|From NISHMA UPDATE June 1993
Inquiry with Rabbi Benjamin Hecht
and Halachic Decision Making
This year's March for Israel Parade in New York City created a controversy of immense significance. The gay synagogue in New York wished to participate in the parade as a unit. The major Orthodox organizations felt that they could not march if the gay synagogue was allowed to participate. The matter concluded with the barring of the gay synagogue from the parade.
The episode raised many halachic issues that are worthy of investigation. First and foremost must be the recognition that it was a halachic issue. There were some in the Orthodox community who chose to explain the objections of Orthodoxy by referring to ethical and moral arguments against homosexuality. This was in turn met with attacks of homophobia. Orthodoxy was portrayed as nothing more than dogmatic fundamentalism. The real issue for Orthodoxy however, was halachic rather than moral.
In approaching a Torah issue simply in terms of ethics, the implication is that the ethic arises first and is then followed by a decision of action. An action, therefore, is perceived to have validity because of its connection to the ethical value from which it originates. If the connection can be broken, then there remains no reason to stand against the action.
Those who argued for Orthodoxy based solely on the argument of ethics brought the genius of Torah down into the moral muck that is the American debate on gay rights. Those who stand against gay rights argue that homosexuality attacks values such as family integrity. Those who defend the gay community do not question this value but argue that the connection is faulty, that the value isnot threatened by tolerance towards the homosexual lifestyle. The argument leads only to a shouting match with two self-righteous protagonists pointing figures at each other. How sad it is to see Torah brought to this level.
The real starting point of a halachic decision, however, begins with an action directive. We may ask why and perhaps are even commanded to search for the value reasons behind the law (see my NISHMA Study Materials on Kabbalat HaTorah), but it is the halachic statement that is our starting point. Homosexuality is prohibited simply because the Torah states that it is forbidden.
As such, Orthodoxy had difficulties marching with the gay synagogue since it would thereby be giving tacit approval to a violation of Halacha. Yet the groups who objected to marching with the gay synagogue were willing to participate with other violators of Halacha. Why did this particular prohibition deserve to be singled out?
Response to formalized non-observance
While most of Orthodoxy has adopted a welcoming attitude in regard to individual non-adherents of Halacha, the response to Jewish groups that formalize this non-observance is a matter of debate, with a majority opinion favouring non-involvement. When the issue of Orthodox rabbinical involvement with the Synagogue Council of America arose in the 1950's, Rabbi Aharon Kottler and Rabbi Moshe Feinstein were among those who opposed any connection. (See Rabbi Louis Bernstein's Challenge and Mission, pp. 141-156.) Association with the Conservative and Reform movements would be understood as a tacit approval of non-halachic doctrine. According to this halachic opinion, marching with organizations that permit the violation of Shabbat or the consumption of non-kosher foods would be comparable to marching with the gay synagogue -- and equally unacceptable. This position is consistent. The issue is the acceptance or non-acceptance of mitzvot.
On the other hand, there are halachic decision makers who permit such association (at least within certain parameters). While Rabbi Bernstein points to Rabbi Joseph B. Soloveitchik's reluctance to make a formal declaration permitting association with non-halachic branches of Judaism,his passive acknowledgement of the fact that the Rabbinical Council of America and the Orthodox Union are now members of the Synagogue Council is clear indication that the side for association also has its argument.
One argument put forth in favour of association is that while there may be dissension within the Jewish community, there must be a unified front presented in relation to the non-Jewish world. (See also, for additional insights, Rabbi Soloveitchik's Community, Tradition 17:2 and Confrontation, Tradition 6:2.) The March for Israel Parade, which had participation from Orthodox groups beyond the Rabbinical Council of America and the Orthodox Union, was a perfect example of this argument in practice. A unified presentation of backing for Israel by the American Jewish community was deemed, within this view, to be reason to allow participation with Conservative and Reform institutions. But what was it about the gay synagogue that challenged this argument?
Unique questions of interaction
One concern expressed, was that the gay synagogue was openly declaring their rejection of the Halacha and, in fact, defining themselves through this very violation. A synagogue which presented itself as the proud place of worship for lovers of cheeseburgers would have initiated a similar response. While the Reform movement may also stand for the non-acceptance of halachic norms and a priories, their rejection of Halacha was not so openly declared in the context of the parade. This would not be so in the case of a gay synagogue. The unified support for Israel, it was argued, could not happen at the expense of an open attack on Halacha.
