https://docs.google.com/document/d/e/2PACX-1vQyQEZker6Y6AXzzO474q-1j61WiUEqIN_-t01yfjNUXMGKlP92Hj0SgOjmcHkPnOZK1xlSdsz-DBb0/pub Introduction: The conversation around sexual orientation is fraught within the Orthodox world. Many in the Modern Orthodox world are grappling with the tenuous positions of their Jewish standing in the larger Orthodox community and although a deep recognition of the troubling nature of Orthodoxy’s stance on the issue has left many feeling frustrated; they feel powerless to permit an act that will sever their ties to the rest of the Orthodox world. I have great respect for their commitment to halachic Judaism and their willingness to engage in discourse previously forbidden and yet their inability to address the realities on the ground pains me. For the Haredi communities that are unwilling to even open up a dialog on the matter I am distraught and infuriated. As a descendant of Syrian Jews, my background and my personal history make this topic particularly relevant. The Ashkenazi Jewish communities in America have evolved in such a way that has opened up the doorway to more egalitarian practice and, in denominations outside of the Orthodox world, a deeper acceptance of differing sexual orientations. In the Sephardic world, heavily influenced by our Arab backgrounds and our late entry into the United States, we are far behind in these arenas. For the Syrian Jew there is one Judaism, denominations do not exist and although small strides are being made towards more egalitarian practice we are limited in the roles of women in ritual life. The community of people operating in the hidden worlds of gay life are at more risk than those that are out. Their risky behavior tends to put them in dangerous neighborhoods and the practice of safe sex is diminished. This behavior puts their partners at greater risk for contracting STD’s as they assume that their partners are monogamous. The closeted gay man is more prone to chronic depression, alcohol/substance abuse and suicidality. Growing up in a community that is unwilling to accept homosexuality causes many to follow communal expectations by sublimating their desires, living on the down low and compartmentalizing. Others do not marry and live a “don’t ask don’t tell” existence. While some opt out, choosing a life beyond the walls of the community and cutting off a part of their heritage to keep their psyches somewhat intact, many fall prey to drug abuse and suicide. But within the community the denial of reality is strong and the pain, stronger. I can no longer sit idly by as the blood of my brothers and sisters rests on silence. The question: I received a call from a friend who is a Rabbi in the Syrian community in Brooklyn, unable to move beyond the circular nature of the discussion with his Syrian colleagues, knowing my history and my open mindedness he reached out to me to share his anguish. A congregant, a young adult male approached him in despair. From a very young age this man knew he was gay. Understanding from his youth the nature of the community’s homophobia, he hid his desire and denied his tendencies. As a young boy and teenager this was easier as he was able to hide his sexuality through taking on the appearance of sexual immaturity akin to asexuality and claiming strict religious observance which kept him from having to engage with the opposite sex, but now as he enters young adulthood and the pressures of community mores are catching up to him, he is distraught. He is aware that many community Rabbis have advocated that gay men marry and hopefully their hetero-sexual relationships will sublimate their homosexual desires. As he has matured his hopes of repression are slipping and the desires are getting stronger. His psychological state is tenuous as he has described a desire to end his life. He recognizes that in order to go on living he will have to surrender who he is, or lose the family and community where he has spent his whole life. He recognizes that living this lie will not only affect his psyche but also his wife’s and their unborn children. At the same time he holds a deep desire for the Syrian life and does not want to give it up. He looks forward to raising children the way he was raised, in community schools and in the sanctuaries of the community synagogues. He values the community life and does not want to lose it. So he asks whether he is permitted to follow the ruling of countless other Syrian rabbinic authorities knowing full well that he will have to lie to his spouse and possibly cheat on her to maintain the facade. My friend, the Rabbi, is at a crossroads, coming to an adequate response feels impossible as he recognizes that all answers to this particular question are halachically problematic and potentially life threatening. And so he poses a different question. Knowing all that we know about homosexuality and its current acceptance in American society coupled with the grave consequences of denying it’s validity he asks, “Do I have a halachic obligation to permit?” Or, in other words, does halacha allow us to hold firm on the biblical prohibition or are we actually transgressing by perpetuating it? Does the “halachic process” allow us to perpetuate a prohibition that will cause a breakdown in community and a loss of life? Language In the following pages I will be using the word Orthodox for ease of use. Yet we must understand that the Orthodox denomination includes multiple different perspectives and understandings of Torah and Halacha. For the purposes of this teshuva, the word Orthodox implies an unwillingness to use the multiple halachic solutions that have been introduced to modern day issues that affect our most vulnerable populations, i.e. the LGBTQ community and agunot. This teshuva focuses on homosexuality but its implications