parshat achrei mot-kedoshim, leviticus 16 -20
Join Geoffrey Stern and Rabbi Adam Mintz recorded on Thursday April 27th 2023 on Clubhouse. A radical new Rabbinic Opinion titled Gay Women (Nashim Mesolelot) written by Rabbi Jeffrey Fox makes us read what is referred to as the Holiness Code in Leviticus in a new way. In the process we are exposed to the role of Responsa in the evolution of halacha.
Link to the Gay Women Responsa: https://www.yeshivatmaharat.org/gay-women-teshuva
Link to Sefaria Source Sheet: https://www.sefaria.org/sheets/482838
Welcome to Madlik. My name is Geoffrey Stern and at Madlik we light a spark or shed some light on a Jewish Text or Tradition. Along with Rabbi Adam Mintz, we host Madlik Disruptive Torah on clubhouse and share it as the Madlik podcast on your favorite platform. This week’s Torah portion is Achrei Mot-Kedoshim. It contains what is known as the Holiness code which describes and prescribes pretty much every sexual deviation. It is the perfect opportunity to celebrate and review a radical responsa that was published earlier this year. It was written by Rabbi Jeffrey Fox, and called Gay Women (Nashim Mesolelot) A Teshuva and published by Maharat Yeshiva. So join us for Women who love women who love Torah.
How are you this week?
Adam Mintz 01:07
I’m well, and I’m really excited about our conversation each week is good, but this week might be special.
Geoffrey Stern 01:13
Well, as I said, Rabbi Jeffrey Fox is the Rosh HaYeshivah of Yeshivat Maharat, and I believe you teach at Maharat.
Adam Mintz 01:21
I sure do,
Geoffrey Stern 01:22
We are hoping that we get a lot of insight. I did say that he wrote a radical responsa. So before we even begin, even begin reading our parsha, I just want to say: if you look back at the history of biblical law, and how it is made, and how it is changed, it really is a responsa. And what is a responsa in Hebrew? It’s a She’elot u-Teshuvot (Hebrew: שאלות ותשובות). It’s when Jethro comes and confronts Moses and asks him a question. And Moses then goes to God for an answer. It’s when the daughters of Zelophehad ask a question that impacts their personal life. And Moses, the halakhic authority of the moment has to come up with an answer. And what’s fascinating about that, as opposed to what we normally do, which is just look at texts and try to analyze them is here we are looking at when the Halacha; the rubber hits the road, it’s when you capture a moment in our history, whether it’s the daughters of Zelophehad, or it’s at the foot of Mount Sinai with Jethro, you get to capture a moment in history where something has changed and demands an answer. That’s very exciting. What does responsa, She’ela u-Teshuva mean to you, Rabbi.
Adam Mintz 02:52
So, especially in this case, it means taking the traditional law, the traditional practice and applying it to contemporary modern situations. That’s the difference between a She’ela u-Teshuva, a responsa. And a just a legal book, a legal book just tells you the law, a responsa tries to apply that law to a very specific case. And this is a perfect example of someone trying to apply the law in general to a very specific issue.
Geoffrey Stern 03:27
You know, I was thinking about it. And in addition to all that, we’ve said till now, it also has a traditional form. And in that sense, it’s almost like a sonnet. And it can be almost judged by how well written it is how within the guidelines and the guide rails of how halachic discussion and argument is made, how it’s put together. And I think the other part of it, because if you download and there is a link to download the full responsa up on our Sefera source sheet, you will see that at least 30% – 40% of it is Rabbi Jeffrey Fox had the chutzpah, the gall, or I would say the self-confidence to invite peer review and attach it to his responsa. And peer review is also something that I think is so special about the responsa tradition, you are engaging with prior opinion and you’re inviting your peers, and then ultimately, future scholars to interact with you. And this responsa, I encourage everyone to read it. There’s going to be parts of it that are gonna be above your paygrade there were parts of it that were above my paygrade but it’s a wonderful example of this tradition. She’elot u-Teshuvot that has made our Torah so adoptable and such a living living Torah.
