Judaism and the Gays: Part 1 - Dealing with Mishcav Zachar

Rabbi Steve Greenberg - An Openly Gay Orthodox Rabbi

"The verse (in Leviticus) prohibits the kind of sex between men that is designed to affect the power and mastery of the penetrator. Sex for the conquest, for shoring up the ego, for self-aggrandizement, or worse, for the perverse pleasure of demeaning another man is prohibited."

DEFINE MISHKAVEI:

The only other time in Tanach where the construct "mishkavei [something]" appears is in the story of Reuven and Bilha. According to the pshat of the text, Reuven rapes Bilha in an attempt to assert his dominance over his father and to take control as the head of the family. His act is called "mishkavei avicha." Similarly, it seems that here the phrase "mishkavei isha" refers to violent sex whose express purpose is to increase the power of one of the partners. (There are those who say that Reuven did not go through with the act, but rather made it appear that he did; in any case, there is at the very least what appears to be sex whose only function is to increase the power of the active partner.) This is consistent with the Gemara in Kiddushin 22b that says anal sex is abnormal because there is only benefit for the man (and that creates a power dynamic).

Additionally, "mishkavei avicha" is usually translated as your father's bed which I believe is a misinterpretation based on other uses of "mishavei" in tanach. It should be interpreted as the lyings of your father as in when you mounted a woman who sleeps with your father. If we use this reading for Reuven we should be consistent and use it in the case of "mishkavei isha." "Ve'et zachar lo tishcav" - and a man should not lie, "mishcavei isha" - with a man who lies with women (heterosexuals) "toevah hi" - it is an abhorrence. Basically, we are saying that it is an abhorrence for gay men to sleep with heterosexual men. This also fits perfectly with the nature of the word "mishcavei" that is speaking about lying in the "atypical manner" and denotes rape, violence, and abuse of power that we get from the story of Reuven.

DEFINING "TISHKAV" AND THE PURPOSE OF "ISHA":

“The lyings of a woman” is hard to decipher because no other context does it appear in the Torah. Two related terms, however, do appear. The first, "mishkavei avicha" was analyzed above. The second, "mishkav zachar" (the lying of a male) is what a woman experiences in intercourse (penetrative). So, we can deduce that "mishkavei isha" here is talking about penetrative sex. (Rashi's commentary is "like makeup into a tube.")

But shouldn't "lo tishkav" (you shall not lie) be the phrase that we use to prove we are talking about penetrative sex because it's modifying the action of the man? The phrase "tishkav" is relatively unambiguous especially because it has the same lashon as "mishkav zachar" that speaks about penetrative sex with a woman. If "lo tishkav" is conveying that we are speaking about penetration then what is the purpose of "mishkavei isha"?

To understand the purpose of the use of "isha" we must understand the context of power dynamics in society. Women throughout history have always had less societal power, broadly speaking, than men. As a result, all heterosexual relations necessarily included a power difference. (According to many historians, the Greeks and Romans viewed sex as legitimate only when it involved a power difference - thus, land-owning men could penetrate slaves, boys, and women, but not vice versa). The inclusion of the word "woman" in the pasuk may be referring specifically to this power dynamic. It seems reasonable to conclude that "mishkavei isha" is sex with some sort of power imbalance, possibly even sex with the express intent of increasing the power of the penetrator. This also works perfectly with our interpretation of "mishkavei" as a violent term as we learned from the story of Reuven. The problem here is not homophobia but actually misogyny; you cannot penetrate another man because it would be lowering him to the status of a woman which is a negative thing societally. The prohibition can, in fact, be about violence, rape, and abuse of power if we understand the meaning behind the use of "mishkavei" and "isha."

This leads to questions about who is the issur on? The active (penetrating) partner or both of the men having sex. There is a debate about whose punishment can be learned from this pasuk. Rabbi Yishmael states that the active partner is addressed and that the punishment for the passive partner is learned from the prohibition against kadeshim, Temple prostitutes. Rabbi Akiva says that the unpunctuated word "תשכב" should be read as "tishkav," actively penetrate, and "tishakhev," be penetrated. Sanhedrin seems to imply that the active partner may have two punishments, but all agree that both partners are punished.

If homosexuality were permitted then men would leave their wives. There is a really easy solution to this... don't force gay men to marry women and it's not a problem.

In order to consider this a compelling reason, you must state that the differences between men and women are important and in fact necessary, to the extent that they must be enforced. Interestingly, the use of toevah in Devarim כ״ז when prohibiting beged isha and beged ish actually would support this reason. Yet, I personally do not find this a compelling reason, and it deals more with social norms than with strict halacha; as such, I am not going to talk about it in depth.