are far greater. The assumption is that Orthodox=right practice is what is being questioned here today, therefore I will be using that word throughout. Mishkav Zachar is the biblical prohibition of a man sleeping with another man as you would a woman-the common understanding of this phrase is anal penetration. Background: The continued rhetoric around sexual orientation and halacha in the Orthodox community often begins with a statement that homosexuality is a biblical prohibition and therefore there is nothing that can be done, our hands are tied. This premise assumes that biblical prohibitions have never been overturned before and we know this to be untrue. I will not get into a discussion that questions the intent of the biblical prohibition of mishkav zakhar as that discussion detracts from our task. We have learned through countless experiences that “without the rabbinic will there is no halachic way”. Addressing the validity of the pesukim or the intentionality of the Biblical statement has no place in this discussion as we are taking the statement at face value. Leviticus 18:22 and 20:13 are the two places in Torah where we see the prohibition of mishkav zakhar and this responsum is working on the assumption that this prohibition is forbidding the sexual act of two men lying together as a man lies with a woman. I would like to establish clarity around the biblical prohibition and articulate the social constructs that have allowed for grave distortion. This is a prohibition of the sexual act of male penetration. Any prohibition that extends to homosexual relationships must be recognized as a Rabbinic decree and may not be considered a Biblical prohibition. As the Rambam teaches in Hilchot Maamarim 2:9 הואיל ויש לבית דין לגזור ולאסור דבר המותר, ויעמוד איסורו לדורות. וכן יש להן להתיר איסורי תורה לפי שעה. מהו זה שהזהירה תורה “לא תוסיף עליו ולא תגרע ממנו?” שלא להוסיף על דברי תורה ולא לגרוע מהן ולקבוע הדבר לעולם בדבר שהוא מן התורה בין בתורה שבכתב בין בתורה שבעל פה. כיצד הרי כתוב בתורה לא תבשל גדי בחלב אמו מפי השמועה למדו שזה הכתוב אסר לבשל ולאכול בשר בחלב בין בשר בהמה בין בשר חיה אבל בשר העוף מותר בחלב מן התורה. אם יבוא בית דין ויתיר בשר חיה בחלב הרי זה גורע ואם יאסור בשר העוף ויאמר שהוא בכלל הגדי והוא אסור מן התורה הרי זה מוסיף. אבלאםאמרבשרהעוףמותרמןהתורהואנונאסוראותוונודיעלעםשהואגזרהשלאיבאמןהדברחובה ויאמרו העוף מותר מפני שלא נתפרש כך החיה מותרת שהרי לא נתפרשה ויבא אחר לומר אף בשר בהמה מותרת חוץ מן העז ויבא אחר לומר אף בשר העז מותר בחלב פרה או הכבשה שלא נאמר אלא אמו שהיא מינו ויבא אחר לומר אף בחלב העז שאינה אמו מותר שלא נאמר אלא אמו לפיכךנאסורכלבשרבחלבאפילובשרעוףאיןזהמוסיףאלאעושהסייגלתורהוכןכלכיוצאבזה: The Rambam articulates that the pasuk “You shall not add to that which I command you and you shall not subtract from it, to keep the commandments of the L-rd your G-d...” (Deut. 4:2) teaches that we may not consider a rabbinic decree to be a biblical decree, explaining that if we were to consider a rabbinic prohibition the same as a biblical prohibition, we may cause people to discard Torah when they realize the Torah does not prohibit the rabbinic decree and so we must be vigilant in articulating the differences. The communal sense that homosexual relationships are a biblical prohibition creates just the scenario the Rambam is trying to avoid. In claiming that homosexuality is a biblical prohibition, we are alienating our LGBTQ brothers and sisters from halacha and Judaism as a whole. Secondly the end of Rambam’s teaching articulates that the purpose of allowing the Rabbis to add to the Torah even though this goes against the biblical verse in these rabbinic decrees is to create a fence around the Torah from keeping people from inadvertently sinning. In this case we can see how prohibiting the homosexual relationship might appear to create a fence for the biblical prohibition and yet the reality is that this rabbinic decree has actually caused greater transgression. But let’s use the correct language for this particular rabbinic fence, homophobia. The Rabbis have chosen homophobia as their mode to keep the community from participating in mishkav zachar. This fence has failed, although it shames people into appearing submissive. The reality is that many have chosen to discard the prohibition altogether, while living duplicitous lives on the down low, denying their sexual identity in the visible world and living a dangerous underground sexual life. Others have transgressed in other ways. Although they may have never performed a forbidden sexual act, they have responded to the shame induced by homophobia by committing suicide, taking drugs and marrying women while ignoring the requirements of their Ketubah and not sexually satisfying their wives. This final group is at risk of a greater sin if they cannot completely repress their sexuality; they too can end up living on the down low, putting not only themselves but their families at risk as well. The rabbinic gate around this Torah prohibition is ineffective. The rabbinic usage of expanding prohibitions in order to keep the people from sinning is failing in more and more ways as people are discarding Torah completely as they find that they cannot fit into the limitations imposed by the rabbinate. As Rabbis we must recognize when our tools are no longer effective. The Rambam, using a pasuk on shabbat, expands the perspective of biblical prohibition by claiming that fences around the Torah are biblically mandated, but this can only be maintained if the fence is actually a fence. In this case the fence has failed and beyond that it has allowed or rather encouraged a rise in transgression on both sides the rabbinate and its constituents. Those who are born gay have, at best, relegated themselves to a life of celibacy and separation, superficially denounced their homosexuality while living