Adam Mintz 05:10
I agree with you 100%. And you’re right. I mean, don’t be put off with the fact that there’s some very technical halakhic Gemorah arguments, everybody can understand the main points of this. And I think that’s what we’re going to talk about tonight.
Geoffrey Stern 05:26
And before we take off, I should also say that some of the great writings of a Maimonides are his Epistle of Yemen, his letter to Ovadia, the Ger; the Convert. Again, many times we read pieces of Torah, Midrash, or whatever, it’s hard to pinpoint what period they were written in, what was the context of their writing. You don’t have that in a responsa to a sponsor is responding to a question. So again, the responsa is Gay Women. It’s called Gay Women Responsa. You can Google it, it’s https://www.yeshivatmaharat.org/. They’re showing it on their website. And the reason we’re discussing it this week, as I said, in the intro, is in Leviticus 18. It talks about all of these sexual “perversions” it has, a man cannot lie with a man, all of this stuff. You might recognize it even if you go to synagogue once a year on Yom Kippur, because, yes, we read it on Yom Kippur. So we’re gonna focus initially on just one verse, because it’s that verse that he brings to trigger the first discussion. It’s Leviticus 18, 1-3, and it says, The LORD spoke to Moses, saying: Speak to the Israelite people and say to them: I the LORD am your God. You shall not copy the practices of the land of Egypt where you dwelt, or of the land of Canaan to which I am taking you; nor shall you follow their laws. , seems pretty innocuous. But ultimately, what happens is that in this long list of things that can’t be done, it says nowhere, that a woman cannot lie with a woman. So to get to that prohibition, if one needs to get to it, or if one feels that the Halacha demands one gets to it, one has to read the Sifra, and in the Sifra, it says, as the deed of the land of Egypt, I might think that means you shall not build or plant as they do, and therefore it is written and their statutes you shall not walk. So we already have that prohibition. So what does this come to forbid? What did they do in Egypt and Canaan that you’re not allowed to do? A man would wed a man and a woman, a woman? So there were two fascinating things about this Sifra, if we are laser-focused on the issue of were, is it explicitly forbidden for a lesbian relationship? Number one, it is admitting, without saying as much that it’s not specifically listed in the Torah, and that it has to hang itself on things that were done in Egypt. And the other part of it is if we go to Vayikra Rabbah, which talks about and amplifies this, and it says Rav Huna said in the name of Rabbi Yossi, “The generation of the flood was wiped out only because they wrote marriage documents for men and women.” So the rabbis and Rabbi Fox follows different threads within rabbinic tradition, how they took this, but this is one of the legs upon which there were arguments made, that women cannot lie with women. And it therefore has two things about it. It has one, maybe the sexual act, and two, it talks about that they wrote marriage documents for men and women. And this interpretation believes that they wrote marriage documents between a man and a man and a woman and a woman. So Rabbi Fox takes a long time to track these different ideas through the Hologic commentaries. And ultimately, the big question is, Is it forbidden? Why does it have to say explicitly that it was forbidden. I mean, there are many places in our parsha that it talks about different things. And it says it is a ToEva. It is Zima, it is a depravity, it is a terrible thing. But it doesn’t at the end of the day ultimately say that about a lesbian sexual relationship. I’d like to think and I’d love your opinion on this rabbi is yes, because he is writing within the constraints of a Teshuva, he has to literally link all of the opinions and map them. But what’s fascinating to me on a page of any page of Talmud is many scholars try to chart it out, they’ll actually get a blackboard and try to put all of the different opinions together. What I’m always fascinated, is by the multiplicity of the opinions, and as I read this teshuva, and we’re going to start picking up on some of that. What’s fascinating to me is even from the get go, the fact that the rabbi’s kind of recognized this type of relationship, and they recognize it that it wasn’t explicitly mentioned, is something to take note of, and then they bring the question of marriage, as opposed to just a relationship, we’re starting to get the different ingredients of a discussion.
