No Apologies. Just True Orthodoxy, by Rabbi Asher Lopatin

In the past few months, forces have made my good friend and inspiration, Rav Hyim Shafner, apologize for several things he has said.  I do not begrudge him those apologies, if it helps him navigate the political world we live in.  But I do want to set the record straight:

1) If a couple – whether they be same sex, other sex, intermarried, etc – are part of the community and they adopt a baby, or celebrate that child’s birthday or bar mitzvah – that child deserves to be celebrated.  Celebrating the Bar Mitzva or the adoption of a child just – with a cake at kiddush, or with the entire kiddush – just means that Judaism is happy for kids to have loving and caring parents.  It does not mean that the parents are a good match, a halachic match or even bashert.  It is just a celebration of a family.  Families come in all shapes and sizes – some halachic, some not.  Our responsibility is to make sure that the kids see Judaism as beautiful and as compelling as possible.

2) Rav Hyim’s hypothetical case of a non-Jew getting an aliya may happen all the time in today’s world when we don’t examine people’s pedigree before they get an aliya.  We do check before we would marry them, but not before an aliya.  If we know that we accidentally gave a non-Jew an aliya, – even if there is a doubt – we can just add an acharon and still have 7 aliyot.  

3) Are the Batei Dinim that are dragging conversions out over several years, making potential converts miserable actually violating the prohibition of “innue hager”?  Rav Sha’ar Yashuv HaCohen paskined that they are considered geirim once they are involved in the conversion process.  So it would seem that our Batei Dinim are at list happy to risk violating this Torah prohibition, in order to be extra extra sure that they follow the strictest opinion possible to convert people.  Frequently they process conversion candidates inefficiently and painfully by making them have to face a bunch of rabbis who are not trained in the field of conversion, and are not doing it professionally.

 

No more apologies when it comes to values like welcoming Jews to shul, or making people feel comfortable in a Beit T’fila – a place of prayer and Torah – or when it comes to treating those who want to be Jewish with dignity.  The Torah asks us to stand up, and Morethodoxy is about standing up for these Torah values.

Rabbi Asher Lopatin

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38 Responses to No Apologies. Just True Orthodoxy, by Rabbi Asher Lopatin

  1. Levi says:

    You didn’t mean to suggest that Rabbi Shafners apology was just for political reason and not sincere, did you? Although some of us do not agree with Rabbi Shafner in Hashkafa, those of us who have had the opportunity to meet him know that he is a man of great middot.
    As far as the cake, there was a reply that brought up an earlier post where Rabbi Shafer inquired what would be wrong with a cake at a kiddish celebrating a homosexual union and their dedication to raising a Jewish family.
    There was also another criticism of the aliya that suggested that since the fact that the man wasn’t Jewish was known for some time, it should have been dealt with earlier in order to avoid the issue altogether. Was it wrong for Rabbi Shafer to agree?

    • Anonymous says:

      I was just saying that Rabbi Shafner has every right to write a retraction to sooth political and communal sensibilities. I want to make sure that he knows that we all appreciate his power, creative and thought provoking ideas, and that many are backed up by halacha rather than negated by it.

      Asher Lopatin

  2. Rabbi Lopatin,
    If a brother and sister are living together and have a baby, should that couple be welcomed into the community, should that baby be celebrated in the same way as any other baby. What about a mother and son, father and daughter? I think you are misleading your readers by implying that any orthodox rabbi/person from any camp hates or rejects children. That is not what the discussion is about at all. The way you have framed the issue trivializes a situation which the Torah describes as Toevah, which is assur for a non-jew also, and which is in the category of Yehareg V’al Yaavor. Chazal tell us that it is preferable for a man to die rather than talk to the married woman whom he is lusting after, which might cure him. The Rambam paskins even if she is single, better to let him die rather than create a situation which might erode the moral foundation of the community. What disturbs me about your article is that you seem to self-righteously claim the exclusive mantle of empathy and compassion. In fact, it may very well be that your compassion and empathy is a case of
    “being merciful when you should be brutal” which in the end will lead to one’s being “brutal when he should be merciful.”

    We live in a society which, in the name of “women’s rights” murders millions of unborn babies every year. I don’t think it is coincidental that the same camp which gave us the mass murders of unborn babies is zealously pushing the homosexual agenda also.