This argument was further supported by the perception that inclusion of the gay synagogue in the parade would be giving sanction and legitimacy to the gay lifestyle. Reform Judaism is a reality within the Jewish world; Orthodoxy's response does not affect that reality nor give support to the Reform position. The homosexual's position within society, however, is a matter in flux. While Orthodoxy may be sensitive to the dilemma of the individual homosexual -- supporting his or her basic human rights -- it cannot allow itself to be used to promote the acceptance of the gay lifestyle or to defend a right to sexual preference. (As the male homosexual act is also forbidden within the Noachide Code, Rambam, Mishneh Torah, Hilchot Melachim 9:5, this concern may extend to implications within general society, through the halachic category of lifnei iver, assisting in a violation, which also applies to a Jew in connection to a non-Jew and the Noachide Code. See T.B. Avodah Zarah 6b.)
There was also some concern that the very agenda of the parade could be affected by the inclusion of the gay synagogue. There was apprehension that the general media would focus on the inclusion of the gay synagogue and not on solidarity with Israel. The message of solidarity, which was Orthodoxy's reason for participating, it was argued, might be overshadowed or even lost. Unfortunately, the media's focus on the barring of the synagogue may have had the same negative result.
Debate within the Orthodox leadership
As the matter was discussed and debated within the New York Orthodox leadership and community, different responses to these, what I would term, pragmatic difficulties arose. A small minority felt the need for a unified front still outweighed the concerns raised by the possible inclusion of the gay synagogue. They felt that the original arguments for participation still stood.
Those who had always opposed participation with the Reform and Conservative movements, on the other hand, felt their position was now clearly vindicated. The bottom line for them was that those who support Torah cannot connect with those who do not -- it just doesn't work. This matter was perceived to be, by these individuals, proof for their original assertion.
Some, such as Rabbi Norman Lamm, felt that a compromise that would alleviate the Orthodox concerns yet still allow for some type of participation by the gay synagogue, could be attempted. Jewish unity was always weighed against the integrity of the sub-groups. It was this delicate balance that again needed to be found. Such a solution was actually proposed, only to meet with failure.
The dominant opinion of the Orthodox institutions involved in the parade, however, was that the only possible solution was the barring of the gay synagogue. While the general position on Jewish unity still stood, the problems inherent in this case were unique and demanded a strict response. This view may, however, have been further supported by what I would term non-pragmatic concerns -- of a halachic ethical nature.
A defence of Torah through ethical arguments alone can only lead to the travesty I referred to at the beginning of this article, and a presentation of Orthodoxy that is not only incorrect but sadly misleading. This is not to say, however, that there is no role for ethics within the halachic system (see Encounter, section II which includes, among many other fine articles, a re-print of Rabbi Lichtenstein's Does Jewish tradition recognize an ethic independent of Halacha?). The development of an ethical argument within halachic parameters, however, yields a unique creation in the realm of thought and ideas.
The halachic ethic
The energy of a solely ethical argument is the ethic itself. The force of the halachic ethical argument, however, is the Halacha. It is not the value of respect for human life that leads to the prohibition of murder, but rather the halachic legislation of murder that provides support for an argument that human life should be respected. This distinction is important. An ethic derived from Halacha can be analyzed through the language of Halacha and moulded by halachic parameters. In this way, the mind maintains control over the emotions.
Rambam, Shemona Perakim, chapter six, distinguishes between two types of mitzvot. The first category, mitzvot sichliyot, which include such commandments as the prohibition of murder or theft, are also intended to affect our outlook. Not only are we not to commit these acts, but we are also not supposed to want to commit these acts. The moral attributes that are implied by these prohibitions should be developed.
The second category, chukkot, which includes prohibitions such as the eating of meat and milk together and the wearing of shatnez (mixed wool and linen), are, on the other hand, solely intended to focus on the action. A desire for these things is not only permissable, but points to the essence of these rules; the prohibition is not to arise from some ethical aversion, but from the simple recognition that this is the Will of G-d.