If the intended purpose of sex is reproduction, then non-reproductive sex might be seen as a problematic abuse of sexual pleasure.
Rabbi Yehudah HaHasid offers this interpretation: “Why did the Torah prohibit sexual intercourse between males or between humans and animals?... in order that men marry a woman and fulfill the command to be fruitful and multiply...”

If you would like to say that pru irvu were the rationale behind the issur of mishkav zachar because it is a shev vea'al ta'ase then how do you deal with contraception and the fact that infertile heterosexuals are still allowed to have marital relations? Additionally, it's strange because mishkav zachar would just be a geder for the mitzvat aseh of pru irvu but we don't give the death penalty (which is the punishment for mishkav zachar) for actively violating a mitzvat aseh (shev ve'al taase).

Perhaps the problem is not with abusing sexual pleasure/not using sex for reproduction but with a mitzvat lo taase related to pru irvu - hotzaat zera levatalah (wasting seed).

-Info from Wrestling With God and Man

If you would like to say that pru irvu were the rationale behind the issur of mishkav zachar because it is a shev vea'al ta'ase then how do you deal with contraception and the fact that infertile heterosexuals are still allowed to have marital relations (sefer hachinuch says that a man cannot marry someone infertile but that is not halacha lema'ase)?

Perhaps the problem is not with abusing sexual pleasure but with wasting seed - hotzaat zera levatalah - which is not a problem if you are not chayav in pru irvu.

As seen in the case of Ben Azzai, reproduction is not a mitzva that one can accomplish without passion. He has no ideological stance against the primary value of heterosexual family, but since his heart works in another way, it is best for him to nourish the world in another way. Reproduction is a relational duty - without that context, the mitzva cannot be fulfilled.

Rabbi Joseph Engel: if cannot reproduce under duress they are exempt from procreation and find another way to contribute to society = “settle the earth”
Rabbenu Tam: wasting seed applies only to people who are commanded in procreation (Tosofat Yevamot 12b, shalosh nashim)

​​​​​​​“The rationale of reproduction is a significant challenge to non-reproducing individuals and couples to find alternative ways to care for and sustain the world. However, it does not justify the forcing of homosexuals into heterosexual marriage, nor does it ground the rejection of same-sex partnerships for gay people. Indeed, the policy that would most sensibly emerge from the value of reproduction and family making would be one that supports and encourages homosexuals to fulfill in whatever ways possible the duty to ‘settle the world.’” - Rabbi Greenberg

Were men and women not top and bottom intercourse would not involve domination. M/m anal intercourse only considered a disgrace in a society where women are inferior because otherwise, it would not be abhorrent for a man to make himself into the status of a woman.

-Info From Wrestling With God and Man

"Homosexuality is no different from any other anti-social or anti-halakhic act, where it is legitimate to distinguish between the objective act itself, including its social and moral consequences, and the mentality and inner development of the person who perpetuates the act . . . To use halakhic terminology, the objective crime remains a ma'aseh avayrah (a forbidden act) whereas the person who transgresses is considered innocent on the grounds of ["oh-ness"] (force beyond one's control)." - Rabbi Norman Lamm, "Judaism and the Modern attitude toward Homosexuality," Encyclopedia Judaica Yearbook, 1974.

