We are living in an age in which mainstream political discourse is more tribalistic, less civil, more fragmented, less open to correction, and less sensitive to evidence and careful argument than at any time in recent memory. It is in this context that Modern Orthodoxy has recently come in for some criticism from some of its own members.
For example, the politically conservative podcaster and author Ben Shapiro recently penned a lament about “Modern Orthodoxy’s Moral Failure,” largely about what he takes to be the failure of various segments of the community to stand up against what he calls the “LGBTQ+ challenge.” A number of like-minded public intellectuals chimed in with support. See, for example, Yoram Hazony’s tweet: Ben Shapiro, Hazony opines, “is right. There is no way to reconcile a traditional Jewish way of life with the LGBT agenda. The leading figures of Modern Orthodoxy know this. But for all sorts of reasons, they’re going wobbly at just the moment when what is needed is courage.”
I agree that we live in times that call for courageous leadership. But Shapiro and Hazony want to see Orthodox leaders taking the gloves off, and getting stuck into the fight against “the LGBT agenda,” against identity politics, cancel culture, and the transgressive forces of the left. I would urge that something very different is called for right now.
I don’t deny that the Torah contains an explicit prohibition, seemingly against penetrative homosexual intercourse. Having said that, we should be very clear. It has proven pretty much impossible to find any independently plausible philosophical argument upon which to claim that homosexual sex between consenting adults constitutes anything at all immoral.
Don’t get me wrong: that doesn’t undermine the force of the halakhic prohibition. There are all sorts of halakhically binding prohibitions that don’t seem to have any independent ethical basis. Nobody seriously argues that it’s an ethical abomination to eat insects, despite the Bible’s calling such an act a to’eiva (often translated as “an abomination”) (Leviticus 11:41). Indeed, as long ago as Maimonides, there were rabbinic authorities willing to accept that there is nothing unethical about homosexuality, even if, for reasons unbeknown to us, God prohibited a homosexual act. The examples that Maimonides provides, in chapter 6 of his Shemoneh Prakim, of laws that have no basis in reason, and are purely based upon revelation, are the prohibitions regarding the “partaking of meat and milk together, wearing clothes made of wool and linen, and entering into forbidden sexual relations (עריות).” These things are forbidden, but not because they’re always unethical.
Admittedly, my rabbi, Jonathan Sacks was opposed to the legal recognition of gay marriage. He was deeply concerned about the health of the institution of heterosexual marriage, and for good reason. Committed marriages are the backbone of the most healthy family settings in which to raise children, and the breakdown of this commitment, leading to an unprecedented number of broken homes is nothing short of catastrophic. But, with all due humility, I disagree with Rabbi Sacks’s contention that the rise of gay marriage could pose anything of a threat to the institution of heterosexual marriage. On the contrary, I can only see it as a positive development for heterosexual marriage if homosexual couples want to celebrate the values of monogamy and commitment that have so broken down in society at large. I agree with Maimonides. Certain homosexual acts may be forbidden by the Torah, but not because they are in any way unethical.
Given that realisation, and even if Jewish law remains maximally inhospitable to what Hazony calls “the LGBT agenda”, it seems inappropriate for Orthodox leaders to get particularly het up, as if the understandable desire of single-sex couples to live out their lives and their loving commitment to one another in public constituted some sort of moral outrage. It doesn’t.
Admittedly, there is one page of the Talmud that celebrates the fact that, even if homosexuality is widely practiced, at least the Gentile nations agree with Jewish law that there can be no formal marriage between two men (Tractate Chullin 92b). Moreover, there is a Midrash that suggests that the flood, in the time of Noah, was precipitated by the institution of homosexual marriage (Bereshit Rabba 26:5). But two isolated aggadic texts don’t constitute an argument for moral outrage (aggada being the name of non-legal rabbinic discourse, generally seen to be less authoritative over Jewish practice than halakhic discourse).
Part of Shapiro’s argument is that Orthodoxy stands for certain eternal truths that shouldn’t bow to pressure from transient social trends. To that end, he quotes the powerful words of Rabbi Samson Raphael Hirsch:
This word of G-d must be for us the eternal rule, superior to all human judgment, to which at all times we must conform ourselves and all our actions, and instead of complaining that it is no longer suitable to the times, our only complaint must be that the times are no longer suitable to it….