    • Asher Lopatin says:

      Rav Moshe,

      Every point you make is a major discussion amongst the Rishonim and the poskim. First, there is broad discussion re. the gmarra that it is better to die than talk to a woman lustfully: some say it was only for that time, others, supported by Rav Ahron Soloveichik, reject “abizrayhu d’arayot” which implies that anything connected to lustfulness deserves the “better to die than to…”. Rather, everything is judged on its own severity. Re abortion: Your quip about mass murders sounds like a Christian fundamentalist remark. They have every right to say it – they don’t have a rich Talumudic and Rishonim tradition. But we do!! Yes, we are still Rabbinic Jews, no? So of course there are many poskim, Rav Ahron Soloveichik, Rav Waldernberg, many others who believe that almost all abortions, while problematic in many ways, are not killing. Rav Ahron, especially in the last 10 years of his life, would council a woman raped, or with a genetically diseased fetus, to abort – unless she was so strong that she could raise such a child. In fact, in cases of rape or incest, he would tell them to get an abortion immediately, up to the seventh month – and even beyond, till actual labor, when, according to some interpretations of the Rambam, the fetus becomes its own life. Partial birth abortions are an issue of killing, but, there, too, there may be issues of rodef – persuer – that have to be looked into when the life of the mother is at risk. The point is that you write as if there are no two sides of all these issues, and there are.

      But my basic point is that I feel as a rabbi, as a shul and a loving and welcoming community, we do not make public policy and idealogical points using personal relationships. I support same sex adoptions, as I do single parent adoptions, and, frankly, if the parents, of whatever form, are going to be loving and supportive of the kid, I don’t care what their relationship is. And likewise in shul: We welcome families who are caring and loving and that’s that. One rabbi in Cincinnati involved with Rabbi Greenberg said that no matter how much he disagree with what they did, he would welcome him and his partner in shul. Some shuls said no – welcome them into the shul sends a message of acceptance. But I paskin like that frum rav on the point of welcoming everyone to shul. But I apply that to welcoming their child as well.

      Asher Lopatin

  3. minda says:

    the term mass murder is scary.

    Would the author be equally comfortable with those who liberally refer to holocausts?

    • Moshe Averick says:

      Minda,

      I don’t know what else to call what went on at George Tiller’s “clinic” or Gosnell’s “clinic” or the other locations where perfectly formed babies are unceremoniously thrown in plastic garbage bags and body parts are thrown in dumpsters. In my opinion, it is perfectly valid to compare it to the holocaust. What is even more frightening is that we are so used to it.

  4. Yerachmiel says:

    “If a couple … adopt a baby, or celebrate that child’s birthday or bar mitzvah – that child deserves to be celebrated. Celebrating … just means that Judaism is happy for kids to have loving and caring parents … Our responsibility is to make sure that the kids see Judaism as beautiful and as compelling as possible.”

    So let me see if I have this right.

    Two men adopt a baby and raise this child in an environment that says that it is acceptable for two men to live together intimately. (By the way, if the child is a boy there is probably an Issur of Yichud. And if it’s a girl, by dint of Lo Plug there is also an Issur of Yichud. In other words, the adoption itself is Assur.) So these two men find three clergymen of the Jewish faith who somehow declare that this child, who will be raised in an environment that publicly flaunts Torah family values, is Jewish.

    This is something that should be celebrated in a Shul?? “Judaism is happy…” with this dysfunctional situation? What message do we send to our community when we conduct a Simcha in Shul in honor of this blatant violation of Torah Law??

    It seems to me that if this child would be adopted by a functional, conventional Christian family that that would be much more deserving of celebration.

    Or, how about this scenario? Jewish man marries non-Jewish woman who bears him a non-Jewish son. She doesn’t want to “mar” her son with circumcision, but a local reform clergyperson “bestows” Jewish status upon him.

    The Jewish grandparents of this surely-to-be-raised-confused Gentile child wish to celebrate his birth in shul with a Kidush and a cake?

    Do we celebrate this “family’ as well?

    • Asher Lopatin says:

      Rav Yerachmiel,

      Yes, our shuls and communities need to learn to celebrate love and compassion even when it is attached to dysfunction. It’s a difficult world, and there are plenty of opportunities to push for normative Jewish families. But even normative – man/woman – families are dysfunctional. Let’s not get into a discussion of the Avot and Imahot – the dysfunction in these early families. They were setting up the standards – just as much by the mistakes they made as by the righteous deeds they did, and many of our dysfunctional families – by working with the imperfection they are blessed with by Hashem – are establishing the families of the future. And, yes, I celebrate Christian families adopting kids, and Jewish families adopting kids.

