Nechama Goldman Barash Contemporary Halacha at Matan 2016 Kavod Haberiyot: Can we stretch the boundaries?

Transcription

1 Nechama Goldman Barash Contemporary Halacha at Matan 2016 Kavod Haberiyot: Can we stretch the boundaries? Mah Enosh : Reflections on the Relation between Judaism and Humanism: Rav Aharon Lichtenstein Kevod Haberiyot Unfortunately, basic halakhic sources here provide only limited guidance. At most, they supply us with raw material but not with definitions proper. As regards kevod ha-beriyyot, the Gemara cites only a few instances: ensuring prompt and proper burial of a corpse; personal hygiene and dignity as related to the function of excretion; and the avoidance of disrobing in public. These are all fairly drastic circumstances. Collectively, they would set a standard restricting the license of kevod ha-beriyyot to very few situations indeed. Nevertheless, it is possible that the concept may be construed more broadly. Rashi, in any event, evidently did. Rashi s quotation of the precise formulation used in the texts concerning kevod ha-beriyyot strongly suggests that he interpreted this gemara by reference to that general concept rather than in purely local terms. Nor is the reason hard to find. The legal underpinnings of the license of kevod haberiyyot are nowhere clearly formulated in the Talmud. It is ordinarily assumed that it is grounded upon the Rabbis legislative authority with respect to their own injunctions. Inasmuch as these are their own creation, they could of course provide as they saw fit for their occasional suspension. As regards de-oraita injunctions, their passive violation could be sanctioned by the principle exemplified, for instance, in our not blowing shofar when Rosh Hashanah falls on the Sabbath that the Rabbis have the authority to uproot a law of the Torah in a case of abstention. As for their active violation, which such rabbinic authority could not sanction it cannot, indeed, be licensed by kevod ha-beriyyot. Rashi, however, cites a different source a principle initially qualifying the mitzvah of returning lost property but potentially having more universal relevance. On the basis of a somewhat unusual construction found in a verse, the Rabbis comment that despite the injunction, Thou mayest not hide thyself [i.e., so as to avoid returning lost objects], there are times when one may hide himself. One of the instances cited is if he [i.e., the finder] is an elder and it is not in accordance with his dignity. Clearly, if the license of kevod ha-beriyyot is derived from this source, be it even solely by analogy, it must extend far beyond prompt burial or avoiding nudity. Rambam likewise extends the bounds of this license. After establishing the principle that a kohen may defile himself with a rabbinically ordained impurity for kevod ha-beriyyot, he goes on to exemplify: For instance, if a mourner enters a beit ha-peras, everyone may follow him there in order to console him. The implications of this example fall short of Rashi s, but they still go well beyond the more extreme instances noted earlier. Similarly, in another context while urging a judge to be restrained in disciplining recalcitrant defendants or offenders Rambam appears to be thinking in fairly broad terms: Whatever [he does], let all his actions be for the sake of Heaven. And let him not regard kevod haberiyyot lightly; for it overrides rabbinic prohibitions. The context clearly suggests that Rambam is cautioning against all forms of unnecessary abuse; and this seems, in turn, to suggest a fairly broad conception of the license rooted in kevod ha-beriyyot. Just how far we should go remains in question, however. Several tentative guidelines come to mind readily. First, personal dignity must be significantly, albeit briefly, fractured, rather than merely ruffled. Secondly, genuine dignity must be involved, not superficial vanity. The avoidance of any and every frivolous hurt can hardly override an injunction. It can only be overridden when one has the halakhic and ethical right to be sensitive or feel threatened. Having suggested these guidelines, however, one immediately realizes that they are, inevitably, so ambiguous as to offer little definitive guidance.. It is therefore entirely possible that in defining kevod ha-beriyyot and the license granted by it we should employ different yardsticks, depending on whether or not a situation impinges upon the sensibilities of one s fellow. The cases cited in the gemara do not involve the feelings of others. Avoiding nudity and insuring privacy and cleanliness in excretion are purely personal; and burial, while it concerns another, concerns him only as a passive object rather than as a sentient subject. Hence, since the question is purely one of treating human personality per se with respect rather than adversely affecting others, the impact upon kevod ha-beriyyot must be fairly severe. However, where the prospect of hurting another is also present, as in the cases noted in Rashi and Rambam, it is conceivable that the principle may be much more broadly defined. One major qualification does suggest itself, however. The quest for amity can justify overriding norms only when the source of friction is not itself a halakhic issue. If a domestic or social quarrel can be patched up by temporarily overriding a specific law, it is conceivable that a dispensation may be in order. Such a dispensation 1