But Rabbi Hirsch’s views about the eternal immutability of God’s word were more complicated than this one quote reveals. In order to get a more accurate picture, think yourself back in time to the days in which African men and women were being captured and sold as slaves. Some brave voices were speaking up for the abolition of slavery, but what would they see if they turned to the Torah? There’s no doubt that the Torah marks a massive improvement in terms of the treatment of slaves in contrast to much of the ancient world. But, on a first reading, it seems that not only is slavery permitted, it is positively endorsed. Indeed, it is forbidden for Jews to release a Cannanite slave (based on the rabbinic understanding of Leviticus 25:46).
It would have taken a very creative set of eyes, to look at the Torah, and to say, without equivocation, and despite the prohibition on releasing them, that – in actual fact – the Torah’s ultimate goal was the absolute abolition of slavery. But that’s exactly what Rabbi Hirsch believed:
The consideration of certain circumstances is necessary, correctly to understand the fact that the Torah presupposes and allows the possession and purchase of slaves from abroad to a nation itself just released from slavery. No Jew could make any other human being into a slave. He could only acquire by purchase people who, by then universally accepted international law, were already slaves. But this transference into the property of a Jew was the one and only salvation for anybody who, according to the prevailing laws of the nations, was stamped as a slave. The terribly sad experiences of even the last century (Union, Jamaica 1865) teach us how completely unprotected and liable to the most inhuman treatment was the slave who in accordance with the national law was not emancipated, and even when emancipated, wherever he was, looked upon as still belonging to the slave class, or as a freed slave.
According to Rabbi Hirsch, the Torah made an accommodation to the fact that slavery was allowed in the ancient world, and without allowing Jews to create new slaves, it allowed them to buy people already branded as slaves, at least to improve their situation. In order to recognize how this would truly count as an improvement, we could note, with Rabbi Shmuel Rubenstein, the author of Kadmoniot Hahalacha, how
Herodotus writes that the Scythians used to blind their captive slaves so that they would work in producing butter. And there were several other such purposes for which slaves would be struck with blindness, TO THE POINT WHERE PUTTING OUT EYES BECAME A SYMBOL OF SLAVERY [in the ancient world].
By contrast, in Jewish law, a slave has to be freed (even if there is a general prohibition against freeing them) if a master damages one of their eyes. Rabbi Rubenstein goes on to document how, according to Seneca, a slave would have his hands cut off for stealing, but in Jewish law, a slave has to be freed if the master damages one of his limbs.
Okay, but still! Slavery was brutal and disgusting, and the Torah allowed it. We may have been better slave masters than our neighbors at the time, but why were we allowed to have them at all? The Torah even forbade us, in normal circumstances, from freeing them. So, how can we pretend that actually, the Torah was against it?
The late and great Rabbi Nahum Rabinovitch, argued that the Torah was actually faced with a dilemma. On the one hand, “it was forbidden for his master to sell [a Canaanite slave] to a gentile” because the laws that governed the treatment of slaves, among the Gentiles in the ancient world, as we have seen, were brutal in the extreme. It was also forbidden to “restore him to full gentile status,” because, by being a slave of a Jew, a slave partakes in all sorts of religious rituals that bring him close to God. Accordingly, it was decided that a Canaanite slave, if ever freed, would be considered, automatically, a Jew. But would there be any guarantee that, upon freeing him, he would actually embrace the religion, or would he revert to the idolatry, which, at that time, in that cultural context, included child sacrifice? Moreover, in such a delicate cultural context, in which human sacrificing idolatry was rife, and the Jewish people was just starting out, “A legal option to free large numbers of [Canaanite] slaves and make them Jews would expose Jewish society to the danger of being overwhelmed and loosed from its moorings.”
You might not be convinced by this analysis, but it’s important that we understand it. According to Rabbi Rabinovitch:
The halakhic acceptance of the institution of slavery was paradoxical, for despite the principled opposition to slavery, it was impossible legally to free a slave, for every act of emancipation entailed a degree of compulsion, and how could one become a Jew through compulsion?