      On the issue of Yichud – being alone – with an adopted child. Rav Ahron Soloveichik said that even the Lubavitcher Rebbe, zt”l, who felt there were issues of yichud, referred people who wanted to adopt to Rav Yoshe Bear who ruled (like Rav Ahron) that there was no issue of yichud amongst the family, whether it is a genetic family or not.

      Asher Lopatin

      • Yerachmiel says:

        Do you REALLY believe that Rav Yosha Ber Soloveitchick would have approved of allowing two men who are Choshud al Mishkav Zachur to be alone in a secluded room with a little boy on the basis of a piece of paper?????

        Do you really believe that he would have supported this adoption?

        Do you really believe that the Rav would have made a Lechaim and wished Mazel Tov to two homosexual men who had taken a little child into their home and raised them to believe that Gilui Arayos is something to celebrate with a Shehechiyanu and a Neder to only commit Gilui Arayos with one person at a time?????

      • Asher Lopatin says:

        Rav Soloveitchik is on record – I heard the tape – that his school in Brookline, Maimonides, allowed non-halachically Jewish kids from intermarriages (Jewish father only) to be part of the school. He says: These people are going to be part of our community, so we have to take them in and hope they will convert… Rav Ahron, zt”l, gave me the same advice when we set up our school, the Chicago Jewish Day School, just 10 years ago. I don’t know what either of them would say re. homosexual couples, but I feel I am using their approach of embracing those who want to be part of our communities. He could have said: Accepting patrilinial kids will mean we are accepting intermarriage. Do you think the Rav or Rav Ahron approved of intermarriage??? Of course not. But they understood the correct approach for a community to deal with a crazy world.

        Asher Lopatin

  5. Listen, it’s a free country and you can do what you want but please be religiously honest and stop calling it Orthodoxy when it flies in the face of what the halacha considers acceptable behaviour.

    • Asher Lopatin says:

      Garnel,

      The Torah, according to our rabbis which all Orthodox Jews are supposed to see as their authority in interpreting halachically what the Torah is saying, prohibits one specific sexual act. The Torah, and Chazal, don’t even refer to homosexuality as “erva” so it is unclear if any of the harchakot that apply to niddah apply to homosexual couples. So, frankly, even though we have no example in our tradition of men making a life co-habitual commitment to other men, same sex civil unions do not actually “fly in the face of what halacha considers acceptable behavior.”

      Just as so many Batei Dinim ignore the multitude of laws prohibiting torturing the convert, and a candidate for conversion, many, many Orthodox – and Conservative – poskim ignore what the Torah and Chazal and Rishonim actually say about same-sex relationships, and, instead, pick up their attitude from the American Puritanical tradition. For Christian Protestants, that’s fine. For Jews, and especially those who take our tradition seriously, this is something that needs self reflection.

      Asher Lopatin

      • The Torah does not describe the homosexual relationship as an ervah but that means nothing for two reasons:
        1) Many of the arayos do not have the “ervah” designation but are understood to be arayos because that’s the section of the Torah they’re in. Homosexual relationships are in that section, therefore they are ervah.
        2) Even if you were correct, the Torah specifically calls homosexual relationships to’eivah which is hardly any better, or possibly even worse.

        Further, you take the Written Torah in isolation of the Oral Torah where this is all fleshed out a great deal further. How many rabbinic enactments are made to avoid homosexual types of interactions? Have you learned the relevant sugyos? Are you simply dismissing them because they’re not politically correct?

        The argument in your second paragraph is even weaker: two wrong makes a right? Because some batei din don’t behave properly it’s okay to further pervert Jewish law?

      • Asher Lopatin says:

        It’s not true that “many of the Arayos” are not called ervah. For something to fall under the issue of “bal tikrevu legalot erva” it has to be erva.

        What is remarkable is how our tradition has gone out of its way to not prohibit same gender interactions – men dancing with men, women dancing with women, men sleeping in the same room or even bed with other men, etc.- at least not between Jews. True, frequently the understanding is that the Jewish people are not suspected of the prohibited homosexual encounter, but that suggests that even more so, we should not suspect two men living together as a couple of violating the singular Torah prohibited act of homosexuality.

