Since KeshetJTS seems to have disappeared from the face of the web, leaving most readers of this blog with no access to Rabbi S. Roth's teshuva, I've decided to post a few excerpts. Please bear in mind that, although this post is lengthy, I am ommitting a great deal; the original is 42 pages long.
A few disclaimers:
1. The content of this post is by nature sexually explicit.
2. For technical reasons, I've deleted the Hebrew text and included transliterations where Rabbi Roth neglected to do so. I've also made some changes in format.
3. I've replaced some footnotes with paranthetical citations and deleted others. Some are important, but it didn't make sense to take up so much space.
4. I've omitted the entire section on gays in the rabbinate. It shouldn't be too difficult to figure out what Rabbi Roth's position on the matter is.
Here are the excerpts:
This paper is not addressing the general issue of a halakhic attitude towards homosexual acts, but it is addressing itself to the specific needs of a religious gay person who identifies with the ideology and practices of Conservative Judaism and who wishes to live, learn, practice, and perhaps teach this tradition. There is, therefore, much in this paper that will not be acceptable to a secular gay rights activist. . . .
The term used in our classical sources to denote the major homosexual prohibition of the Torah is mishkav zakhur. This term is now loosely understood as being the equivalent of "homosexuality", but this is quite erroneous. Mishkav zakhur refers to one specific act alone and to no other. The Written Torah specifically prohibits mishkav zakhur twice:
"You shall not copulate with a man as one copulates with a woman: it is an abomination (Lev. 18:22).
"If a man copulates with another male as one copulates with a woman, both of them have acted abominably; they shall be put to death..." (Lev. 20:13).
Rambam (Hilkhot Issurei Bi'ah 1:14) gives the following definition of mishkav zakhur:
"When one male copulates with another male ... from the moment of [anal] penetration ... both are punishable by stoning..."
In modern times as well, this quasi anatomical definition is accepted. . .
If the Torah is prohibiting the specific act of anal penetration of one male by another; it follows that the two verses of the Torah are not a blanket prohibition of homosexuality. The gay male who scrupulously avoids anal penetration cannot be guilty of mishkav zakhur, and the opprobrium expressed in these verses cannot apply to him. . .
As we have seen, the act that the Torah prohibits is anal penetration of one male by another. For obvious anatomical reasons this cannot apply to females. This is the reason why there is no equivalent female homosexual act which would earn the participants either judicial death or excision. Nevertheless, homosexual acts between women were also forbidden by the sages. Their prohibition is based on a rabbinic interpretation of a verse in the Torah:
"You shall not copy the practices of the land of Egypt where you dwelt, or of the land of Canaan to which I am taking you; nor shall you follow their laws" (Lev. 18:3).
Rambam (Hilkhot Issurei Bi'ah 21:8) codifies as follows:
"For women to cuddle each other is forbidden as this is one of the 'practices of the land of Egypt'. However, even though the act is prohibited it is not punishable ... because there is no specific Torah prohibition and sexual intercourse is not possible. This is why [such women] are not prohibited to ... their husbands because of prostitution ... for there is here no such prostitution... A husband should prevent his wife from such practices by forbidding women known [to do such things] access to her and by [forbidding] her to go out to them."
Since it is not one of the arayot nor are there any judicial or social consequences there is no need for us to investigate halakhic implications of female homosexuality at this point, since they can be subsumed in the discussion of male homosexual practices other than mishkav zakhur and masturbation. However, we should note that it is significant that the prohibition of the sages seems to assume that the women involved in these activities are married (to men). . .
The Shulan Arukh states (Even ha-Ezer 1:1.):
"A man must marry a woman in order to procreate..."
Does this requirement, sequentially the first of the 613 mitzvot of the Torah, apply to gay males? . . .It would be cruel in the extreme to impose marriage on a man for whom any sexual encounter with a woman would be totally distasteful and probably a physical impossibility because of the constraints of his psychological and emotional complexion. It would be cruel not only to the man but also to the woman he marries. . . When a person's actions are influenced by a power beyond his control this is called "constraint", ones, by our sources. We shall return to the halakhic implications of 'constraint' later on in this paper. . .
Masturbation is termed in our classical sources hashatat zera. This means that the effect of the action is to expel semen for a purpose other than procreation and into a receptacle other than a womb. Masturbation is prohibited by the Palestinian Amora Rabbi Yoanan in the Talmud (Niddah 13a) and he bases himself on the death of Onan as described in the Torah (Gen. 38:10). The Shulan Arukh (Even ha-Ezer 23:1-2) . . . prohibits this activity in hyperbolic language. . .
