Do not lie with a male as one lies with a woman; it is an abhorrence.
Vayikra 18:22
In 2015, the Supreme Court of the United States legalized same-sex marriage. We need to ask ourselves why there has never been any discussion about legalizing other sexual relationships that are currently illegal, such as incest, and why a union as obvious as a heterosexual marriage is actually permitted. These questions may sound very strange, even disturbing and shocking, but they are profound questions nonetheless. Examining them will help us understand what is behind the fierce debate surrounding the Supreme Court’s decision. This is bound up with many other issues concerning marriage, sex, religious freedom, and the role religion plays in our society.
In Mishnah Chagigah[1] we are confronted with several educational directives related to esoteric matters. The mishnah teaches that some subjects, such as the secrets of Ma’aseh Bereshit (the Creation), should only be taught to one person at a time, while other metaphysical topics, such as Ma’aseh Merkava (the vision of the Divine Chariot mentioned in the book of Yechezkel), should be taught only to one pupil who is wise and understands intuitively. The main reason given for these rulings is to prevent misunderstandings. When only one student at a time is present, the pupil will be forced to listen carefully to every word spoken. There is no luxury of dozing off, hearing only half the lecture, and drawing wrong conclusions.
At the opening of this mishnah we are informed that matters of arayot (forbidden sexual relations) should not be taught to more than two students at a time. The standard explanation for this “lenient” rule (two students instead of only one) is that both students will make sure they hear all that is said about sexuality, since most human beings are preoccupied with the subject. Even when the teacher is speaking to only one of them, the other one will also listen. Three, however, is considered problematic, since the other two may start a discussion among themselves, draw the wrong conclusions, and permit what is forbidden, or vice versa.
Unethical relationships?
The Maharsha, Rabbi Shmuel Eliezer Eidels (1555–1631), however, gives a different interpretation of the rules related to teaching sexuality.[2] According to him, these rules are not just based on the chance that the students may come to the wrong halakhic conclusions, but because these matters of arayot are totally mysterious as well, and are in the same category as the esoteric Ma’aseh Bereshit and Ma’aseh Merkava. No explanation is available as to why certain sexual relationships are forbidden and others are permitted. They are in the category of the “beyond.”
The Maharsha asks, for example, why marrying one’s sister is prohibited. He also questions why a man is prohibited from marrying his living wife’s sister, but is allowed to marry the same sister after his wife has died.[3] (According to the Torah, one is allowed to marry more than one wife, but Rabbenu Gershom [c. 960–1028/40] forbade this around the year 1000.)[4]
To claim that any of the prohibited relationships are fundamentally “unethical” is untenable, for the obvious reason that the children of Adam and Chava only married their brothers and sisters. Nowhere is it written that this was forbidden. In fact, it was the only way God saw fit to propagate the human species. Similarly, we see that Yaakov married two living sisters. The same is true of the parents of Moshe Rabbenu. According to Torah Law, Amram was not allowed to marry his aunt Yocheved.[5] Most remarkable is the fact that these marriages laid the foundation for the Jewish people and were therefore indispensable!
It is for this reason, says the Maharsha, that one should teach these matters to only two pupils at a time, not three, so as to prevent attempts at explanations, since there are none. The laws of sexuality are so complex — in fact, completely incomprehensible — that two students might possibly start arguing among themselves while the teacher is concentrating on the third. The students could advance all sorts of explanations, claiming that they’ve found the raison d’etre of the subject and draw the wrong conclusions.
The Maharsha’s observation is of great importance. All discussions about why certain marriages or sexual relationships are forbidden are doomed to fail! No human reasoning can explain them in any consistent way.
Religious thinkers should therefore refrain from giving primary reasons for these prohibitions. It would be counterproductive and dangerous. There is no objective reason why homosexuality and incest are forbidden. From the religious point of view, these prohibitions are celestial, just like Ma’aseh Bereshit and Ma’aseh Merkava. They seem to touch on metaphysical criteria that are known only to God.
Why is a heterosexual relationship permitted?
At the other end of the conversational spectrum, one could ask religious and secular thinkers why a heterosexual relationship is permitted and even encouraged? What, after all, are the moral grounds to permit such a relationship? Perhaps every kind of sexual activity should be forbidden and considered unethical, since, as the Rambam approvingly quotes Aristotle, “the sense of touch is a disgrace to us.”[6] This is what the Danish philosopher and father of religious existentialism Søren Kierkegaard seems to claim when he argues against marriage.[7] The fact that this would ultimately result in the extinction of humankind in no way diminishes the ethical problem.
This problem is more pronounced when considering that heterosexual marriages result in women becoming pregnant, often suffering great pain and sometimes, mortal danger. Who says that this is ethically permitted? As a matter of fact, what gives us the right to bring children into the world when there is the possibility that they will fall victim to diseases, war, and natural disasters? Is it not more responsible to avoid having children, since those who remain unborn would not suffer the slightest discomfort?