This distinction could be expressed in different terms using well-known methodology of cheftza, object, and gavrah, person (although in somewhat of a different context). Chukkot focus totally on the cheftza, the action of transgression. The problem lies solely in the eating of the cheeseburger; the desire to eat a cheeseburger, itself, is not problematic, but is perceived to be a natural part of a person. We arrest that natural desire because G-d has so decreed. Mitzvot sichliyot, however, include in their focus the gavrah, the person who transgresses. In addition to a halachic aversion towards the act, there is also an aversion towards the internal motivator that leads to the act. We do not only see that there is something wrong with murder but that there is something wrong with the murderer (in this regard). In this light, an argument may arise for a distinction in attempts at Jewish unity, based upon the nature of the transgression. Association with those who promote violations of mitzvot sichliyot could be more difficult, as we would be concerned with their personality drives as well. Here, there may be a stronger argument to remain apart.
This could represent a possible inherent argument for the greater reluctance to march in the Israel Day Parade with the gay synagogue than with a Reform movement that, for example, ignores the laws of kashrut. This argument for distinction, however, is not a necessary one as arguments could be presented both for and against. While Rambam presents this theory for distinguishing the mitzvot, it is also Rambam who in Commentary to the Mishneh, Sanhedrin, Introduction to Chelek, lays down as the eighth Principle of Faith the oneness of Torah and the equal kedusha of every letter (and every mitzvah). With regard to the question of participation with non-halachic Jewish groups, should we treat all violations in a similar manner or can we make a distinction, within halachic parameters, between different types of violations?
Homosexuality: chok or mitzvah sichliya?
Even if one argues in favour of applying this distinction, it may not be clear that homosexuality is actually in the first category. Rambam, Shemona Perakim, chapter six, includes arayot, the category of major sexual prohibitions, in category two with shatnez and basar b'chalav (meat and milk). At first glance this would seem to imply that the prohibition of homosexuality is a chok, not a mitzvah sichliya.
In T.B. Yoma 67b, however, where this idea of distinction in mitzvot originates, arayot is included in category one. (See also Moreh Nevuchim 3:49)
It may be that different arayot prohibitions fall into different categories. Ramban, Commentary on the Torah, Vayikra 18:6 and 18:21 seems to make this type of distinction. It would seem that Ramban generally also considers arayot to be in the category of chukkot. Yet in regard to homosexuality, his approach seems to place this specific prohibition in the realm of the mitzvot sichliyot.
Sefer HaChinuch, mitzvot 190 and 209, seems to make a similar distinction. In relating the prohibition of incest between a son and a mother, the Chinuch states various reasons, as described by Rambam and Ramban, for the laws of arayot. These reasons do not reflect intense disgust, yet in describing the reasons for the prohibition of homosexuality, the Chinuch's language is stronger: "... the nature of this filthy business is very repulsive and loathsome in the eyes of every intelligent human being"(translation by Rabbi Charles Wengrov). See also mitzvah 189. While there may be some question as to whether the arayot in general are mitzvot sichliyot or chukkot, it would seem that, as regards the prohibition of homosexuality, there was less debate as to its classification as a mitzvah sichliya. A distinction, therefore, based on the categorization of the mitzvah could have much weight.
The argument, however, is not conclusive. Although the voices of Rishonim are always most powerful, since this is a specific matter of hashkafa and not halacha (although there are halachic ramifications), their authority is not fully binding. See my Torah She'b'aal Peh, Nishma VI. Controversy on whether homosexuality is within the category of mitzvot sichliyot or chukkot, especially given the modern psychological discussion on the subject (see my Homosexuality: Is there a Unique Torah Perspective?, Nishma Update, June 1992), can legitimately exist within the parameters of Torah.
Clarification of the essential dividing line between the mitzvot sichliyot and chukkot may yield further insight. The language of definition implies that the former are mitzvot we understand while the latter are beyond our understanding - the key is the intellect. Yet there is also the dividing line of internal moral reaction. Some mitzvot connect with internal ethical stirrings while others do not.
Moral repulsion / rational arguments
The dividing line between mitzvot sichliyot and chukkot usually involves both factors. Murder repulses us morally and has strong rational arguments in support of its prohibition. Shatnez does not touch us ethically and is beyond our comprehension. This connection, however, is not always existent. Incest, generally considered a chok, brings forth strong feelings of moral repulsion but is not so easily explainable. It seems that while we may generally distinguish the category of mitzvot based on our internal moral reaction, this is not the most precise method of distinction. The actual technical method of distinction seems to be through reason. Yet, as Rambam points out, moral repulsion is also supposed to be a factor.