        It is the political correctness of the Right, based on a Christian interpretation of the Bible and our the Judeo-Christian culture, that leads to prejudice and lack of accuracy when interpreting the Jewish tradition.

        Rabbi Asher Lopatin

      • Openminded says:

        same sex civil unions do not actually “fly in the face of what halacha considers acceptable behavior.”

        Hmm… what is your basis for saying this? How do you learn these sources:

        Chullin 92b (top)
        Sifra, Acharei Mot 131-132
        Rambam, Hilchot Melachim Halacha 9:5

      • Asher Lopatin says:

        Do you avoid being alone with a gentile? That’s in Even Haezer 24. Does anyone avoid being alone with an animal – as the greats did in the Talmudic times? It is clear that homosexuality is not treated as a classic “erva” where yichud is always prohibited – not just based on the culture you are living in (see Gra and Bach in Chelkat Mechokek ad loc).

      • Anonymous says:

        same sex civil unions do not actually “fly in the face of what halacha considers acceptable behavior.”

        No?

        How, then, do you learn:

        Chullin 92a (op)
        Sifra Vayikra 1385-7
        Rambam Hilchot Melachim 9:5
        Hilchos Isurei Biah 21:1,2; 21:8; 22:1,2.
        Shulchan Aruch Even HoEzer 24

      • Asher Lopatin says:

        There are several reasons religious Jews should approve civil unions for same sex and different sex unions. Chulin 92 a-b is an excellent proof: we don’t want to state in the “ktuba” business. I don’t want the state to endorse marriage of any kind – and that is what a “ktuba” – or a marriage license – does in affect. Rather, I want to state to remain neutral re marriage, but just register civil unions. I don’t want the state endorsing Christianity or Judaism or Islam. Civil union is the way to ensure Chulin 92a-b, not by us making the secular state get involved in the religious marriage and ketuba business.

        Most of your other sources are about non-Jews and homosexuality. I agree that the specific homosexual act is prohibited. But two men living their lives in partnership, perhaps raising kids together, caring for each other in the hospital, that is not a sexual act, and, frankly, is not prohibited by your sources.

        If you support the secular state prohibiting homosexual unions, you should advocate for it to prohibit Jews driving on Shabbat, to prohibit idolatry, etc. Let’s keep the state out of religion, and let’s raise our families to be loving, kind, and committed to Torah.

        Asher Lopatin

  6. Hakohen says:

    The Morethodoxy/Open Orthodox belief system has more to do with political correctness than Torah, and I firmly believe political correctness is an avoda zara.

    I remember your long-winded comments on Amy Rule that was posted on Failed Messiah where you said much, but really said nothing. LIkewise, you post a laundry list of things you stand for, but really you don’t stand for anything.

    Heck, you wrote how Chelsea Clinton marrying a Jew showed us how far Jews have come in American society. That wedding should only have been met negatively by the Torah orthodox world.

    Your way is a touchy-feely way which carries little substance.

    You can read Rabbi Shafner’s posts and replies and honestly state that you believe he is being intellectually honest?

    There are so many valid questions to which he offers no response at all. What I see as rather shallow, you see as “powerful, creative, and thought provoking.”

    Making up a story about Abraham that he failed the Binding of Isaac is certainly “creative”. It is not, however, powerful or thought-provoking. To suggest that this “failure” of our Father Abraham is the reason for Muslim violence is powerfully offensive.

    You guys and gal(s) on the extreme left of orthodoxy are such slaves to political correctness that you can’t see straight.

    I am someone who finds value in the Yeshiva world and the Kollel Mitzion/dati world. I have never found the Morethedoxy, open orthodox, YCT world to be valuable. Chavruta with Cardinals in the YCT Beit Midrash doesn’t give me any inspiration. Celebrating non-kosher unions doesn’t give me any inspiration, and giving aliyot to those individuals you know are not Jewish gives me no inspiration.
    All the moreso, when the Rabbi knew for a long time the person was not Jewish but conveniently didn’t tell him.

    From what I have learned over the years, both the Rav zt”l and Reb Aharon, zt”l encouraged their talmidim to think on their own. However, I believe a number of these talmidim, including you, Rabbi Weiss, Rabbi Hartman, and Rabbi Yitz Greenberg have taken it beyond the pale.

    • Asher Lopatin says:

      Sorry you feel that way. Nobody forces anybody to read Morethodoxy! Wonderful that you like Kollel Torah Mitzion. I hope you go there to learn and that you support them financially as well.