on the down low or have walked away from Orthodoxy or Judaism altogether. And these are the better solutions, the truth is many marry and pretend to live a hetero-normative life while secretly sleeping around, while many others become addicts and/or suicidal. The rabbinate has allowed its constituency to adopt shaming and bullying tactics to keep the fences alive. Ultimately the system has become so distorted that the original biblical prohibition is lost and the pain and suffering of those personally affected is so great a sin that, we are all liable. And yet there is a glimmer of hope, if we look to the LGBTQ Jews who have made peace with their desires and healed the homophobic shame of society. In them, we are able to see the beautiful family structures that are being brought into the world, families that are embodying Torah and creating בתיםנאמניםבישראל. The forbidden sexual act may be a part of their lives, and we may hold that they are transgressing a biblical prohibition, but to them, the life sustaining nature of their experience is a trade off they are willing to make. But this will not satisfy all in the Jewish world, the charedi communities continue to shame and ignore their gay members causing irreparable damage and great rupture to communal life. The systems of the past are no longer effective. With the enlightenment period the communal structures and the obligatory nature of halacha was diminished. To combat this the Orthodox rabbinate chose to secede from the greater community and insulate themselves from outer influence. When this began to break down as well, the rabbinate began to employ shame tactics to exert control over a waning population. And now today we see all over the world how the charedi community is trying to exert the last of its waning power on the most vulnerable of our populations. So the real question remains: Is the Orthodox rabbinate actually following halacha? Can halacha become stagnant and ignore the needs of the times? Does the halachic process require engagement with reality? And does a lack of engagement signify a breakdown in the halachic process and the viability of halachic Judasim as a whole? Simply put, is the Orthodox community’s continued application of Shimshon Raphael Hirsch’s secessionary Judaism coupled with the Chatam Sopher’s declaration that there is no change in Torah actually considered Rabbinic Judaism? Halacha as we know it was not created by the Orthodox movement. Halacha came way before orthodoxy existed. The Torah She’b’al Peh as the Rabb’s aptly call the oral tradition was given at Sinai and, depending on your hashkafa, has many different meanings. For the purpose of this Teshuva we are going to assume that it was all given at Sinai. That Moses was living beyond the time space continuum and knew and understood not only the happenings of his generation but of all generations to come. As we begin to explore the historical framework it is important to articulate that we are appropriating the view that Halacha is a process that has been employed since Moses received the Torah on Sinai and that halacha as we know it today was known and understood by Moses. Moses understood that in order for Bnei Yisrael to live a life of Torah there had to be an ability to engage with the realities of a changing world and so Biblical law was coupled with the oral tradition that allowed for Torah to be passed down through relationship. This allowed our Rabbis to meet each moment, finding ways to live a life of Torah through the deepest devastations; when we lost the Temple in Yerushalayim the Rabbis already had a path to follow. The oral law is what has allowed B’nei Yisrael to survive these thousands of years of exile. The Rabbis of our Talmud were living in a time where Israelite religion, a land based religion needed to place a stronger emphasis on personal/communal ritual due to the destruction of the temple and the Jewish communities move into Bavel. The Oral Torah helped them to recognize that life was going to change depending on location and times, but Torah values could still guide them. That is why the word halacha comes from the shoresh הלך (to go) The Oral Torah recognizes the journey. And this was so for generations. In the 17th and 18th century we see a shift. With the emancipation and the enlightenment the Jewish communities of Eastern Europe were no longer able to retain their insularity. For some this became an opportunity to embrace the larger community and for others this became a moment of deep fear. Many were afraid that opening the Jewish community to secular influence would create a breakdown in Jewish life. And so while some took on reforms, others used stronger gates to keep things out. One of the biggest proponents of stronger gates was the Chatam Sofer who proclaimed, chadash assur min hatorah – new is forbidden by the Torah – hoping that keeping out the new influence of the enlightenment would keep Torah intact. Through the years this has led many to deny a basic tenet of halachic judaism, which is its ability to change. The Chatam Sofer believed that what he was doing was saving the Jewish people, and I appreciate his intention. Unfortunately this belief system has allowed us to watch halacha become ossified and the needs of the Jewish people are overrun by a past that no longer exists. We must reclaim halachic judaism, as the word Ortho-right dox-opinion is contrary to our very own Gemara which teaches us over and over that there are many valid opinions, "These and those are the words of the living God" When we categorize life issues to be beyond the halachic system we create a breakdown in community. Some Rabbis of the 19th century, particularly Shimshon Raphael Hirsch, chose to separate themselves from those Jews who were embracing modernity through the