2 in no way undermines the authority of Halakhah as a whole. Rather, on the basis of that very authority, it momentarily suspends one section in favor of another. However, when friction is rooted in a direct challenge to the validity of Halakhah, it is inconceivable that its proponents should always back down in the interests of irenicism.(a state of public opinion for making peace) Our attempt to define kevod ha-beriyyot and shalom has not arrived at a truly precise formulation, one which could be readily applied at a practical level. Whatever the exact definitions, however, one point seems fairly clear. The dispensations warranted by these factors have not been sufficiently recognized. Wherever any reasonable line may be drawn, we have collectively strayed far on the side of caution. Precisely because these concepts are so amorphous and their application so potentially sweeping, posekim have generally been reluctant to resort to them as grounds for overriding halakhic norms. Their reluctance is thoroughly understandable. Inasmuch as these concepts lend themselves to widespread and dangerous abuse, one naturally tends to stifle even their legitimate application. No doubt, in the modern period particularly, as organized attempts at the irresponsible manipulation of Halakhah have actually materialized, the urge to tone down elements that, in reckless hands, could undermine its entire structure has become almost irrepressible. One suspects that, in some instances, even where the primary basis for a decision has been kevod ha-beriyyot or shalom, a posek has preferred, wherever possible, to advance narrower formal or technical grounds rather than encourage the use and potential abuse of general dispensations. Nevertheless, this conservatism, however laudable in motive and intent, is not without its own dangers. Elements such as kevod haberiyyot and shalom are central to a Torah Weltanschauung, a fact to which their legitimate and limited role in suspending certain halakhic norms clearly attests.the result is twofold. First, there is a danger that in situations in which they ought to be decisive, so that certain usual norms actually should be overridden, they may not be invoked. The wrong decision might thus be handed down; after all, relevant technical grounds for arriving at the same conclusion are not always available. This possibility is, in itself, a matter of grave concern.moreover, the reluctance to invoke a dispensation tends to feed upon itself. Once it has fallen into relative disuse, one is understandably reluctant to apply it more broadly lest he rock the boat or lest he be accused of rocking the boat. Even R. Hayyim Soloveitchik, despite the immense prestige he enjoyed as the foremost halakhic master of the early twentieth century, came under criticism for extending the concept of pikkuah nefesh beyond what had then been its prevalent range. Secondly, quite apart from possible specific errors, there exists a potentially graver danger. The axiological [ethical] centrality of kevod ha-beriyyot or shalom as the moral and religious basis of large tracts of Halakhah may be seriously undermined. The dispensation provided by them is not a mere technicality, nor is their application an exercise in legal mechanics. It is grounded in and hence serves to sharpen and to heighten the awareness of their position as fundamental Torah values. This point is clearly emphasized in the basic relevant texts. The Gemara does not merely state as it does in comparable cases elsewhere that kevod ha-beriyyot overrides the usual norms in certain situations. It states, rather, Great is human dignity, so that it overrides a negative precept of the Torah. Even more emphatically, Rambam, in the final words of the book of Seasons, on the Sabbath and the festivals, states that Sabbath candles take priority over Hanukkah candles for the sake of household peace, seeing that even a divine name might be erased in order to make peace between husband and wife. Great is peace, as the whole Torah was given in order to bring peace upon the world, as it is said, Her ways are ways of pleasantness, and all her paths are peace. Consequently, the failure to invoke these dispensations in any but the most extreme cases cannot but erode their position and popular awareness of that position as central values within the Torah-halakhic order. No committed Jew can regard such a prospect lightly. Some margin of safety is perhaps advisable. But must it be as large as we have tended to maintain? Statement of Principles on the Place of Jews with a Homosexual Orientation in Our Community 2010 We, the undersigned Orthodox rabbis, rashei yeshiva, ramim, Jewish educators and communal leaders affirm the following principles with regard to the place of Jews with a homosexual orientation in our community: 1. All human beings are created in the image of God and deserve to be treated with dignity and respect (kevod haberiyot). Every Jew is obligated to fulfill the entire range of mitzvot between person and person in relation to persons who are homosexual or have feelings of same sex attraction. Embarrassing, harassing or demeaning someone with a homosexual orientation or same-sex attraction is a violation of Torah prohibitions that embody the deepest values of Judaism. 2