      As far as “political correctness” – as I have said before, it is far more prevalent on the superficial Right, learning from puritanical Calvinist Christian culture, than on the left.

      Rabbi Asher Lopatin

      • Levi says:

        Thank you for clarifying. Basically, we can choose political correctness in order to sound more Christian. By so doing we will align ourselves with such panderers as Rav Moshe Weinstein, Rav Soleveitchik, Rav Kook, the Chafetz Chaim and other such people who were not interested in true Torah ideology but were just trying to “fit in”. Or we can just embrace your true understanding of Mesorah which you’ve received from…which you know to be true because of the Rishonim.
        It seems like an obvious choice!

      • Asher Lopatin says:

        Tova Hartman has a fascinating critique of Rav Soloveitchik in her book “Feminism Encounters Traditional Judaism” where she shows the influence of Kant on the Rav’s thought – and how a Kantian view of the world is more of a break from Jewish tradition (or an innovation of Jewish tradition) than a feminist approach which is really a return to the approach of Chazal to many issues. A must read. Tamar Ross develops the highly innovative theology of Rav Kook, but frankly, I think that is too innovative for me – it gets into ideas of a continuing revelation beyond Sinai. Very difficult to square within tradition.

        All the greats you mentioned were influenced by the world around them, just as Tova Hartman is influenced by the thinking of Carol Gilligan. Through discussion, argument and time, we determine which is Torah and which is not. Time will tell.

        Rabbi Asher Lopatin

  7. Dahan says:

    As a new reader of only a few of your posts and responses to comments, it is my initial impression that you do not hesitate to justify your positions with terse, unsourced references to statements of or disputes among sometimes unidentified rishonim, acharonim and modern authorities. It seems you do so without reciting the particular Talmudic context or facts and circumstances to which their shitot pertain and without stating whether a given position represents the majority view or that generally followed by the poskim. In addition, you seem to have no compunction about declaring your own perfunctory halakhic rulings. And in some instances it appears that you studiously ignore relevant halakhic considerations raised by your interlocutors or other contributors. (If any of this seems off base to you, I think I can offer specific examples.) As I’m sure you know, this is not the way of masa umatan shel halakha (halakhic discourse) and borders on the approach of sevarot kereisiot (visceral rationalizations). Perhaps that is appropriate in a forum of this type, which appears to be reserved primarily for the expression of progressive personal opinion, albeit on sensitive and weighty matters of vital concern to Clal Yisrael.

    You are obviously a fine scholar and thinker who devotes significant time and reflection to formulating your opinions and composing your posts and responses to comments. But that process apparently does not include a comprehensive survey of the primary sources and responsa literature relating to the subject matter. Whether or not my impression is correct on that score, I’d like to respectfully that it behooves you to take a break from your opinion pieces and devote the same time and energy to composing formal responsa for critical review by your rabbinic peers and betters on the halakhic positions you have taken here. In this you would be following in the admirable path of progressive poskim such as Rabbis Yehuda Herzl Henkin, Yuval Sherlow and Shlomo Aviner. By doing so, you, like them, would establish your own bona fides, lend credibility to your halakhic views, address a more diverse and authoritative audience and, in general, advance the halakhic process. To my mind, that would constitute a far more meaningful contribution than informal pronouncements to an audience that, to a large extent, appears to consist of laymen and like-minded peers, many of whom may not be capable of meaningfully evaluating the halakhic validity of your views.

  8. Levi says:

    Interesting. How many years did Tova Hartman spend with the Rav in order to understand his hashkafot so well?
    I think time has told already. Those who were the gedolim always are borne out to be right. The Rav was a gadol nurtured and raised at the feet of gedolim. During the Bayit Sheini, the Chachamim were reffered to as the Perushim- the separate ones. Why? Is it not because they were separate from modern culture and were only (for you-primarily) influenced by Torah? Have you considered the inverse that some Church ideologies were influenced by true Torah ideas? I find it interesting that you assume the gedolim were influenced by the Church, while at the same time you seem to be more in line with the Church’s view of The Pharises!
    You don’t seem to have alot of respect for them. Isn’t a Gadol more than just an intellectual plateau?
    Finally, why do you seem to assume (obviously this is the way I have understood you) that the gedolim were influenced by the Church which has disparaged us and persecuted us throughout its history, but although your’e views which seem so aligned with modern culture are real Torah Hashkofa? If I didn’t know you were serious, I would think you were being sarcastic.