Haskalah, in hopes of protecting that which they saw as sacred. In resisting modernity and its effects on their Jewish brothers and sisters they created a halachic enclave and those that brought new secualr knowledge to the table were left out of the discourse. This marginalization and insulation led many who wanted to integrate science into their understanding, to lose their connection to Judaism. For this seccessionary rabbinate they were no longer a concern, for this rabbinate no longer held a sense of responsibility for them and its halacha did not have to include them. The Rabbis’ attempt to insulate the community allowed them to maintain control over the people who were content with their limited knowledge while those that chose to add secular knowledge to their education were cut off from the Rabbinic mindset. The Rabbis’ unwillingness to recognize the changing realities of their times placed a heavy burden on those that stayed within the fold but as the weightiness of the changing realities became clearer and the Rabbis could no longer control the influx of information coming in the commitment of the people began to wane and the sense of obligation began to diminish. The Rabbis intuitively understood the risks of the emancipation and the enlightenment, but what they were unable to see was that their response to it was actually going to be the downfall they were so desperately fighting against. Harav Shimshon Raphael Hirsch coupled with the Chatam Sofer created a situation that has had dangerous repercussions for the Jewish world. In shutting down the halachic process by claiming there is nothing new in Torah, they created a pause button that never existed in halacha. While separating the insular Jews from those who embraced the changing world, they created a movement that can no longer integrate the Jewish community as a whole. While the Orthodox seem to have been tasked with upholding the halachic vision, we must recognize the untenable nature of their task. Halacha is an ever changing entity that makes explicit the requirement that its rulings be tenable for the masses. The seccessionary nature of Orthodoxy and its unwillingness to engage reality is a problem with far reaching implications that created a moment in time where Jewish life has lost its value. The oral tradition, responding to the needs of the community in its time, has been denied and the biblical law has become distorted. As the Rambam writes in the following chapter of SeferHamaamarim- the heretic is the one who denies the oral tradition. 3:1 מי שאינו מודה בתורה שבעל פה אינו זקן ממרא האמור בתורה אלא הרי זה בכלל האפיקורוסין [ומיתתו בכל אדם]: 3:2 מאחר שנתפרסם שהוא כופר בתורה שבעל פה [מורידין אותו] ולא מעלין והרי הוא כשאר כל האפיקורוסין והאומרין אין תורה מן השמים והמוסרין והמומרין שכל אלו אינם בכלל ישראל ואין צריך לא לעדים ולא התראה ולא דיינים [אלא כל ההורג אחד מהן עשה מצוה גדולה והסיר המכשול]: 3:3 במה דברים אמורים באיש שכפר בתורה שבעל פה במחשבתו ובדברים שנראו לו והלך אחר דעתו הקלה ואחר שרירות לבו וכופר בתורה שבעל פה תחילה כצדוק ובייתוס וכן כל התועים אחריו אבל בני התועים האלה ובני בניהם שהדיחו אותם אבותם ונולדו בין הקראים וגדלו אותם על דעתם הרי הוא כתינוק שנשבה ביניהם וגדלוהו ואינו זריז לאחוז בדרכי המצות שהרי הוא כאנוס ואע"פ ששמע אח"כ [שהוא יהודי וראה היהודים ודתם הרי הוא כאנוס שהרי גדלוהו על טעותם] כך אלו שאמרנו האוחזים בדרכי אבותם הקראים שטעו לפיכך ראוי להחזירן בתשובה ולמשכם בדברי שלום עד שיחזרו לאיתן התורה: The Orthodox Rabbinate’s conflation of homosexuality as a biblical prohibition and their secessionary view of the Jewish community coupled with their unwillingness to engage the halachic process has led to an untenable position and is ultimately causing a breakdown in Jewish life. The Rambam very clearly articulates that the heretic is the one who denies the Oral tradition using his own personal value system to deny the halachic process. This, for the Rambam is the ultimate apostasy. Today’s Orthodox rabbinate articulates that homosexuality is a biblical prohibition while we are well aware that the biblical prohibition is only related to anal sex. Romantic relationships between two men are not mentioned in the biblical text. This conflation of biblical prohibition with communal homophobia has misled the people and led to shame and ultimately devastating consequences. Some might strongly argue that the Rambam’s understanding of lo takrivu surrounding a woman in Niddah might apply in the case of homosexuality stating that a homosexual relationship becomes a gateway to anal sex and therefore is a biblical prohibition but I will argue that this no longer applies as prohibiting the relationship has not worked as a healthy deterrent and many have hidden their indiscretions and lived dual lives. Ultimately the prohibition has become the gateway to breaking more sins than the one. As we become more conscious of the psychology of human nature we must recognize that the systems of the past that create an image of sanctity without actually living authentically is in itself a distortion of Torah. In the following section I will show how the Rabbinic distortion has allowed for a breakdown in halacha and communal life and ultimately how the responsibility falls upon the rabbinate. Again I will not be arguing the intention of the pesukim nor the obvious contradiction/disparity between the communities response to the toeva of mishkav zachar and the equally mandated toeva of cheating someone in monetary cases. Here we will look at multiple rabbinic constructs that argue for the need of halacha to respond to breakdowns in Jewish life and the possibility of death, when addressing biblical law. Communal Responsibility vs. Individual Autonomy- The following cases explore the responsibility of the community for the mitzvah observance of another. Are we responsible for someone else’s transgression? And are we allowed to transgress in order to save another from transgression. In the Tosefta Maasrot 2 halacha 5 we see an argument between Rabban Shimon ben Gamliel and Rabbi around tithing. Some background info- We learn from Mishna Challah that one may only tithe from produce that is min hamukaf nearby. One may not tithe from a pile that is closer with the intention that the tithe be counted for the produce on the other side of the field. This is a rabbinic decree that if done even intentionally would not invalidate the tithe. The assumption in the following tosefta is that an am haaretz (layperson) would not know this halacha. משנהחלהאמשנהט החלה והתרומה...