The Torah was revealed in an imperfect world in which slavery was a reality, and its instant abolition was not a feasible option. If anything, the Torah was preparing the world for a time in which there would no longer be any slavery at all. As an Orthodox Jew, I have to believe that something like this is right. I can’t believe that the Torah was fine with human slavery. The Torah has an eternal underlying ethic, but its outward form changes over time in many different ways, and sometimes, that’s because the outward form of the Torah was itself an accommodation with a brutal ancient world. The changing face of the Torah is something Shapiro seems to ignore.
The captive woman of Deuteronomy 21 is probably another good example of this phenomenon. The Torah allowed soldiers at war certain sexual rights over a woman taken captive. The Talmud explicitly records that this was the Torah making some sort of accommodation with the evil inclination of human beings at war. But it’s hard to imagine any mainstream or responsible halakhic authority arguing today that this Biblical right is still in force. Thankfully, we don’t live in the ancient world. Today a military can and should be expected to enforce better discipline than we saw in ancient times. This is exactly how, for example, Rabbi Eliezer Melammed rules (Penini Halakha, Sefer Ha’am ve’Ha’aretz 4:18).
So, I know that, right now, as things are currently constituted, it looks settled that Jewish law takes a negative stance on homosexual intercourse, and homosexual marriage. But it should be noted that without the moral insight and the bravery of the abolitionists, we’d still be looking to the Torah today and seeing a document that endorses and enshrines the institution of slavery. I’m not saying that the two issues are the same, and I’m not in the business of making halakhic rulings. I leave that to others. My point is, rather, twofold: Firstly, that where there’s no ethical argument to be made against something, even if that thing is forbidden by the Torah, moral outrage would seem to be an inappropriate response; and Secondly, the fact that God’s word is immutable doesn’t automatically entail that the form of Jewish law will always look exactly as it always looked, nor does it mean that we should be immune to learning ethical insights from the wider world, before discovering that their essence was always waiting in the subtext of the Torah itself.
But I’ve allowed myself to get distracted by details. The main point that needs to be made, is this. Yes, there are some very disturbing developments on the political left. In various ways that I can’t go into right now, I would suggest that they’re not unrelated to the rise of new and virulent forms of anti-Semitism on the left. There is a lionization of victimhood, a silencing of critical voices, and an unforgiving culture of shaming anyone who steps out of line, even accidentally, with current mores. We are very quickly being asked, to reassess our entire sexual ethic, but also to reassess the role of gender in society, and the relationship between gender and biological sex; to renegotiate institutions that have been stable for millennia. This can be deeply unsettling and there is good reason to worry about unforeseen consequences of radical and rapid social change. All of this is true, but we also have to worry about similar developments on the right of the political map: a growing disdain for evidence, science, and argument, as right wing populists search for their “alternative facts” and find themselves in the endless rabbit holes of conspiratorial thinking. We find ourselves in the midst of a culture war.
At such times, leadership is certainly called for. But what we definitely don’t need is for leaders who seem to relish in pouring fuel onto the fire. We must stand up for the value of truth, for the importance of free speech, in a context of civil discourse. We must stand up for our right to observe the laws of the Torah as we currently understand them to be. But, at the same time, we should be under no illusion. Whatever the final consensus will be in society in general, and in the codes of Jewish law in generations to come, the Torah is concerned first and foremost with the ways of peace. “Her ways are ways of pleasantness, and all her paths are peaceful.”
In a time of cultural unrest, the job of Torah leadership isn’t to jump on one bandwagon or the other, but to see what can be done in the name of peace and reconciliation. Whatever our considered opinions may be, how can we articulate them in ways that disarm conflict, and promote civil discourse?
If gender dysphoria is causing people to commit suicide at much higher rates than the general public, then whatever the Torah’s ultimate views might be about gender and sex, and the complicated ethical issues that they raise, it’s clear that the overriding concern should be how to articulate that law in ways that are maximally compassionate and understanding of those people’s plight. And whatever the Torah might have to say about gay marriage, true Torah leadership will have to come from a place of understanding that when two people fall in love, and want to commit the rest of their lives, one to the other, and build a family on the basis of their love and fidelity, there is nothing there that should threaten us or our values. The job of Torah scholars, in a time of cultural warfare is, as it always has been, to increase peace in the world (Tractate Brachot 64a).