One of the reasons I've been putting off the follow-up to last Wednesday's post is that a proper discussion of halakhic innovation would require actual, serious research. Instead of going the route of academic integrity (this is, after all, a blog), I've decided to sketch out my ideas without citations and without all the relevant examples. I hope that some of you can help me fill in the missing information over the next few days.
Okay, here goes:
I have an unfortunate tendency to express misgivings about my opinions before fully articulating them to begin with. Change and "manipulation" have been integral aspects of the halakhic process from the start. A number of aggadot reveal that the Rabbis understood their role to be innovative, not simply transmission or recovery of Sinaitic Oral Law. This does not mean, however, that there is no risk involved in innovation. Many proponents of halakhic change strike me as far too sanguine. At some point, one is faced with fundamental questions: Is there anything that cannot be changed? What is it that makes Judaism Judaism?
I'm going to set these abstract questions aside for a moment and focus on Rabbi Roth's teshuva. Two analogous Talmudic cases come to mind. One is the case of the ben sorer u'more, the rebellious son whose parents sentence him to stoning. The other is the case of the Hebrew slave, whose treatment is regulated by numerous biblical and rabbinic laws. In neither case do the rabbis of the Talmud eliminate the biblical rulings. What they do is introduce so many limitations on their application that they become completely unrealistic. The case of the rebellious son becomes so limited that the Rabbis ultimately state that such a case never occurred and never will. In the case of the Hebrew slave, they assert that "one who acquires a slave acquires for himself a master." A traditionalist might claim that the Rabbis were simply interpreting the text according to Divinely sanctioned methods. Their conclusions therefore reveal its true meaning. A more objective observer, however, would likely conclude that the Rabbis' interpretations were motivated by an internal sense of justice.
Similarly, Rabbi Roth does not eliminate the prohibition of homosexual intercourse. Instead, he limits it to anal intercourse between men, rendering other types of homosexual relationships permissible. There is support for this position in the halakhic sources. Rabbi Roth is "manipulative" only in that he chooses to favor certain sources over others.
But this is merely a justification based on precedent. A philosophical problem remains. Changing the law out of a sense of justice suggests that the Written Torah is morally deficient. Did the Rabbis believe this? Not likely. Frankly, I don't know how they dealt with these issues on an abstract level, and I don't see much point in speculating on the matter. Instead, I'd like to mention a few untraditional approaches taken by contemporary Jews.
Conservative, Reconstructionist, and Reform leaders, as well as a handful of people who call themselves "Orthodox," have come to accept the basic tenets of modern biblical criticism. This does not entail rejection of the Torah's Divine character, but it does call the nature of the Torah's Godliness into question. Some, believing that God is intimately involved in all human affairs, assert that the redacted Torah is no less complete and authoritative than it would have been had it fallen from heaven. Others view the creation of the Torah as one stage in a Divinely guided process, leaving room for improvement at later stages. More liberal thinkers assert that the Torah is simply one important manifestation of the human quest for holiness.
These are gross oversimplifications, but the general idea should be clear. I don't know exactly how Rabbi Roth understands revelation, but his approach to halakha is in keeping with the idea that the Torah is an unfinished human work. Ideally, the halakhic system should provide a framework for reinterpreting the old in light of the new.
If the Torah is viewed as the direct articulation of God's will for all time, our changed understanding of sexual orientation is irrelevant. If, however, it is viewed as the product of human beings in different contexts (albeit with some sort of divine influence), modern ideas and realities become significant. Until very recently, sex between men necessarily involved deviation from the norm of family life. Today, we recognize that certain people are not constitutionally suited for heterosexual marriage, but that those people can still form families. A homosexual relationship that doesn't involve abandonment of family life is indeed a new phenomenon.