אין ניטלין...אלא מן המוקף אמ' לו צא ולקט לך תאנים מן התאנה:...מעשרן ודיי. צא ומלא לך כלכלה זאת:...מעשרן דמיי. במי דברים אמורים? בעם הארץ. אבל בחבר, אוכל ואין צריך לעשר, דברי ר'. רבן שמעון בן גמלי' אומ': בד"א? בעם הארץ. אבל בחבר, לא יאכל עד שיעשר, שלא נחשדו חברין תורמין שלא מן המוקף. אמ' ר': רואה אני את דברי מדברי רבן שמעון בן גמליאל; מוטב יתרמו חבירי' שלא מן המוקף ואל יאכילו את עמי הארץ טבלים. One says to another go out and gather some figs, In this case the tosefta teaches that the gatherer must tithe the figs with full legal force as we assume that since the owner did not suggest a measure of figs they have not been tithed. In the case where one says to another go and fill this basket, one tithes with doubtful legal force since the offering of a basket signifies that it is possible that the owner will have already tithed. A question is raised what are these cases referring to? The case of one who is an am haaretz (a lay person) but in the case of a chaver (one who is well versed in halacha) we can eat without tithing according to Rabbi. Rabban Shimon Ben Gamliel (Rashbag) responds this is a case of an am haaretz but in the case of a chaver we definitely tithe, for a chaver would never tithe from a pile of produce that is far from him. In both cases Rabbi and Rashbag agree the above cases refer to the owner of the field being an am haaretz but the ending of the responses differ. For Rabbi a chaver would have tithed already; for the Rashbag the chaver would never tithe from produce that is far away so we assume that the tithing responsibility falls on the gatherer. The next statement is the most interesting. Rabbi responds “I see my words more than the words of Rashbag- It is better for the chaver to tithe from that which is not close by in order to prevent the am haaretz from transgressing.” Rabbi’s statement here articulates his value system. We are responsible for the lives of our fellow Jews. This becomes even clearer in Masechet Eiruvin. בבליעירוביןלב: במאי קמיפלגי? - רבי סבר: ניחא ליה לחבר דלעביד הוא איסורא קלילא, ולא ליעבד עם הארץ איסורא רבה. ורבן שמעון בן גמליאל סבר: ניחא ליה לחבר דליעבד עם הארץ איסורא רבה, ואיהו אפילו איסורא קלילא לא ליעבד. The Gemara in a replay of the Tosefta asks directly what are they really arguing about. For Eiruvin it is clear, Rabbi believes we are responsible for the actions of others. If a chaver has an opportunity to make a minor transgression in order to keep an am haaretz from making a major one, he should. The Rashbag’s opinion on the other hand is that the chaver (Torah scholar) would prefer the am haaretz to commit a major sin so that he should not have to make even a smaller one. According to Rabbi if we can prevent one from making a greater sin by performing a lesser one we should act. The Rashbag’s stance is even more difficult than first articulated in the Tosefta. The Gemara implies that to the Rashbag we would rather an unlearned person make a sin rather than a learned person, no matter the level of sin. This has multiple ramifications. According to Rabbi we are responsible for the spiritual well being of others which also implies that we are not living for ourselves but rather for klal Yisrael. For the Rashbag on the other hand, the hierarchy of Torah wins out and the community is not as important as its most valuable parts. This discussion will continue to play out in different ways. In the Bavli’s Masechet Shabbat 4a we encounter a case of one who accidentally puts dough in the oven, forgetting that it is shabbat. R. Beivai b. Abaye asks: Do we allow person A to remove the dough of person B to prevent B from a guilt offering? R. Sheshet swoops in and quickly puts the question to rest. “Do we tell someone to sin so his colleague can benefit?” In this case it is clear to the Ramban and Sefer Hameshulam that having to bring a sin offering would only cause person B to lose some money in the form of a sacrifice and R. Sheshet would not advocate a small sin of another to prevent the limited financial loss to B. But it is the conversation in the Tosafot that becomes most interesting. The Tosafot looks at this case and wonders why it is different from the case in Eiruvin and articulates four possibilities why we might allow one to sin for another in Eiruvin and not here; three of these apply to our case תוספותמסכתשבתדףדעמודא .1 התם כדי שלא יאכל ע"ה טבל על ידו דאמר לי' מלא לך כלכלה של תאנים מתאנתי אבל הכא שלא נעשה האיסור על ידו אין אומרים לו חטא אפי' איסור קל שלא יבא חבירו לידי איסור חמור.
In order that the am haaretz not sin through the actions of the chaver we permit a smaller sin to protect the chaver from being responsible for the greater sin of the am haaretz.
