Gays, grasshoppers and men of God -- a debate over the spirit of Halacha

My Facebook feed has been flooded over the past week with a series of posts, responses and comments regarding Modern Orthodoxy’s ongoing struggle with its identity and orientation as it seeks to clarify its approach to homosexuality.

The discussion was prompted by a provocative piece in the Jewish Press by American political pundit, Ben Shapiro, who argued that Modern Orthodoxy was losing its moral compass by attempting to accommodate homosexual couples within its communities. An eloquent and heartfelt response by Sam Lebens took a radically different approach, arguing that homosexuality should be viewed as an inexplicable divine decree – like other biblical “abominations” such as consuming insects – whose devotees are not condemned and hounded for immorally corrupting their societies. The debate prompted a number of sidelines and spin-offs – including from former Zoo-Rabbi Natan Slifkin who leapt enthusiastically to the defence of downtrodden insects in a post that took exception to Leben’s seeming suggestion that gorging on grasshoppers was ethically sound (all links in the first comment).

What, you may ask, has any of this got to do with Judaism Reclaimed?

Quite a lot, actually.

A whole two chapters of the book are dedicated to contrasting inexplicable chukkim – divine decrees which are usually unique to Judaism – and apparently widespread “mefursam” moral-based laws which lie at the heart of any civilised society. An important consequence of how a law is categorised, I attempt to show, is the likely rabbinic approach to construing and constraining its details.

When dealing with moral mitzvot such as prohibitions against murder and theft, the Talmud typically emphasises the importance of loyalty to the spirit of the law and is highly critical of proposed loopholes and fictions. In its treatment of inexplicable decrees, by contrast, such schemes are not only tolerated but actively encouraged (“How can the law of the firstborn [animals] be evaded?”; “People may act with cunning with regard to the Second Tithe”). It would seem that the harder it is to fathom the reason for a law, the less one can object that a proposed loophole is in breach of its spirit.

My conclusion notes, however, that some specific cases such as the prohibition against homosexual intercourse defy simple categorisation. For most of human history it would have been widely considered moral and mefursam – a fathomable and widely accepted prohibition. Recent years though have seen a shift in public opinion, which has led to it being considered more in the category of inexplicable divine decrees (chukkim) than mefursamot. Does this mean that while it would formerly have been considered to contain a spirit which would discourage any search for loopholes, it now appears to belong more naturally within the chukkim and contain only the letter of the law? Can the spirit of a mitzva be subject to change?

How are we to be guided in such a case? Do we measure by public opinion at the time of the giving of the Torah (assuming that this can be ascertained)? Do we follow public opinion for the majority of human history and therefore consider the prohibition to be founded on ethical underpinnings even though this is not the prevailing opinion nowadays? Perhaps in order to be categorised as mefursam, a commandment must have been consistently and constantly applied?

Alternatively it might be argued that there is an element of tradition as to what the Torah considers to be general opinion. Is this indicated by the Torah’s use of the term to’eivah to describe the homosexual act? As I examine in a separate chapter, however, the epithet “to’eivah” is used to describe many sins, not all of which are obviously viewed as morally reprehensible.

I conclude the analysis without any firm resolution as to how the Torah’s prohibition against homosexual intercourse should be categorised (although I do strongly endorse a book by Rabbi Chaim Rapoport on the subject, linked in the first comment). As this last week’s ongoing argument underlines, the debate as to a possible “spirit of the law” regarding homosexuality continues to rage in Orthodox circles. Judaism Reclaimed understands that this debate is crucial, and that its conclusion must inform any halachic discussion as to proposed loopholes and leniencies which might lessen the struggles of Orthodox homosexuals.

First posted to Facebook 27 December 2022, here.