However unsavory these arguments may sound, we are forced to ask, from a secular perspective, what could be wrong with incest and other relationships that are forbidden by secular law? As long as such relationships are formed by mutual consent, and no one is physically or mentally harmed, there should be no reason for these relationships to be forbidden.
The farce of human dignity
Arguments such as “the need for human dignity” are of little meaning in this argument, because it is unclear how one defines human dignity. And even if there was a clear definition, one could ask why it should be an absolute inviolable value.
We must therefore conclude that from the religious and secular perspectives, laws related to sexuality are arbitrary. In both religious and secular societies these laws are rooted in a “will” that is outside of what we call “reason.” For the religious, it is the Will of God that provides us with rules telling us what is permitted and what is prohibited. And for the secular, it is mutual consensus, the voice of the people, and often a kind of relativism that decides what is permitted and what is prohibited. Secular law seems to be rooted in the notion that certain sexual relationships are prohibited because they feel wrong, although we are unable to explain why. Paradoxically, we may call this a kind of “categorical imperative,” using Immanuel Kant’s famous axiom. Some philosophers, however, would claim that this “imperative” is borrowed from religious principles as a kind of Jungian archetype, although it is doubtful that Jung had this is mind or would have even agreed.
We are forced to conclude that any debate between the religious and secular communities on the permissibility or illicitness of certain sexual relationships is utterly meaningless. Each community comes at it from a different foundational category. There is no way that either can deliver an argument that is objectively sound. No ethical claim can be made to decide whether heterosexual, homosexual, and other relationships should be forbidden or permitted. Ultimately, it is an amoral issue which can be decided only on the acceptance or rejection of an absolute will (such as God’s), or the imposition of a cultural taboo grounded in a feeling of uneasiness with certain sexual activities.
Whether or not the homosexual act forbidden by the Torah is identical with same-sex marriage is a different question. Religious authorities and thinkers need to set their minds to this weighty question. It may be one of the most complex questions they will ever have to consider.
In the meantime, it is our task to ensure that people are not harmed by these religious or secular principles and that their rights are protected. Not only will it be necessary to ensure the rights of same-sex couples, but it will be just as essential to protect the rights of synagogues, churches, and other religious groups to express and follow their religious convictions.
This is sure to be a major headache for the United States Supreme Court, the lower courts, and all of us in the years to come. What will become clear is that the courts will be unable to come up with a consistent solution and will have to fall back on compromises and “legal trade-offs.”
Perfect solutions to human problems cannot be coherently conceived.
Questions to Ponder
- Do you agree with the notion that there are not, and should not be, any explanations as to why certain sexual acts are prohibited? And if you do agree, why then does the Torah apparently give explanations: a man is forbidden to his daughter-in-law because that is a “tevel” (perversion); to a woman and her mother because that is a “zimah” (depravity); to his sister because that is “Hesed” (disgrace), etc.?
- Can we indeed learn positive ethical ideas from our ancestors’ behavior? A good portion of them seem to be about “what not to do” rather than “what to do”! For example, Yaakov marries two sisters — with very negative consequences. The Torah seems to strongly discourage polygamy and marrying two sisters for very good psychological reasons, not because God decided to arbitrarily forbid it. What do think is the message of stories like this?
- If Lot’s daughters have sexual relations with him without his consent (although they did have good intentions), does this not send the message that sexual relations with family members can never be truly consensual in the way that they can be with non-relatives?
- Although Ma’ase HaMerkava and Ma’ase Bereshit do appear in the same Mishnah as arayot, isn’t there an important fundamental difference between the two? Discussing the mysteries of creation and miracles is very different from discussing Torah prohibitions from which we need to derive Halakhah! Can we create Halakhah based on pesukim without discussing them and the reasons for them?
- The Mishnah states that we should be careful discussing matters of arayot, not that we shouldn’t discuss them at all. If these discussions are doomed to fail, why is the Mishnah teaching us how to have them?
- The essay suggests that there is “no rational principle” that would forbid incest but not homosexuality. Do you agree? What about the fact that a person’s sexuality (even if it is on a scale and can change over time) is a part of them from when they are born — no one has a “sexual orientation” that attracts them to parents, siblings, or menstruating women, but people do have sexual orientations that determine whether they are attracted to men or women?
- Should the rights of synagogues and churches to religious freedom be protected even if — as is often argued — discriminating against homosexuals or homosexual couples is determined to be morally wrong, akin to racism? Does religious freedom extend to functioning in a morally wrong manner?
Notes
[1] Mishnah Chagigah 2:1.
[2] See Maharsha, Chiddushei Aggadot on Chagigah 11b, s.v. “ba-arayot.”
[3] Vayikra 18:9, 18.
[4] See Shulchan Aruch, Even ha-Ezer 1:9-10.
[5] Vayikra 18:12–13.
[6] Moreh Nevuchim, part 3, chap. 8.
[7] See Julia Watkin, “The Logic of Søren Kierkegaard’s Misogyny 1854-1855,” Kierkegaardiana 15 (1991): 82–92.