The tosafists in the spirit of the Rashbag, surprisingly, who holds that we are not responsible for the actions of the other, recognize that if a chaver causes one to sin the chaver will be held liable. This understanding places responsibility on the Orthodox rabbinate if their homophobia has created a situation where the gay man in suppressing his homosexuality leads him to transgress in countless other ways. Oftentimes this becomes a value based decision about which mitzvah is graver. In this case it is clear that mishkav zachar can be considered a greater sin on its own but, the human ramifications implicit in the consequences of continuing to prohibit it far outweigh the single statute the individual might transgress. Using the understanding of the Tosafists it is clear we are responsible if we cause another to sin. Therefore the Rabbis are in a no win situation, if they continue the prohibition of mishkav zachor or do not. In either case they will be liable for another’s transgression. But in permitting mishkav zachar they have permitted a single transgression that only affects the individuals involved. While continuing to prohibit mishkav zachor leads to countless other transgression between the indidvidual the family and the community while putting the lives of many in danger. .3 ועוד י"ל דדוקאהיכאדפשע קאמר וכי אומרים לו לאדם חטא כדי כו’ The Tosafist’s third explanation is that we only prohibit a smaller sin to save one from a larger sin if the individual is not considered a poshea- bad actor i.e. negligence In the case of homosexuality, as informed by the medical understanding, biology is a factor in one’s sexual orientation. This in-born desire can not be seen as poshea for it is a God- given attribute. Some might argue that men are choosing this life and they do not have a biological basis for their sexual orientation. But the debilitating effects this personal realization has on an individual growing up in a religious community leads me to recognize that the thought that one in the orthodox world would choose to take on a homosexual identity without actually having a deep desire is faulty, as most desire to fit in to their communities and follow the mores inherited. The persecution that one faces would make it difficult to argue that one would take on this sexual orientation if it was not deeply present. As Harav Morris Raphael states, “Man cannot be blamed for anything he is compelled to do…and as such an action is not the offspring of his own free will, he may not be blamed for its commision.” .4 תוספותשבתד. והא דתנן בהשולח (גיטין דף מא: ושם) מי שחציו עבד וחציו בן חורין כופין את רבו ועושה אותו בן חורין ואע"ג דבהאי פירקא (דף לח:) א"ר יהודה כל המשחרר עבדו עובר בעשה דלעולם בהם תעבודו שאני פריה ורביה דמצוהרבההיא כדמשני התם בר"א שנכנס לבה"מ ולא מצא שם י' ושחרר את עבדו להשלימו לי' מצוה דרבים שאני In Mishna Gittin we are taught that in case where there is a mitvah rabba “a great mitzvah” might be a reason to permit an otherwise prohibited act. For example an owner can emancipate a half free slave in order to fulfill a positive commandment of having children even though Rabbi Yehuda holds that freeing a slave is a failure to fulfill a positive commandment. Tosafot Shabbat 4a The Mishnah teaches that we force an owner to emancipate half-free/half-slave man so that he can have children even though we have a tradition in that same chapter of Talmud that emancipating a slave is a failure to fulfill a positive commandment [to maintain Gentile slaves in perpetuity.] [Tosafot want to know why the Mishnah thus seems to permit violating one commandment in order to allow someone to perform a mitzvah.] The explanation used here of a mitzvah Rabbah that would permit one to sin to prevent another from sinning plays out in our responsa again and again. The father who is forced to chase after his daughter on shabbat if she is being taken by an apostate in fear that she will convert. Or similarly the father who can chase his son on shabbat who runs away to convert to Christianity. The doctor who can drive to the hospital on shabbat to save a life etc. These cases have similar foundations, the possibility that a Jew will no longer be able or willing to celebrate another shabbat becomes precedent for overruling all sorts of biblical prohibitions. In this case if we do not address the issues and find a way to permit we risk losing more and more people to a life without Torah observance and more importantly to death. וכי אומרים לו לאדם חטא בשביל שיזכה חבירך. והא דאמר בבכל מערבין (עירובין לב: ושם) רבי סבר ניחא ליה לחבר דליעבד איסורא קלילא ולא ליעבד עם הארץ איסורא רבה. התם כדי שלא יאכל ע"ה טבל על ידו דאמר לי' מלא לך כלכלה של תאנים מתאנתי אבל הכא שלא נעשה האיסור על ידו אין אומרים לו חטא אפי' איסור קל שלא יבא חבירו לידי איסור חמור. ואומר ריב"א דאפי' למדביק עצמו אין לפשוט משם להתיר דהתם עדיין לא נעשה האיסור ומוטב שיעשה איסור קל ולא יעשה איסור חמור על ידו אבל הכא המעשה של איסור כבר נעשה וממילא יגמור לא יעשה אפי' איסור קל בידים והא דתנן בהשולח (גיטין דף מא: ושם) מי שחציו עבד וחציו בן חורין כופין את רבו ועושה אותו בן חורין ואע"ג דבהאי פירקא (דף לח:) א"ר יהודה כל המשחרר עבדו עובר בעשה דלעולם בהם תעבודו שאני פריה ורביה דמצוה רבה היא כדמשני התם בר"א שנכנס לבה"מ ולא מצא שם י' ושחרר את עבדו להשלימו לי' מצוה דרבים שאני ועוד י"ל דדוקא היכא דפשע קאמר וכי אומרים לו לאדם חטא כדי כו’ ואתי שפיר הא דאמרי' בריש תמיד נשחט (פסחים דף נט. ושם) דאתי עשה דפסח שיש בו כרת ודחי עשה דהשלמה וקא עברי כהנים בעשה דהשלמה ומקריבין למחוסר כפורים כפרתו כדי שיביא פסחו וכן בפרק בתרא דעירובין (דף קג: ושם) כהן שנמצא בו יבלת חבירו חותכה לו לו בשיניו אע"ג דהוי שבות וגבי חציה שפחה וחציה בת חורין שנהגו בה מנהג הפקר וכפו את רבה בהשולח (גיטין דף לח:) משום שהיתה מחזרת וממציאה עצמה לזנות ודומי' לאנוסין והוי נמי כמצוה דרבים: The Response to the question: The case in Eiruvin starts a conversation on communal responsibility vs. individual. It seems that there are 2 opposing values that permeate this discussion. The Rashbag holds the opinion that we are not responsible for the other while it seems clear that Rabbi believes we are responsible for the other. The Rabbis use these two strands in responding to many questions through the ages. Although the underlying value of each might appear to oppose the other, the way they play out in reality may allow for similar