If, in addition to mishkav zakhur, this activity also is denied the gay man he will be left with almost no physical means for the relief of sexual tension and for sexual expression, which will have possibly dire consequences, ranging between mental anguish, emotional instability and suicide [this claim is supported in a footnote]. . .
Despite the uncompromising language of the Shulan Arukh as quoted above there are halakhic possibilities that will permit a gay man sexual expression through masturbation. The most direct possibility is to follow the line of thought of Rabbenu Tam (Yevamot 12b s.v. Shalosh) that anyone who is exempt from the mitzvah of procreation is not bound by the prohibition against masturbation. Since we have accepted that gay men are exempt from the mitzvah of procreative marriage it would follow that they are not bound by the prohibition against masturbation. However, no other posek has taken this line of thought, and while Rabbenu Tam is certainly great enough to rely on as it were, it would be prudent also to search for another avenue of approach as "back up". In his commentary on that hyperbolic statement of the Shulan Arukh, Bet Shemu'el points out that the hyperbole in the statement is misleading. Sefer Hasidim (Siman 176) of Rabbi Yehudah he-Hasid had already pointed out that there were circumstances where not only was masturbation permitted but should be seen as preferable.
"One person asked whether someone whose sexual drive was getting the better of him and he was afraid that he might sin by copulating with a married woman or his menstruous wife or any other of the arayot that are forbidden to him whether he could masturbate so that he might not sin. The response was that in such circumstances he should masturbate, for if it is a married woman it is preferable that he masturbate rather than sin with the woman..."
In his commentary Hokhmat Shelomoh on that same paragraph in the Shulan Arukh, Rabbi Shelomoh Luria goes even further, and suggests that it might even be a mitzvah to perform a lesser sin in order to avoid a greater sin. . . Therefore, according to the thinking of Rabbi Yehudah he-Hasid, masturbation as an alternative to mishkav zakhur is to be condoned; and according to Rabbi Shelomoh Luria if the masturbation succeeds in preventing the sin of mishkav zakhur then it might even be regarded as a mitzvah! . . .
In spite of the above statements it is highly unlikely that any of the authorities mentioned intended the heter to be anything more than occasional, in time of acute temptation. Is it possible to see this heter as ongoing in homosexual circumstances? I believe that we can indeed say so, because it is but natural that a religious gay man will seek out a partner and a relationship. Under those circumstances the temptation of mishkav zakhur is a constant one, and the heter of masturbation is a constant need. The gay man's emotional health depends on it, and we should bear in mind that if both masturbation and anal penetration are denied him the religious gay man will in all probability forsake religious observance entirely. The wise posek too will "calculate the loss of a mitzvah against its reward and the reward of a sin against its loss". . .
The Torah stipulates:
"None of you shall come near anyone of his own flesh to uncover nakedness" (Lev. 18:6).
Rambam, basing himself on a very appropriate midrash in the Sifra (Aarei 13), states (Sefer ha-Mitzvot, Lo Ta'aseh 353) that this is a Torah command that requires everyone to maintain a complete physical distance from any possibility of contact with arayot. Thus Torah law would strictly forbid hugging, kissing and fondling someone such as a sister or aunt. (Indeed, a special exception had to be made to permit a man to have any kind of physical contact with his own mother!) This requirement does not seem to have been strictly enforced even in talmudic times. In the Gemara (Shabbat 13a) we read that one trunt Amora, Ulla, when returning from the Bet Midrash would kiss his sisters on their breasts! This is emended by the Gemara to "on their hands", but according to the law as stated by Rambam this would make no difference, since either limb is forbidden him! In his animadversions on Sefer ha-Mitzvot, after analyzing several sources, Ramban claims that Rambam is wrong, and that the prohibition he describes is only rabbinic, mi-de-rabbanan, and not mi-de-'orayta. . .
Even if Rambam is correct that this is prohibited by force of Torah law this would still mean that the gay person, acting under the constraint of his nature, would not be held culpable for not observing this commandment. If Ramban is correct that it is only mi-de-rabbanan then it is even easier to make this claim. We have already seen that under the circumstances to which we are relating even masturbation would be permitted as an alternative to mishkav zakhur. From there it would be a short step to apply the logic of a kind of reversed kal va-homer: if masturbation is permitted to prevent mishkav zakhur could not keruv basar (physical contact) be permitted for the same reason? . . .