    • Asher Lopatin says:

      Thanks for the feedback. I understand the Netziv in both Haamek Davar and Kidmat Ha’emek to praise our openness to the influence of the world around us. The Chochmot Chitzoniyot allow us to obtain new understandings of our Torah which was revealed in its entirety at Sinai but which requires an eternity to understand. As the Midrash says on “vayhi kichlot” – the Torah is like a bride that takes a lifetime to appreciate. So we should be influenced by the world around us. Feminism, existentialism, humanism, etc. In our rejection or welcoming of these ideas we learn what Hashem’s Torah means.

      But if we push the envelope at Morethodoxy, we have to be ready for the “sleeping giant” to wake up and fight back. That’s the Torah way. Pilpul as the Netziv calls it. We have to welcome the friendly (?) attacks and potches.

      I can tell you that I get constant support from congregants and other rabbanim. We need to be big boys…

      All good wishes to the tigers of Torah,

      Asher Lopatin

  9. Hakohen says:

    Rabbi Lopatin – Considering that the Morethedoxy leaders such as yourself are being fiercely challenged on this site, I don’t see many people “coming to the rescue”.

    I believe you, Rabbi Shafner, and every Rabbi and “Rabbah” on this site have awakened a sleeping giant.

    The more you write the more I believe your “movement” will be marginalized yet further. Actually, I should say the more you don’t write because you choose not to respond to so much.

    If you (and others) are going to take the time to operate this website, then I would think you would give more thought to that which you write or respond (or don’t).

    While Dahan referred to you as “obviously a fine scholar and thinker”, I must say that his overall comments belie his words.

    I am also certain you are very bright, a scholar, and a thinker, albeit misguided.

    As a sidenote, I am very puzzled by how you paint a different picture of the Rav than do Rabbi Aharon Lichtenstein (shlita), Rabbi Hershel Schachter (shlita), Rabbi Meir Twersky (shlita), and the vast majority of his talmidim including my very own brother.

    • Asher Lopatin says:

      Dear Halevy,

      I apologize that I don’t really know whom I’m responding to. I don’t know who your brother is because, with apologies, I haven’t investigate, sorry, who Halevi, Hakohen are.

      But I respect your pushback and appreciate that you and others even read this blog. Certainly Morethodoxy and the reaction to it are raising some differences within the Orthodox world, but rather than feeling marginalized, I feel that in all the pilpul and disagreements, the issues are being taken more seriously, which is the goal of this blog.

      I don’t know how much the Rav was influenced by Kant, but the theories of influence of the outside world are worth considering.

      Asher Lopatin

      • Asher Lopatin says:

        Sorry. I meant to reply to Hakohen. Let’s use our names. Would love to add that more personal side. Asher Lopatin

  10. > It’s not true that “many of the Arayos” are not called ervah. For something to fall under the issue of “bal tikrevu legalot erva” it has to be erva.

    That’s simply not correct. Some arayos are called tevel, one is actually called “chesed”. There is a category of Arayos and mishkav zachar is in there, as much as you might not want it to be.

    > What is remarkable is how our tradition has gone out of its way to not prohibit same gender interactions

    You need to read the Shulchan Aruch, specifically Even Haezer 21:1 and the rest of the chapter before you say that.

    > – men sleeping in the same room or even bed with other men, etc.- at least not between Jews

    Is a machlokes poskim whether or not it’s permitted and if permission is based on Jews not being suspected of homosexuality then it’s probably not permissible today given the high profile that lifestyle is asserting in our community.

    > we should not suspect two men living together as a couple of violating the singular Torah prohibited act of homosexuality.

    Again, many poskim would disagree with you.

    > It is the political correctness of the Right, based on a Christian interpretation of the Bible

    Unfortunately in your case it seems to be a frightful lack of awareness of many important sources that lead to incorrect conclusions, I’m sorry to say.

  11. Dahan says:

    In your responses to Garnel’s comments you state:

    “The Torah … prohibits one specific [homo]sexual act. The Torah, and Chazal, don’t even refer to homosexuality as “erva” so it is unclear if any of the harchakot that apply to niddah apply to homosexual couples.”

    “It’s not true that ‘many of the Arayos’ are not called ervah. For something to fall under the issue of ‘bal tikrevu legalot erva’ it has to be erva.”