3 4. Halakhic Judaism views all male and female same-sex sexual interactions as prohibited. The question of whether sexual orientation is primarily genetic, or rather environmentally generated, is irrelevant to this prohibition. While halakha categorizes various homosexual acts with different degrees of severity and opprobrium, including toeivah, this does not in any way imply that lesser acts are permitted. But it is critical to emphasize that halakha only prohibits homosexual acts; it does not prohibit orientation or feelings of same-sex attraction, and nothing in the Torah devalues the human beings who struggle with them. (We do not here address the issue of hirhurei aveirah, a halakhic category that goes beyond mere feelings and applies to all forms of sexuality and requires precise halakhic definition.) 5. Whatever the origin or cause of homosexual orientation, many individuals believe that for most people this orientation cannot be changed. Others believe that for most people it is a matter of free will. Similarly, while some mental health professionals and rabbis in the community strongly believe in the efficacy of change therapies, most of the mental health community, many rabbis, and most people with a homosexual orientation feel that some of these therapies are either ineffective or potentially damaging psychologically for many patients. We affirm the religious right of those with a homosexual orientation to reject therapeutic approaches they reasonably see as useless or dangerous. 6. Jews with a homosexual orientation who live in the Orthodox community confront serious emotional, communal and psychological challenges that cause them and their families great pain and suffering. For example, homosexual orientation may greatly increase the risk of suicide among teenagers in our community. Rabbis and communities need to be sensitive and empathetic to that reality. Rabbis and mental health professionals must provide responsible and ethical assistance to congregants and clients dealing with those human challenges. 8. Accordingly, Jews with homosexual orientations or same sex-attractions should be welcomed as full members of the synagogue and school community. As appropriate with regard to gender and lineage, they should participate and count ritually, be eligible for ritual synagogue honors, and generally be treated in the same fashion and under the same halakhic and hashkafic framework as any other member of the synagogue they join. Conversely, they must accept and fulfill all the responsibilities of such membership, including those generated by communal norms or broad Jewish principles that go beyond formal halakha. We do not here address what synagogues should do about accepting members who are openly practicing homosexuals and/or living with a same-sex partner. Each synagogue together with its rabbi must establish its own standard with regard to membership for open violators of halakha. Those standards should be applied fairly and objectively. 10. Jews with a homosexual orientation or same sex attraction, even if they engage in same sex interactions, should be encouraged to fulfill mitzvot to the best of their ability. All Jews are challenged to fulfill mitzvot to the best of their ability, and the attitude of all or nothing was not the traditional approach adopted by the majority of halakhic thinkers and poskim throughout the ages. 11. Halakhic Judaism cannot give its blessing and imprimatur to Jewish religious same-sex commitment ceremonies and weddings, and halakhic values proscribe individuals and communities from encouraging practices that grant religious legitimacy to gay marriage and couplehood. But communities should display sensitivity, acceptance and full embrace of the adopted or biological children of homosexually active Jews in the synagogue and school setting, and we encourage parents and family of homosexually partnered Jews to make every effort to maintain harmonious family relations and connections. 12. Jews who have an exclusively homosexual orientation should, under most circumstances, not be encouraged to marry someone of the other gender, as this can lead to great tragedy, unrequited love, shame, dishonesty and ruined lives. They should be directed to contribute to Jewish and general society in other meaningful ways. Any such person who is planning to marry someone of the opposite gender is halakhically and ethically required to fully inform his or her potential spouse of their sexual orientation. HOMOSEXUALITY, HUMAN DIGNITY & HALAKHAH: A COMBINED RESPONSUM FOR THE COMMITTEE ON JEWISH LAW AND STANDARDS by RABBIS ELLIOT N. DORFF, DANIEL S. NEVINS & AVRAM I. REISNER E. The Human Dignity of Homosexuals Tel Aviv University professor Delphine Haiun writes perceptively about the relationship between dignity as an internal state and dignity within a social context: Kavod is the inner value that makes man a human being, that 3