We now approach the issues that are involved when two gay people do to each other what we have already seen above would be condoned when practiced by an individual as a "replacement activity". The basic problem here is whether inviting someone to participate in such acts constitutes "aiding and abetting," or "putting a stumbling block before the blind." Is it possible for a religiously motivated person to invite someone else to participate in an activity that is still technically sinful (even if condoned)? The classical place where this is discussed is in the Gemara (Avodah Zarah 6a-b), where the question is posed whether it is permitted to pass wine to a nazir - a person who had taken upon himself for a specific period of time the stringencies of not partaking of alcohol or cutting his hair. If the nazir drinks the wine he has committed a sin (by breaking his religious oath of abstinence). By passing the wine to him or selling it to him (even at his request) am I "aiding and abetting" him in a sinful act? The answer of the Gemara there is clear: you would not be aiding or encouraging him in his wrongdoing if he were going to do it any way. . .
What practical conclusions can we draw from the halakhic conclusions offered in Part 1? It would be very easy indeed to create a halakhic case for blanket prohibition of all homosexual activity. It would also be very cruel. Once Conservative rabbis are convinced that homosexuals are not responsible for their orientation, cannot control it, cannot ignore it and that it is not a pathological condition we should realise that we have a duty to "pull up the halakhic floorboards" to find a heter. We have done this in regard to kohen v'gerusha v'giyoret; we have also done this in regard of the aguna; we have done this too in regard to mamzer u'mamzeret; we have done this in regard to the halakhic status and role of women in general. We can do no less for the sincerely religious gay person than we have done for the others. Not to do so would be an act of halakhic cowardice. . .
[I]t is to the benefit of all concerned that we create a framework that will give ritual effect to the creation of same-sex couples and that this framework would not delegitimize the traditional heterosexual family. There are three main benefits: a reduction in the danger of AIDS and other life-threatening sexually transmitted diseases, a decrease in the incidence of promiscuity, and the ritualization of the relationship within an halakhic framework. In this regard there are two issues that must be scrupulously avoided. Firstly, under no circumstances can the creation of this bond of affection be considered to be kiddushin. . . Secondly, the financial rights of the woman within the marriage bond are secured by the Ketubbah, the marriage deed. This is a document in which witnesses testify to the fact that the husband has made financial provisions for his wife, provisions which, in theory, are to be actualized in the event of divorce or his dying before she does. Kiddushin between two free males or two free females is technically impossible. Nevertheless, it should not be too difficult to find aesthetic alternatives to these items which would be halakhically acceptable. In an addendum to this paper I provide a suggested ceremony, and I have added a few explanatory notes to that text. And it is entirely appropriate that such an effort be made. It is not only the practical issue of discouraging promiscuity because of STD's. Gays and lesbians feel the need for establishing a permanent loving relationship no less than straights. The paternal and maternal instinct is no less strong in gays and lesbians than it is in their heterosexual counterparts. Religious gays and lesbians want to celebrate and commemorate their life-cycle joys and sorrows within the framework of the religious kehillah just as straight people do. We should make the effort to find appropriate halakhic and communal avenues to facilitate these needs. . .
One objection that could be raised to the suggested arrangement for a commitment ceremony could be that the legitimacy of the bond is based in the halakhic presumption that the male couple will never engage in mishkav zakhur. . . This objection is a red herring. There is, in fact, no halakhic difference between the sin of mishkav zakhur and the sin of be'ilat niddah, copulating with a woman who has not bathed in a ritual bath after her last menstruation: both are hayyavei karet. It is commonplace that the overwhelming majority of Conservative married women do not visit the mikveh regularly (or at all!). Based on statistical probabilities, in the case of every marriage the presumption should be that the woman has not visited and will not visit the mikveh. Yet this fact does not deter even one Conservative rabbi from performing huppah-kiddushin for any such couple. We do not pry into what happens in the couple's bedroom after their marriage; the same should apply to a gay couple. . .
In his responsum of a decade ago Rabbi Elliot N. Dorff wrote: "Taken together, these data are sufficient for me to affirm confidently that we should no longer see homosexuality as a moral abomination. The tradition, in saying that it was, clearly assumed that sexual attraction to, and sexual intercourse with, people of the same gender were totally voluntary. We certainly know enough by now to assert that that is a factual error." Rabbi Shmuley Boteach has written:* "Religious people should finally get over their all-too-apparent homophobia and reverse the discriminatory policy which says that homosexuality is an aberration marked by God for special censure. Like heterosexual men and women, gays are God's children, capable of bringing light and love to a planet whose darkness is caused not only by sin but also misguided judgmentalism." Amen.
*In an article entitled "Dr. Laura Misguided On Homosexuality", June 2, 2000 / 28 Iyyar 5760.