The distinction of mitzvot sichliyot and chukkot is therefore a complex one. It essentially involves our intellect but also considers moral repulsion. Is this referring to a moral repulsion that follows an intellectual decision or develops subsequent to a halachic statement? The difference between the two categories of mitzvot, if described as such, would be that for certain mitzvot we are suppose to develop ethical feelings of disgust but for others we do not have to (or should not even do so). Ethical feelings are perceived to follow the halachic statement and the person develops these responses in line with the halachic conclusion presented. However, what about our inherent ethical response that reacts from within us prior to a halachic development? Murder is not simply an action for which I am supposed to develop a response of disgust. I am disgusted from within by this act. The distinction in mitzvot is not only relates to the development a mitzvah causes in mankind, but also somehow connects to how humankind reacts to a mitzvah. If this is so, what about the changes society may cause in our ethical reactions? Halacha is absolute but ethical feelings can sway with the times. Can the dividing line between mitzvot sichliyot and chukkot also change?
In the realm of homosexuality we have the further complication that the objective reasons presented in the Torah literature are fully understandable to the heterosexual individual reared within Orthodox concepts of Divine order. Much of the debate may also, as such, rest on whether feelings of "rachmanut", sensitivity, should be extended to individuals who argue that they have a homosexual drive for companionship and love. What, if any, difference in response should we have to this obviously different type of aveira (transgression) situation? Arguments can be made for either greater stringency, greater sensitivity, or similarity in response to any other transgression.
An argument for distinguishing homosexuality from chillul Shabbat based on this analysis could be presented -- yet it demands a thorough investigation of this area within the world of hashkafa. It is further important that this Torah analysis not simply be used to defend pre-determined ethical-only positions. One may also consider alternative definition of the chukkim category. See, for example, Horeb, Section IV.
Education and culpability
Another halachic ethical argument that inherently supports the distinction is based on the concepts of mis-education and culpability. It is a well-accepted concept within Halacha that someone who was not educated properly and therefore adopts incorrect perceptions and behaviour is not culpable. There is a distinction between those who initiate the violation, or the thought process that justifies the violation, and those who were the recipients of this "mis"-education. See, Rambam, Mishneh Torah, Hilchot Mamrim 3:3. This distinction may apply beyond the issue of culpability to include affecting the issue of unity. It is within this latter context that this factor may apply in the case of the parade.
While in regard to culpability there may be no question that the tinok she'nishba, the non-responsible captured infant, label would be generally applicable to the members of the gay synagogue, a distinction in motivating energy may still exist and be of significance. The Reform Jew who violates the Laws of Shabbat believes that s/he is simply in line with his/her system of Judaism, flowing with the values that were presented to him or her. On one hand, the gay synagogue as part of the Reform movement is also simply flowing with the values of that system. Yet, on a different plane, the members of the gay synagogue are fightingpreviously acknowledged mores. They are the initial generation fighting for the open acceptance of this violation. That may constitute a reason for reluctance in association. On the other hand, there may be no ground for distinction because their stand is the natural outgrowth of the taught theology.
There may be other arguments for and against, and you are invited to further the investigation. Practical halachic decisions are excellent learning tools and the decision not to march with the gay synagogue is such a decision. This is perhaps the most important lesson. It was unfortunate that people with non-halachic arguments for Orthodoxy were heard thereby tainting the system of Torah. The method of decision-making used by the actual Torah leadership involved in the parade controversy (on all sides of the issue), however, was the method of Halacha. Our purpose was to present some aspects of the halachic methodology.
 One might wonder why this approach will not lead to the same shouting battle between self-righteous partisans. "Yes, it is true." "No, it is not." The true adherent of Torah could not fall into this trap.
The determination of values is ego-intensive, demanding the analysis of the self. "I" must investigate the matter, evaluate the issue and arrive at the conclusion. Understanding and adoption of the value is a triumph of the will. It is exactly because of this that value positions can lead to the bloating of the ego that is self-righteousness.
The starting point of Torah, though, is a withdrawal of self. The process of Halacha originates in the acceptance of the Will of G-d. While subsequent to our opening declaration of na'aseh, our selves are called upon to soar in the world of Torah study and the investigation of value reasons, nishma, we are always affected by the beginning. The humility in the original subjugation of our self to the Will of G-d must necessarily prevent against self-righteousness and the pointing of fingers in the Torah true individual.
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