Adam Mintz 11:35
So you said a lot, and I think all of it is right. And I think, you start with the verse in this week’s parsha, and you start with a Sifra, the Sifra takes it in a direction, that it doesn’t have to take it in, it means the idea that what’s wrong with Egypt is homosexual relationships is not explicit anywhere. And that’s interesting that they take it in that direction, that they were thinking, about those kinds of things. This is called the Arayot. This is the forbidden and the illicit sexual relations. This is a famous Torah reading, because on Yom Kippur, at minha, we read this Torah reading. So it’s familiar to people. And a homosexual male relationship, a man and a man is actually explicitly mentioned in the Torah as being prohibited. That’s what it says that וְאֶ֨ת־זָכָ֔ר לֹ֥א תִשְׁכַּ֖ב מִשְׁכְּבֵ֣י אִשָּׁ֑ה a man is not allowed to lie with a man תּוֹעֵבָ֖ה הִֽוא , it is considered to be an abomination. So that’s explicit in the Torah, a lesbian relationship is not mentioned anywhere. That kind of gives room for this Teshuva to be written. And that’s what he’s trying to do.
Geoffrey Stern 13:06
And in the criticisms, you could easily criticize him right there and say, Why is he putting on this narrow focus? Because in a sense, what he’s saying is, I’m not worried about the men right now. I want to focus on the women. But there is one response written by a woman, Rachel Fried is her name who, who says she feels that as a lesbian woman, she has been ignored, because I mean, you could argue that she should feel like she’s dodged a bullet. Because there are many orthodox women who would say the Torah doesn’t say anything about a lesbian relationship, so I dodged a bullet. What she is feeling is that she’s been left out, is that the Torah is not even talking about her. There are a number of quotes are one associated with Rav Moshe Feinstein who wrote beautiful halakhic Responsa who basically ….. and by the way, you said that many parts of this Responsa are very technical. They also very graphic… he quotes from Rav Moshe Feinstein, and he sums it up as saying, you can’t have illicit sex without a penis. So in a sense, he was almost saying that women are overlooked because it doesn’t matter. The relationship between women doesn’t matter. She says that really I almost wish the Pasuk did include woman so that at least I could be part of the narrative. Instead, women are treated as if the Torah prohibitions apply to them directly when they aren’t even written in the story. To me this represents one of the worst kinds of erasure. And she, thanks Rabbi Fox for bringing her into the conversation.
Adam Mintz 15:11
There’s so much there. That’s interesting, right? You’re right that a lot of people would say, wow, you know, lesbians avoided the problem, right?
Geoffrey Stern 15:19
Yep. So so let’s talk about that for a second. Because she starts by writing something that I find the most fascinating. She says, understanding the differences between descriptions and identities is necessary in order to have a productive conversation. Meaning to say that I started by saying, you can’t have a Teshuva without a Shaialah. You can’t have a responsa, unless there’s a need. And Rabbi Jeffrey Fox defines what the need is, he says, we are living in a time when too many great Rabanim and Poskim view Torah through a lens that destroys the lives of gay women in parentheses (and men). The Gamora is trying to teach us that sometimes, even after many years of deep learning, there is a need to go back into the cave and rethink our approach. And he really feels and he must have gotten this firsthand if he was here, I would ask him what instigated this teshuvah. But I’m sure 100% And I’m sure you can confirm it to me that like the name of this podcast, it’s women who love women who love Torah. If this was a teshuvah written for non-observant, non-connected Jews who say I really want to eat brownies on Pesach. That would not elicit a teshuvah. If it was a non-committed Jewish woman who wanted to have a sanctioned lesbian relationship. That too might not elicit a Teshuvah. What has changed today is that there is a community of women who love the Torah, who love the 613 commandments, who feel they are a part of the community. And here’s where the difference lies. And here’s where this woman has hit the nail on the target. This is not a question as much about an act as it is about identity. They were created the way they were created. They love shabbat. They love mitzvot, and they want their who they are sanctioned. And I think that is the paradigm shift that elicited a teshuvah like this a responsa like this. And you can make the argument and I think Rabbi Fox has made the argument that a generation or two or three ago, maybe even a generation ago, he says that Rav Moshe Feinstein probably could not even fathom what a loving, long term committed lesbian or homosexual relationship could be, and probably could not fathom what all of the different gender identities or lack of identities that we now are understanding are. So this has taken it away from just giving a ruling on an activity to giving a ruling on an identity. And I think that is a major paradigm shift,
