were produced within Conservative Judaism during the fifteen year discussion on the status of Gay and Lesbian Jews offer proof that religious law is alive and kicking within liberal religious denominations. These discussions were at times difficult, with a number of people coming to the conclusion that the usually wide parameters of legitimate opinion had been breached. Modern legal theory played an important role in the formation of some of the opinions which were written, offering examples of the impact that legal theory can have on religious legal development. 8