4 gives him/her identity as such; it constitutes a condition of human existence for him/her. This signification can slide into more institutional connotation, also present in the Bible. The kavod is, then, the social nature of a human being, his/her status, his/her importance, his/her value in society.since the Middle Ages, the word kavod has represented the name of God. What makes us human beings is the divine part of us, the presence of God in us. This description resonates with our experience. For gay and lesbian Jews, it is impossible to ensure an internal state of dignity as long as their social status is one of utter humiliation. The Rabbis recognized the social component of shame in calling attention to the fact that people are shamed (and are owed compensation for that) not only when they themselves feel humiliated, but also when that person s family or community recognizes something that has happened to that person as embarrassing. Rabbi Joel Roth has argued in his responsum, Homosexuality Revisited that human dignity is cited in the Talmud to permit person X to violate the law only in order to protect the dignity of person. This would mean that a gay or lesbian Jew may not claim an exemption from the rabbinic prohibitions for the sake of his or her own dignity. Rabbi Roth believes that human dignity may not be used as a rationale by a person to violate the law for his own sake this, he argues, would be a theological absurdity in that an observant Jew would be invited to place his own dignity higher than God s. Of course, this is precisely the argument used in the Talmud for why human dignity does not supersede biblical law. Yet the Talmud does not discern a theological objection when human dignity supersedes rabbinic law. It even provides a drashah to explain that sometimes you can ignore the injunction because of human dignity. Some of our examples do indeed conform to Rabbi Roth s view of human dignity as an altruistic principle. A Jew may detour from the task of reading Megilah or performing a brit milah in order to assure the burial of an unattended corpse: מת מצווה.Yet, other examples clearly refer to the dignity of the actor himself: An elder need not return a lost object, since this act would undermine his dignity. A person may carry stones in a כרמלית in order to wipe off excrement for his own dignity s sake. A superior court judge need not שבת תחום testify in a lower court. A man caught [or carried off by gentiles] outside of the Shabbat boundary, the,and therefore prohibited from moving more than four cubits, may nevertheless move away from a place where he has defecated, or move to a private location for his own dignity s sake. Rabbi Roth argues that even the latter cases concern not the dignity of the actor, but the dignity of his neighbors. He claims, for example, that a man is allowed to carry stones and clean himself so that others will not be offended by his smell; he is allowed to walk more than four cubits into a secluded location so that others will not be offended by seeing him defecate; as an elder, he is exempted from returning a lost object so that others will not be humiliated by his need to fulfill this mitzvah. We find Rabbi Roth s claim unconvincing since the Talmudic cases do not make this distinction, and it is hard to believe that the primary concern in these cases is the dignity of bystanders rather than that of the person most directly affected. Rabbi Louis Ginzberg discusses the concept of הבריות כבוד in his great commentary on Yerushalmi Brakhot... Rabbi Ginzberg states that the law is more sensitive to the humiliation of the individual than to the disrespect to the public. This commentary supports our understanding that kvod habriot describes the dignity of an individual within his or her social context. Dignity is a social phenomenon. In all of these cases, there is interplay between the dignity of the actor and the dignity of his neighbors. For a person to smell filthy in isolation may be uncomfortable, but it becomes humiliating only when others smell him. His humiliation humiliates them and vice versa. For a mourner to walk home alone from the funeral may be depressing, but his dignity is impugned only when it appears that a neighbor has refused to walk with him. For a sage to strip off forbidden clothes in public may be an affront to the dignity of his neighbors, but this is certainly because they feel horrified to have witnessed his humiliation. For a sage to be forced to stand in testimony in a lower court humiliates him and also his students, who feel that they have participated in his humiliation. It is therefore not accurate to discuss the dignity of X as if it were separate from the dignity of Y. As Rabbi Waldenberg writes in the passage cited above, the halakhah considers the person s dignity, whether in his own eyes, or in the eyes of others. Some cases are primarily about the actor s dignity, and some are primarily about the dignity of his neighbor, but all are ultimately about the social fabric of Israel. This, of course, is precisely our point. We are concerned for the dignity of gay and lesbian Jews not only because we are sympathetic to their dilemma, but also because their humiliation is our humiliation. We wish to welcome them, but we do so in such a forbidding fashion that they are repeatedly humiliated. Looking at our own congregations, we too are embarrassed by our cold welcome. For example, a gay man told us of going to minyan to say kaddish during shloshim for his father. The rabbi prevented him from leading services because he was gay, and then showed him an entire list of leadership activities from which he was banned based on that rabbi s interpretation of the CJLS s 1992 consensus statement. This humiliation was experienced not only by an individual, but by an entire congregation. When gay and lesbian Jews are finally welcomed to take their rightful places in our community, then we will have safeguarded their dignity as individuals, and our dignity as a community. It is 4

