Originally posted on Times of Israel

For those who think that Orthodox means static and unresponsive to new understanding, well, think again. In a recent interview (in Hebrew) by a religious news organization, Makor Rishon, Rabbi Shlomo Riskin, an outspoken Orthodox leader and the chief rabbi of Efrat, has shared that he believes homosexuals are not bound by the Levitical law that prohibits same-sex relationships.

Rabbi Riskin’s daring empathy for gay Jews began more than 20 years ago. In a 1993 article in The Jerusalem Post, Rabbi Riskin suggested that the category of “Oness Rahamana patrei” (literally: the Merciful One doesn’t hold accountable those who are under duress) should apply to gay Jews. His understanding of homosexuality as an inborn human reality rather than a lifestyle choice led him then to a daring affirmation. He wrote: “….how can we deny a human being the expression of his physical and psychic being? If there’s a problem with the kettle, blame the manufacturer. Is it not cruel to condemn an individual from doing that which his biological and genetic makeup demand that he do? The traditional Jewish response would be that if indeed the individual is acting out of compulsion, he would not be held culpable for his act.”

The argument from compulsion derives from a talmudic discussion about a person forced by gentiles to violate the law (BT Avodah Zarah 54a). Later authorities concluded that psychological duress functioned similarly. To my knowledge, the first time this argument was used in regard to homosexuality was in a 1974 Jewish Encyclopedia Judaica Yearbook entry by Rabbi Norman Lamm, then the president of Yeshiva University. He offered the possibility that the category of “duress” if reasonably applied to psychological forces, would remove the stigma from those homosexuals who are limited exclusively by their inner lives to same-sex romantic relationships.

What is somewhat new in Rabbi Riskin’s recent interview is the recognition that this halakhic assessment shapes a new set of expectations for the religious gay person that include hope for a life of love, intimacy and companionship, along with full inclusion in a traditional Jewish community. For Rabbi Riskin, these aren’t empty words. In practice, he has personally insured that gay individuals and families can find a home in Efrat, where he is the community rabbi.

Rabbi Riskin has surely been ahead of his time, but Orthodox assessments of homosexuality have been on a liberalizing trajectory in both theory and practice for nearly 50 years. The rabbinic depictions of gay sexual expression have moved from vicious rebellion, to despicable sin, to curable sickness and now….in fits and starts…to ordinary difference.

Practical rabbinic advice followed along a similar path. The counsel that gay Orthodox Jews received for many years was to ignore our feelings. We were told that the sinful desires will go away once we were happily married to a proper spouse of the opposite sex. When rabbis came to realize how dangerous this advice was for the straight spouses married to struggling gay people, they changed their position. In the 80s they turned to reparative therapy to save the day. JONAH (Jews Offering New Alternatives to Homosexuality) promised to provide gay Orthodox Jews “healing” for their “sickness.” In light of abuses and consistent failures to accomplish its stated promises, the organization was sued in 2015 for consumer fraud and the plaintiffs won, shutting down the organization and setting a strong precedent for US courts. Fearing to be enmeshed in the controversial therapy, the Orthodox Union, which had encouraged reparative therapy earlier, publicly rejected it, preparing the ground for a new set of expectations for gay people’s lives and for the Orthodox communities they may wish to belong to.

Despite the inching forward, there is still fear in the Orthodox world that a shift toward acceptance could undermine the entire legal system, weaken trust in the biblical text and its rabbinic interpreters. However, the opposite is much more likely. Rabbi Ari Segal, the head of school at Shalhevet Academy in Los Angeles wrote recently that for his students, the halakhic rejection of gay people is the most difficult challenge to faith that he faces as an educator.

The need for responsible halakhic leadership on this issue won’t be met in an interview, but while Rabbi Riskin has not written a full fledged responsum, his remarks do set the stage for a way to navigate the conflict. In my 2005 book, Wrestling with God and Men, I suggested just this sort of broad categorical use of Oness as a halakhically sound way to address the challenges. The talmudic source that Rabbi Riskin cites in his interview supports this approach well.