actions in the world. There are multiple cases where we would ask (and possibly force) one to transgress in order to save another. Using concepts of mitzvah Rabbah (a great mitzvah that upholds a stronger value) and Issur al Yado (causing another to sin) we find ways of allowing one to commit one sin in order to save another from a bigger sin. Mitzvah Rabbah is a legal mechanism that allows (requires?) one to transgress in order to uphold a higher value. These values span from allowing a slave to be freed to complete a minyan to a woman being saved from conversion in order that she have the ability to celebrate more shabbatot, to breaking the shabbat in order to save a life. The usage of Mitzvah Rabbah as a halachic tool in order to place strong value on communal life (praying in a minyan), a life that praises God (ability to fulfill more shabbatot) and pikuach nefesh (saving lives) emphasizes for the modern day Jew the understanding that Torah has been given with a set of underlying values. It is not the letter of the law that is the goal but rather the underlying values that are inherent in its system. This underlying value system allows the rabbinate to limit the possibilities of fulfilling the command of Ben Sorer U’moreh as it becomes clear that as societal norms change this act no longer holds God’s underlying value. This might be difficult to swallow, the idea that society's changing values can effect God’s values can seem brazen but what we must recognize is that as society evolves, God’s expectations evolve. We can no longer gain merit for treating slaves kindly. In today’s world slavery is a moral turpitude. But during biblical times the voice of Torah is forward thinking when it imagines a world where slaves are treated with more respect. The Torah can not move faster than humanity and so the written Torah is coupled with the Oral so that as we experience Horaat Shaah (the changing realities of modernity) the Torah’s value of justice may be superimposed upon the living realities of the day. Many worry that this type of analysis will lead to a slippery slope, but in this case we have quite the opposite effect. The prohibition of Mishkav Zachor has created the slippery slope. The continued promulgation of shame heaped upon the LGBTQ community has led to graver transgressions. The relationships of today have a limited connection to those of the past, marriage as a family's way of expanding its power, whether financial or political, is no longer the norm. A woman needing the protection of a man is no longer the norm and the idea that two men marrying creates a breakdown in ethical living is no longer the norm. Today’s homosexual couples that have healed the trauma of non-acceptance in the world are just as likely to create homes that espouse Torah values and raise healthy children. On the other hand, continuing to promulgate the biblical prohibition as God’s value ultimately leads to the opposite. Issur al Yado follows the Rashbg’s thinking that we are not responsible for the sins of another unless we cause the other to sin. In the case of Eiruvin the Tosafot argues that the reason that the Rashbag permits in this case is not because the Rashbag believes that we are responsible for the other but rather because the Rashbag is concerned that if the am haaretz does not tithe the produce the chaver is responsible for the am haaretz sinning and therefore the chaver is allowed to tithe from afar (a small transgression) in order to save himself from being complicit in a larger transgression. Surprisingly the Rashbag’s position lays a foundation for the ultimate recognition that the orthodox rabbinates upholding of the biblical prohibition and its shaming tactics used to perpetuate it ultimately hold them responsible for the consequences of these actions. The rabbinate becomes responsible for the suicides, drug abuse, infidelity, illness and pain of the families of those they shame and convince to repress their homosexuality in the name of Torah. In permitting homosexuality the chaver will be responsible for the transgressions of mishkav zachar but will no longer be responsible for the death, drug abuse, and breakdown in families of our most vulnerable populations. The question posed by my friend the Syrian Rabbi whether he is permitted to prohibit homosexuality is a question that pushes back on Orthodoxy’s stance. The question in and of itself is a brave one. His stance on this issue will probably undercut his standing in the Orthodox world but clearly his willingness to grapple with this makes it clear that he is no longer willing to live with the guilt that comes from following the distorted view of his colleagues. It is clear that according to the Rashabg, a rabbi/chaver is permitted to make a smaller sin to prevent the chaver from being responsible for the am haaretz making a greater sin. In the case of homosexuality it is clear that the prohibition of homosexuality has led to countless situations that create a danger for the individual, the family and the community. This is clearly a case of mitzvah rabbah. And therefore using the rational of the Rashbag through the view of the tosafists in addition to mitzvah rabbah responds to the rabbi’s question. Not only must he tell his congregant that he must not deny his homosexuality, he must encourage the man to accept his homosexuality and reconcile his societal shame and live a life of integrity. If the Rabbi does not his hands are dirty and the Rabbi becomes responsible. Conclusion: The prohibition of mishkav zachor in the biblical text leaves today’s modern day reality in a complex bind. Struggling to maintain the biblical ideal with the modern day understanding of homosexuality leaves humanity in a crisis of biblical proportion. Are we to sacrifice human life for an ancient view