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Forbidden and Permitted Relations

When I first heard the news that the lawmaking body of the Conservative movement rejected two proposals for full acceptance of gay and lesbian Jews and accepted the responsum, or teshuvah, of Rabbis Dorff, Nevins and Reisner, advocating partial acceptance, I almost cried with frustration. I am a newcomer to the Conservative movement, having identified as Orthodox for most of my life. I am devoted to halakhah, Jewish law, but no abstract principle is more important than real human beings. Rejection of the two most liberal teshuvot seemed an inversion of these priorities.

Then I read the Dorff/Nevins/ Reisner teshuvah. To my surprise, it made me proud to be a Conservative Jew. I loved this teshuvah, because I love halakhah. Professionally, I am a scientist. I relish categorization and logical deduction, and the essence of halakhic reasoning is categorization: the 39 categories of forbidden work on Shabbat, different types and levels of nonkosher food, etc.

Of course, it’s not just the categories that I love. A scientist, if she is spiritually- minded, may find in this world hints of God through science. But the halakhicist uses halakhah to direct her actions, bringing God into this world. To quote Rabbi Yosef Dov Soloveitchik in his book “Ish HaHalakhah” (Halakhic Man): “Holiness represents an ordered life, established by halakhah, and finds its fulfillment through the sexual prohibitions, forbidden foods, and so forth.” (My translation.)

A scientist makes her best attempts at describing reality, hoping to improve upon the understanding of her predecessors. The halakhicist hopes to make reality conform to the wisdom of her predecessors, because our predecessors connect us, in an unbroken chain, back to Sinai.

The Dorff, Nevins and Reisner teshuvah is an exquisite halakhic piece. It is filled with subtle but accurate categorizations. The bible forbids a man to “lie with a male as one lies with a woman” (Leviticus 18:22). The rabbis of old read in these verses a prohibition against anal intercourse between two men, and to be true to their scholarship Rabbi Dorff and colleagues upheld this prohibition. But they distinguish it from ancillary ones: homosexual touching, kissing, even oral sex. These they permit, masterfully grading prohibitions in order to reverse all but the weightiest.

To justify their permissions, Rabbi Dorff and colleagues invoke kvod habriot — human dignity. Kvod habriot is one of the most beautiful of Jewish teachings. Because God created humanity in His own image, human dignity is precious. Rabbi’s Dorff, Nevins and Reisner write:

“It is difficult to imagine a group of Jews whose dignity is more undermined than that of homosexuals… They have, in effect, been told to walk alone, while the great majority of Jews are expected to walk in pairs and as families. In such a context, where is the dignity of homo- sexual Jews? How can we hide from their humiliation?”

Kvod Habriot is a profound moral teaching, but it is also a halakhic principle. The teshuvah reviews the sources extensively, from the Talmud to modern times, citing cases where the rabbis used kvod habriot to suspend a rabbinic prohibition. They also carefully construct a case that non-anal gay intimacy, and all forms of lesbian intimacy, are prohibited rabbinically, not biblically.

This teshuvah is quintessentially Conservative. An Orthodox scholar might argue: our predecessors did not see fit to apply kvod habriot to homosexuality so neither may we. Rabbis Dorff, Nevins and Reisner reply that our predecessors were not aware of the findings of modern psychology. Notice: Conservative Judaism allows outside sources into the halakhic arena, even as a direct challenge to traditional wisdom

In discussions of Judaism and homosexuality, many claim to be compassionate but in fact are patronizing. The Dorff/Nevins/Reisner teshuvah is different. It announces:

“Our core conviction is that dignity for gay and lesbian Jews — as for heterosexual Jews — results neither from blanket permission nor from blanket prohibition of all sexual activity, but rather from situating it within the matrix of isur v’heter, permission and prohibition, that permeates all of Jewish life.”

The prohibition maintained by the teshuvah may be unrealistic for most gay men, but most Conservative individuals make their own decisions on personal issues. As Orthodox newlyweds, my husband and I felt obligated to ask a rabbi whether we might use contraception, and if so which form. In our Conservative community, most couples do not observe hilkhot nidah, the laws of menstrual purity, though the nidah laws are as important halakhically as any law pertaining to Jewish tradition teaches that we should be saying 100 blessings a day to mark all the moments of holiness that infuse our lives. There are blessings to recite before eating and drinking, witnessing rainbows, seeing old friends and arriving at new seasons. Many of the most important moments in the lives of transgender, intersex and gender nonconforming Jews, however, are not honored within our tradition.

This invisibility is connected to the prevalent belief that there are only two ways of being human. From before we are born people ask, “Is it a boy or a girl?” From the moment of birth onward most facets of our life — the clothes we are told to wear, the activities it is anticipated we will like, the careers and hobbies we are encouraged to pursue, the loving relationships we are expected to have — are guided by the answer to this crucial question. The past few decades of feminist organizing have deeply questioned whether we can (or should) see gender as an essential way to divide up humanity. And yet most of us 21stcentury people were still raised to believe that whether we are “girl” or “boy” is a simple, and unchangeable, fact.

In the spring of 2006 I came out as transgender and was ordained as a rabbi by Hebrew Union College. As a new rabbi I have had the privilege of talking to people who (in one way or another) can’t or won’t fit within the confines of modern binary gender. Each of these individuals has confirmed that gender-variant lives do exist both in Jewish sacred tradition and in contemporary communities. (For example, two intersex figures — the “tumtum,” and the “androgynos” — are mentioned more than 200 times in the Babylonian Talmud.) Jewish sacred texts acknowledge and celebrate a spectrum of gender identities. Applying Jewish textual and ritual resources to contemporary lives names the holiness that is present in moments of personal and social transition.

I composed the set of blessings, below, for a friend who wanted to mark each time that he took testosterone. The blessings can be used for name or pronoun changes, coming out to loved ones, or moments of physical transition. The first blessing refers to God as the “Transforming One”—homosexuality. Prohibitions on things done in private impact only those who choose to accept them.

The teshuvah recommends gay and lesbian Jews train as rabbis, cantors and educators. It also recommends celebrating homosexual unions with “blessings over wine and shehekhiyanu, with psalms and other readings to be developed by local authorities.” These recommendations will lead to practical changes in our institutions, ushering in an era of complete acceptance.

I remain disappointed in one aspect of the Dorff/Nevins/Reisner teshuvah. Though the teshuvah supports gay and lesbian relationships, it relegates them to second-class status: “Heterosexual marriage between two Jews remains the halakhic ideal.” As the mother of two children as yet too young to reveal their sexual identity, this statement distresses me. God provides many ways to live a meaningful life. We must stop casting gay as second-best.

The Conservative movement is halakhic because we cherish tradition. Thank God the movement also allows change, albeit slowly. These three rabbis have provided the mechanism for changing our institutions. I hope that popular attitudes will soon follow the moral tide.

Dr. Ilana Goldhaber-Gordon is the author of Thinking Biochemistry: Biochemical Approaches to Biological Problems (University Science Books).  She also teaches at Congregation Kol Emeth in Palo Alto, CA.