    I’m curious about the sources for your position. I’m not a rabbi or scholar, so I apologize in advance for mistakes in my following remarks. Any corrections are most welcome.

    From a quick review of some of the sources, I question your unqualified statement that a forbidden relationship is not erva unless the Torah says so explicitly. From Rambam (lsurei Biya 1:4), it seems clear that the forbidden relationships listed in Vayikra 18 (including homosexual intercourse) fall within the category of arayot, whether or not the term “erva” is used in any given instance. (This seems consistent with the simple meaning of Vayikra 18, which treats all the prohibited categories as a single class, as in verse 24.) In addition, while most arayot offenders are liable “only” for karet, homosexual intercourse is one of the select arayot for which the death penalty is incurred. (Vayikra 20:13; Rambam cited above.)

    Given Rambam’s subsumption of homosexual intercourse under the rubric of the arayot, I also question your unqualified statements that the Torah prohibits only one specific homosexual act and that “lo tikrevu” does not apply to homosexuals, as well as your implicit assumption that “lo tikrevu” is the only relevant prohibition in this regard. It appears from Rambam (Isurei Biya 21:1) that both “lo tikrevu” and “levilti asot mechukot hatoeivot” apply to all arayot (which for Rambam include homosexual intercourse as noted), thus prohibiting various amorous behaviors short of intercourse. (Interestingly, even if homosexual intercourse were not erva, one might argue based on Rambam’s deployment of “levilti asot mechukot hatoeivot” that homosexuals are nevertheless subject to the same restrictions insofar as the primary forbidden behavior is referred to as toeiva.) I also understand from the Sifri on Vayikra 18 that certain conduct short of intercourse may also be prohibited by “kemaaseh eretz Mitzrayim asher yashavtem ba lo taasu,” without regard to erva status.

    In addition, the prohibition of yichud may apply to men under certain circumstances and, arguably, if their conduct is such that they lose the general presumption that Jews aren’t suspected of homosexual intercourse. (See Rambam, Isurei Biya 22:1-2; Shulchan Arukh, Even HaEzer 24:1, with Beit Shemuel and Chelkat Mechokek there.)

    Based on the foregoing, your observation that “it is unclear if any of the harchakot that apply to niddah apply to homosexual couples” strikes me as a bit of a non sequitur. The relevant issue isn’t whether the harchakot peculiar to niddah apply, but whether the distinct restrictions of “lo tikrevu”, “levilti asot” and “kemaaseh eretz Mitzrayim” apply.

    In my admittedly selective review of sources, I didn’t come across indications that other rishonim and codifiers disagree with Rambam in any material respect (except whether “lo tikrevu” restrictions are rabbinic, rather that biblical). I’m hopeful you can point me to specific classical authorities that rule contrary to Rambam or offer alternative interpretations of Rambam that are consistent with your positions.

    • Asher Lopatin says:

      Dear Mr Dahan,

      Thanks for your solid points. Since the Aruch HaShulchan specifies that the Rambam includes Mishkav Zachor with “real” arayot, it’s clear that there is a distinction. I used Nida as an example of erva where, let’s say, negiah derech Chiba is assur from lo tikrevu. Let me ask the question: if there has always been a percentage of people – Jews as well as non-Jews – who have a homosexual orientation/desire, why does no source that I have ever heard of ever prohibit them for same sex dancing? Lo tikrevu is not just because it will lead to something, according to the Rambam and even perhaps the Ramban it is a deoraita in its own right. Yes, of course there have been fears in the poskim that Gentiles of the past might engage in the singular prohibited act, but re Jews, once the suspicion of the singular prohibited homosexual act is removed, there doesn’t seem to be any evidence of “negia” harchakot for anybody – even for the quiet, inactive gay man. That’s the argument.

      Rabbi Asher Lopatin

      • Dahan says:

        I don’t think it’s a fair characterization to say “the Aruch HaShulchan specifies that the Rambam includes Mishkav Zachor with ‘real’ arayot … [so] it’s clear that there is a distinction.” Correct me if I’m wrong, but I think Arukh HaShulchan is saying that in the context of sheniyot le-arayot, Rambam lists those primary arayot that are relevant to the laws of sheniot, but there are four other primary arayot not listed in that connection because they don’t relate to the laws of sheniot — niddah, adultery, homosexuality and bestiality. (Arukh HaShulchan, Even HaEzer 15:24.) The latter four are no less “real” than the other arayot and if you still maintain there’s a distinction, it’s a distinction without a difference. As far as I can tell, Arukh HaShulchan, like Rambam, treats those four as full fledged arayot for all halakhic purposes. (See, e.g., Ibid. 15:1, 20:4 and 24:1).

