“The Halakhah of Same-Sex Relations in a New Context” by Myron S. Geller, Robert E. Fine, and David J. Fine

Reference: Rabbinical Assembly

The present reopening of formal discussion on homosexuals and their sexuality in Conservative Judaism does not vitiate the importance of our earlier teshuvot on this subject. In a series of responsa by Conservative writers in 1992 and since, some approved by the Committee on Jewish Law and Standards, others rejected, some submitted in reaction to approved teshuvot and others never having come before the CJLS at all, traditional halakhic sources about those who engage in same-gender sex relations have been fully identified and explored, recorded and debated. These sources are already in plain view and there is little that new teshuvot will uncover in the halakhic canon to impact the outcome of our current effort.

There is not much disagreement about what the halakhah was, only whether it is now possible and necessary to decriminalize gay sexuality and allow homosexuals equal participation in our religious life from the present time forward. Some of us are restrained by the assumption that the halakhah is immutable. They see Scripture’s sexual ethic as unchallenged by the passage of time and sufficient for the contemporary Jewish community. Others, in response to a shift in their own and society’s perception of homosexuality, would reinterpret the halakhah. Given the transformation in our understanding of the subject in recent decades, that is, widespread agreement that “sexual orientation is most likely the result of a complex interaction of environmental, cognitive and biological factors…..shaped at an early age,”1 and its “enduring” character, they no longer view homosexuality as a choice or gay sexual behavior as deviant or unnatural and would remove some or all restraints to which homosexuals have been subjected heretofore.

As we deliberate on this matter we must in our view balance our obligation to the halakhic record and its method against the uncertain but insistent claim of contemporary sexual ethics. The posek should consider the impact of social, ethical and scientific change in the interpretation and development of halakhah. A teshuva should be more than a look at sources and precedents, it must reread them in light of current circumstances, perceptions, and realities. The historical and evolutionary character of halakhah is not unique to Judaism, it is a significant element in any vital legal system. It presupposes a creative role for the posek as well as an archaeological one. This has been true since the earliest days of halakhic debate and decision making.

The tension between past and present has created an open flexibility in the Jewish legal system that has sometimes encouraged the emergence of diametrically opposed views of halakhah. This will no doubt be a feature of our present undertaking and will demonstrate once again that Jewish law does not express the unambiguous thundering voice of God, only the limited attempts of limited human beings to discover God’s will and to express it in their own formulations.

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