5 difficult to imagine a group of Jews whose dignity is more undermined than that of homosexuals, who have to date been told to hide and suppress their sexual orientation, and whose desire to establish a long-term relationship with a beloved friend have been lightly dismissed by Jewish and general society. They have, in effect, been told to walk alone, while the great majority of Jews are expected to walk in pairs and as families. In such a context, where is the dignity of homosexual Jews? How can we hide from their humiliation? What halakhic recourse is available to integrate gay and lesbian Jews into the observant community with full dignity? Here we acknowledge the lessons of modern science and psychology in teaching that homosexual orientation is not an individual decision but rather a core component of human identity often established by childhood. For the contemporary poseik to possess this information, to hear the distress of gay and lesbian Jews eager to observe the Torah, and simply to state that nothing can be done is to ignore the halakhic principle of human dignity. Until this point, halakhic authorities have maintained a complete ban on all intimate acts by homosexuals. The most generous opinions have viewed homosexuals as devoid of individual agency, and thus exempt from the most violent penalties of the law. Yet even such opinions establish the spurious ideals of: celibacy, which is impossible for many people; conversion therapy, which has been discredited by the psychological profession; or surreptitious sexual behavior, which is dangerous on many levels. None of these options allows for a gay or lesbian Jew to live openly and honestly within the Jewish community. None of these solutions provides for his or her dignity. It is not possible to set aside the explicit biblical prohibition on anal sex that is stated twice in Leviticus and frequently reaffirmed by the Rabbis. As we have shown, the kavod habriot principle supersedes rabbinic, not biblical law. Of course, there is a theoretical way to overturn biblical law via the legislative mechanism of takkanah (decree). We do not find this mechanism to be appropriate in our case, because takkanah requires the consent of the majority of the population, and this subject remains quite controversial in the observant Jewish community. However, the rabbinic restrictions upon gay men and lesbian women that result in a total ban on all sexual expression throughout life are in direct conflict with the ability of these Jews to live in dignity as members of the people of Israel. For this reason, the halakhic principle of gadol k vod habriot must be invoked by the CJLS to relieve their intolerable humiliation. We must make open and rigorous efforts to include gay and lesbian Jews in our communities, to provide a proper welcome and a legal framework for the normalization of their status in our congregations. We are aware that the continued biblical ban on anal sex may be extremely difficult for some gay men to observe, and that this ban is in some ways more challenging than the ban on menstrual intimacy for heterosexual couples for 7-14 days per month. However, this responsum provides gay men with other options for sexual intimacy, with full social acceptance in the observant Jewish community, and with a feasible path to a life of Torah observance. Many observant Jews who are gay have already adopted this practice. Rabbi Benny Lau: Modern Orthodox Israeli Rabbi: The need of a person to get out of loneliness and live in couple-hood is an existential need... I am not concerned here with the legal question but a question of principle - whether life together, under one roof, by same-sex couples who find understanding and love for each other, is a prohibition? I think we have to create boundaries for an answer to this question: One border one cannot permit a person to bring himself to transgress the Torah. Any physical or mental activity that produces physical arousal that is not allowed - will be prohibited. Without discussing the infinite variety of possible situations I say the Torah prohibition of sexual stimuli cannot be made permissible. The second border it is not permissible to decree on people a life of being alone. Exiting from loneliness to life of couple-hood is really a life-saving act. I have seen many lonely individuals in my short life, and I know that they often in a high-risk situation [for suicide]. A man who cannot live true relationship with a woman (or vice versa) and is sentenced to a life of loneliness it may be a death sentence for him. Halacha knows very well the concept of "saving a live" and makes wide use of this concept whenever possible. Also "even a worry of [safek] saving a life" overrides [the prohibitions of] Shabbat. Even on this issue [of same sex couples] we have to use the same conceptual system and not be afraid to define the reality of loneliness as a worry of saving lives". This definition requires us (family members, educators and rabbis) to do all we can that the people living around us will exit from darkness to light and from death to life. Loneliness is deadly poison and faithful relationship is the elixir of life. Choose life. 5