of a healthy reality? When can we as a community recognize that the tools of the past are no longer effective in creating a people that share God’s vision for a just existence? The Orthodox rabbinate has chosen to ignore God’s sense of justice in order to embrace its view of halacha. It seems that a people, so pained by the intergenerational trauma of the past, are holding steadfastly to a rule book that can guide their life without the thoughtfulness that is required to live in today’s reality. When that rule book becomes ossified, when rules become more important than people, we must question their validity. We must reevaluate to determine whether we are fulfilling God’s vision. In the preparation of this Teshuva I had the opportunity to speak to many in the Orthodox world and the common phrase I heard throughout was “If you want this Teshuva to be taken seriously you must make a halachic argument.” As if to say that an argument based on pain and suffering in the world is not halachah. This deception is on overarching theme of today’s orthodoxy. Pain and suffering, shame and embarrassment, death and the breakdown of Jewish life have been used in responsa as reasons to permit behaviors otherwise prohibited in biblical and rabbinic text for generations. The problem is not in the methodology that halacha espouses but rather the people who have distorted it. This too is a common trope- the ideals placed on humanity are oftentimes distorted by those that employ them. Limited understanding, egoic control and a desire to live amongst people that are the same as one another cause many good people to behave poorly. As the leaders of the Jewish faith we hold a responsibility that supersedes the norms of humanity. It requires us to dig beneath the defense mechanisms of human development and find the God spark that lives within us. The Torah written millenia ago was written for that time and space, its truth recognized as a changing reality that required an oral tradition. As we’ve established from the beginning of this response, the Oral tradition was received by Moses at Sinai. Moses saw my struggle and prayed that when we stand today in a changed reality that the values inherent in Torah of a just society would be revealed above all else. Moses hoped that we would not allow our egoic structures to maintain a fear based reality that denys humanity but if we follow this understanding of Torah m’Sinai then we must recognize that Moses as the leader of a people enslaved understood intergenerational trauma. Moses and especially God understood that a people that had lived their lives in fear, suffered in a way that could not see reality. Blind to the freedom that lay before them. Today we know that intergenerational trauma is a real psychological condition. For a people who have been oppressed for millenia coupled with the mass murder of the holocaust it is no wonder that our rabbinate is stuck in a fear induced traumatic view of the world. But at the end of our story God teaches the ultimate lesson, even the greatest leader of all time, Moshe, can not enter the promised land, as he continues to hold the pain of the past. It is time to recognize that those of us that are living in fear, that are not able to live in today’s reality take a seat and heal their pain so that new leaders can rise up without the trauma of the past and guide us into a promised land where justice rains down and the people are lifted up. May we be blessed with the healing required for the messianic vision where God’s justice reigns supreme and we are freed from fear. Author’s Note: To be honest the answering of this teshuva has put my integrity on the line. The Orthodox community is clearly responsible for the breakdown that is happening surrounding both agunot and homosexuality. the back flips that have gone through here to prove this point is an insult to Boreh Olam and to humanity. The fact that men in powerful positions are using their power to control people is the greatest sin of all and for me to even address it has given it more attention than it deserves. The Torah set out to give us a roadmap for just living but its tools are, only that, tools. Just like the abused child who goes on to parent another and goes to hundreds of parenting classes and learns the intellectual skill of parenting unless the child within the parent is healed from their own abuse that parent will continue to perpetuate abuse. The system of Torah is beautiful but Boreh Olam based that system on deep internal work that is required to actually follow the system without distorting it. Today we see a rabbinate who has not done the internal work necessary to lead and we continue to put our faith in them even though they are responsible for the most hideous of crimes. I am no longer interested in engaging in the hypocrisy. I will no longer lay my Torah values to the side when engaging Halacha just so I can be considered backwards compatible and fit into a corrupt system. The tools of Torah were meant to evolve with the needs of the community. When Torah is used as an attempt to control others and creates a loss of physical, spiritual and emotional death it is akin to us becoming philosophical suicide bombers, choosing to see a world where destroying others will get us closer to salvation. This is not a Judaism I am interested in. The bottom line here is that the prohibition of Mishka Zachar no longer works in today's society and it encourages shaming, bullying and abuse and leads to death in all of its forms. There is no question that we are responsible for all of this if we continue to perpetuate the biblical commandment. As a rabbi, as a human as a child of God I am willing to hold the sin of mishkav zachar for all who engage so as not to hold the hundreds of others that are done to prevent it.