In a 1974 article, Rabbi Dr Norman Lamm, the former president of Yeshiva University, suggested that we apply the principle of oness rahmana patrei, that the Merciful One exempts a person from the impossible. This talmudic principle was inspired by the case in Deuteronomy (22:25-27) of the raped woman who is not held accountable for adultery, and was applied to cases in which enemies of the Jews would force them to violate halachot under threat of death (Talmud, Avodah Zarah 54a).
The application of this principle to homosexuals was bold. Over the years, it has found a number of Orthodox rabbinic defenders such as Rabbis Steven Greenberg (himself an Orthodox Jewish homosexual), Nathan Lopez Cardozo, Benny Lau and Shlomo Riskin.
A number of other rabbis, striving to be lenient and understanding while remaining true to halachah, have rejected this viewpoint. Rabbi Chaim Rapoport of England discusses this possibility sympathetically, but prefers an alternative mechanism (tinok shenishba) to arrive at a similar goal. Beit Hillel, too, explores different avenues in its response.
The problems with the oness suggestion are twofold. First, how can voluntary engagement in intimate union be defined as “forced”? It seems condescending to say that homosexuals have “no choice” but to act on their impulses. Certainly, we don’t say this about heterosexual adulterers, for instance. Second, this application veers sharply from the standard uses in the Talmud, ie, physical force or threat of violence.
In my 2012 Morethodoxy post, “Homosexuals in the Orthodox Community,” I argued in favor of the oness approach, noting a precedent that could resolve both issues. The Talmud (Gittin 38a-b) discusses a case of a female non-Jewish slave (shifcha) who was owned by two Jewish masters, and freed by only one, making her a “half- shifcha, half -freewoman”.
According to halachah, non-Jewish slaves become Jewish on being freed, bringing about the following problem: as a shifcha, she is forbidden to marry a Jew and as a Jew she is forbidden to marry a non-Jew, even a fellow-slave. In short, she is forbidden to be intimate with anybody at all. The woman became promiscuous and the rabbis forced the second owner to free her.
In his responsa Kol Mevasser (1:25), Rabbi Meshullam Roth (1875-1963) writes that this woman’s lack of a permissible sexual outlet makes her “as if coerced” (anussah) to sin with men. This, he argues, is why she must be freed. The point is not that she cannot control herself in any given situation or that it is in fact impossible for her to be celibate, but rather, the lack of any permissible means whatsoever, present or future, substantially weakens her psychological capacity to avoid sinning. The woman turned to promiscuous sex since all sex was equally forbidden and no halachically or socially acceptable method was available for her to create a stable marital union.
The application of Rabbi Roth’s reading of the talmudic passage to the case of homosexuals is clear. The weight of knowing that no permissible outlet exists is akin to coercion (oness). Moreover, as happened with the half-shifcha, offering no socially acceptable status to monogamous homosexual couples invites promiscuity.
In modern times, we understand that homosexual attraction is not a lifestyle choice but a hardwired fact; whether the cause is genetic, hormonal, psychological, or some combination thereof is immaterial. Since we cannot “free” homosexuals from same-sex attraction, despite the false and often pernicious claims of “conversion therapy” advocates, our best course is treat Orthodox Jewish homosexuals as anussim and welcome them into our communities without judgment, and with the same social and religious expectations we have of other members.
In addition to contributing to their psychological well-being, knowing that they can become fully integrated into Orthodox synagogues may help stabilise Orthodox homosexual families, keeping the couple and their children in the fold, and contributing to the strength of klal Yisrael. Such a shift in attitude is in keeping with the Torah’s mission as a “living Torah” and “a tree of life for them that hold fast to it”.

Rabbi Farber is editor of TheTorah.com

https://www.thejc.com/judaism/features/why-orthodox-synagogues-should-welcome-gay-couples-1.435511

Kovetz Teshuvot Even Haezer 184

R. Yosef Shalom Elyashiv (April 1910 - July 18, 2012)

On the clarification of the words of the Rambam in the law of coming close to the Arayot and the obligation with Androgynous

Although the issue is simple that the words of the Minchat Chinuch that up until here he did not write that the prohibition and obligation of lashes on closeness [of flesh] is applicable rather just specifically intercourse with a male, however sex through body parts with a male the prohibition of coming close is not applicable - for behold according to the view of Rambam in the category of prohibited closeness is also hugging and kissing and this prohibition is not applicable to a man and a man.

And these are the words of the Rambam in Sefer Hamitzvot mitzva 353 he warns about coming close to one of these arayot and even without intercourse like hugging and kissing, and this[prohibition of coming close] they [the Sages] said in a warning "Every man shall not come close to any of his close relatives, to uncover [their] nakedness." (Leviticus 18:19) It is like He said, "they should not come close to any closeness that will lead to uncovering nakedness." And the language of the Sifra "they should not come close to uncovering nakedness" - I have [established] only not to uncover, from where [can I derive] that he should not come close? And to a man during the impurity of separation, you shall not come near to uncover her nakedness. Scripture teaches "And to a woman during the impurity of her separation, you shall not come close." (Leviticus 18:19) I have [established that this applies] only to a niddah etc. Scripture teaches, "They should not come close to uncover."

Meaning that the prohibition is with hugging and kissing because these are the types of things which lead to intercourse and [this prohibition] is not applicable to a man and a man. And the Minchat Chinuch only innovation is the one who has intercourse with a man is obligated in lashes for coming close to arayot. Yet we have not heard if sex with a male through body parts [is included in the prohibition] - even though a male is also written in parshat arayot, "and a male you shall not lie" etc. and specifically an androgynous the Torah expanded that one receives stoning like a male.