        As to your question why male-male negia is not general prohibited, it may be that, while all the “lo tikravu” restrictions apply between males like any other erva (as Rambam says), the standards of derekh chibah applicable to male-male contact differ from those applicable to male-female contact for obvious reasons (particularly in light of the halakhic principle that Jews are not suspected of homosexual intercourse or beastiality). If a male were to touch a man in a romantic fashion, the halakha may be that “lo tikravu” restrictions kick-in due to the derech chibah element. In the case of male-male contact between active or even inactive homosexuals, the standards of derekh chibah might be the same as for male-female contact. I hate to speculate on matters that are properly subjects for comprehensive halakhic research and analysis (which might prove my conjectures wrong). But my point is that I don’t think you can call the applicability of halakha pesuka into question on the strength of a query like yours.

        By the way, in posting under an assumed name, I don’t mean to be taking anonymous pot shots from the wings. I do so only for purposes of managing my on-line presence. I’ll be glad to share my identity off-line.

  12. There is a simple reason why male-male negiah in the context of a homosexual relationship is not discussed. The halacha never assumes that a Jew is sinful and then prescribes rules around that sinfulness.

  13. Talia Eness says:

    Thanks for your posts Dahan to set the record straight. Rabbi Lopatin your “no apologies” policy is out of line. You say that Rabbi Shafner’s apology was just to soothe ruffled feathers, but you ignore that his apology for one point was that he missed a relevant halachic factor and on the other point was for not treating a chumra that he doesn’t happen to follow with respect. The implication is that an Open Orthodox rabbi should’t apologize or correct herself even when she’s wrong. Then when Dahan showed (at least to my untrained eye) that some of your statements about homosexuality were wrong, you din’t apologize. You tried to wiggle out with a weak proof from the Aruch Hashulchan (that Dahan says is based on a misinterpretation) and by raising a question as if it was an ‘argument’ for your position, not just a difficulty to be explaned. As an Open Orthodox person, I find this a offensive form of extremism and lack of intellectual honesty that gives the movement a bad name and not only fuels, but really deserves the criticism of the opposition. You create the impression that the rabbis/rabba who post on this site are free to make mistakes unless some policeman out there calls you on it and even then you can’t just admit your wrong. You owe your readers and co-bloggers an apology and you should really look up the halacha before you paskin.

  14. Asher Lopatin says:

    Talia,

    You have to ask Rabbi Shafner whether he was pressured. I just agree – halachically and philosophically – with his first posts. Second, I have seen the sources on fear of homosexual activity in the poskim. As you may have seen even from Ironheart, Jews were exempt from most of them – whether or not they had homosexual tendancies or not. I will – and have – apologized when I make a mistake or paskin wrong. But I will not let right wing, Protestant influenced pressure silence me. You don’t have to agree with me – feel free to agree with Dahan’s interpretation re the Aruch HaShulchan (against the Torah and Talmud’s classification…), but you are naive if you think there isn’t pressure to silence voices that challenge what is perceived as the status quo. And, in fact, Morethodoxy-type leaders need more guts and chutzpa, not less!

    Asher Lopatin

  15. Hakohen says:

    What you call Rabbi Shafner’s “hypothetical case” wasn’t so hypothetical. He knew for some time that this active participant in his shul was not orthodox, but neglected to tell the man he isn’t Jewish. This failure on his part could have led to this person getting an aliyah on Simchat Torah. That is irresponsible on Rabbi Shafner’s part, as he actually admitted to his credit later on (although it is my characterization of it as “irresponsible”, I don’t exactly recall his wording). Anyhow, your checking of the pedigree line for all of us called to the Torah is silly.

    By the way, heaven forbid that I want you and Rabbi Shafner and Rabba Hurwitz silenced. In my opinion, the more you guys and gal write, the more your movement is exposed as being to the left of Torah Orthodox Judaism. I would call you more of a Right-Wing Conservative Rabbi.

    I ask all of you to go find more guts and chutzpah and let it all hang out!

    Let the chips fall where they may….

  16. Hakohen says:

    Clearly I meant to say he knew for some time that this active participant in his shul was not Jewish, I inadvertently wrote orthodox.

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