At the wedding of Rabbi Judah’s son, a student named Bar Kapparah rises to interject marital humor. He asks a question: Why are same-sex relations between men referred to in Leviticus as toeva, abomination? His answer is a pun on the letters of the word TOEVA –“Toeh attah ba,” you wander because of this. When a man wanders from his wife’s bed to expand his appetite with men, the excess was deemed abominable. Homosexual adventure for straight men is the target of the prohibition in Leviticus.

The relevant moral claim is simple. A verse can limit sexual expression, it can prohibit excess. It cannot realistically extinguish all possibilities of loving fulfillment. Neither the Torah nor the rabbis theorize the existence of large group of people for whom only same-sex love and partnership is possible. Until recently, only one form of human sexuality existed. Once homosexuality is recognized as a second, minority expression of ordinary human love and attachment, then the broad application of the prohibition becomes morally untenable.

Oness is an innovative way to get at this insight from within the tradition. It is fair to note that there are difficulties with the approach. The original use of the principle was individual and ex post facto. An individual having already violated a norm under the force of duress was not held accountable. But we are attempting here to employ it categorically for a group of people in an ongoing fashion to accept what is impossible to avoid. While the move is bold, there are precedents that use the principle of Oness in this expansive way. Those interested in the sources should look at Ketubot 3a, Tosafot Shabbat 4a, V’chi, and Tosafot Sanhedrin 9b, Lirtzono. Rabbi Zev Farber notes in a 2012 article that Rabbi Meshullam Roth (1875-1963) in Kol Mevasser (1:25) determined that persons with no halakhically permissible sexual outlet can, in some circumstances, be considered “coerced” by the human need for intimacy and companionship.

This expansive use of Oness provides a formal frame for marking the different capacities of gay and straight people and justifies a formal exclusion of gay people from the normative scope of the biblical verse. Such a reading is nothing short of redemptive. It replaces the cruel and unrealistic halakhic demand of lifelong celibacy with a livable life trajectory. The core insight of the above legal arguments is simple. The verse in Leviticus cannot fairly be speaking to gay people, consigning hundreds of thousands of people to lives without love, intimacy and companionship. It is this common sense observation that is slowly moving the Orthodox world to a new place.

Rabbi Riskin ventured even further this time articulating support for gay commitment ceremonies. While he affirmed that a kiddushin ceremony was not in order, he saw value in a ceremony that honors a commitment to lifelong partnership. Senior leadership of the Orthodox community have put up active resistance to gay marriage in all its forms, however, some rabbis in the field are feeling conflicted. Many are struggling to navigate the issues more thoughtfully as they discover that their own children, young graduates of yeshiva education, are dancing and singing at their gay friends’ weddings.

We are now at the beginning of an era where Rabbi Riskin’s conviction more than 20 years ago is bearing real fruit. If sexuality is inborn, authored by the Creator, then it requires a halakhic application that takes this into consideration. The halakhic ground here will feel shaky to some, but for many of us in the Orthodox world, the words of Rabbi Eliezer Berkovits, of Skokie Yeshiva, ring today with both urgency and hope.

“Halakha” he writes, “is the wisdom of the application of the written word of the Torah to the life and history of the Jewish people. However, this wisdom and its implementation cannot be contained in any book. No written word can deal in advance with the innumerable situations, changes of circumstances, and new developments that normally occur in the history of men and nations. . . . The divine truth had to be poured into human vessels; it had to be ‘humanized.’ . . . The ‘humanization’ of the word of God requires that in applying Torah to the human condition, one takes into consideration human nature and its needs, human character and its problems, the human condition in its forever-fluctuating dimension…”

I, along with Eshel’s membership, our parents, siblings, friends and our thousands of allies applaud Rabbi Riskin and the growing number of Orthodox rabbis all over the world who share his convictions. While I expect that there will be resistance, I am confident that this is a sanctification of God’s name, an affirmation of the living Torah of our people and a demonstration of how Halakhah actually works.