Adam Mintz 18:27
I would agree with you. And I think if you read some of the reactions…. , You see when you write a responsa, so it’s a halakhic responsa means it’s based on the Halacha. But clearly, he is being driven by a motive to be sensitive to lesbian relationships. And basically, if you want to talk about his, the approach, the approach is that he knows where he wants to get to, and he kind of allows the sources to evolve to reach that conclusion. And you’re right, he was courageous, not only to allow for responses, but responses that didn’t necessarily agree with him. That’s an amazing thing. Right. He actually includes responses that don’t agree with them. And they claim the following at least one of them claims the following Rabbi Clapper, he says that he jumps too far, meaning that the sources don’t say that a lesbian relationship is allowed. They say at very most, that a lesbian relationship is not biblically prohibited because the Torah doesn’t mention it. It’s only rabbinically prohibited. And Rabbi Clapper, it says that to jump from there to say that it’s permitted and maybe even a holy Relationship. He said, quote, he says, Rabbi Fox needs more proofs for that. I’m not convinced that he’s right. So it’s interesting when, when the reality that you want to create and the literature that you have don’t necessarily agree with one another, how you reconcile the two? That’s really a very interesting question.
Geoffrey Stern 20:30
So I want to get into some of the actual arguments. And there’s one, I promise Rabbi fox that I was going to send him a copy of this podcast. So there’s one innovation that I want to bring to the table. In the comments by Rachel Fried, she mentioned something that I had heard anecdotally, but see confirms it. And she confirmed that the irony of this delineation is that many rabbis and community leaders promote the idea of gay men and lesbian women marrying each other so that they can be part of the community and live normal lives in these arrangements it is often understood that those two individuals will have extramarital encounters. And then she goes on to say that there are sad phantom matchmakers who are literally set up to encourage and support this, sham. Now one of the sources that he brings in his responsa this is Rabbi Chaim Dovid Yosef Weiss, Satmar Dayan in Antwerp, Vaya’an David vol. 7 Siman 13, Section 6 (page 26) – published 5771 (2010/1) , I was also asked by a woman whose husband will not have sex with her. And in order to calm her desire, a friend of hers rubs her privates is this forbidden? What it doesn’t say is, maybe the husband is gay. And he goes on to give his advice. He says, we certainly should rebuke the husband with a strong rebuke for not fulfilling the mitzvah of onah. And nevertheless, this should not be permitted, except in a case of really great need, what he means is should not be permitted, that she should not be able to fulfill her sexual desires. And it should only be permitted in a humble fashion with a humble woman. And that he says, practically I did not permit it at all. So there were so many fascinating things about his answer. There’s something about Teshuvot, about Responsa, that you can have an opinion that is maybe a hava amina, you might think, and then you give up on the idea, but the fact that you’ve listed the you might think it already becomes a part of the Halachic record. So here we have this rabbi, dealing with a marriage that is not working, recognizing that the woman has her own sexual desires, which in and of itself, in this patriarchal society is interesting. And dealing with these issues, these are real issues. So I just find it totally fascinating how the rabbis nonetheless, try to deal with it and in dealing with it show a little bit of flexibility. Another interesting case, is an androgynous person, a person whose sex is not totally defined …. today, that is part of our nomenclature, we talk about not having pronouns or for people being able to choose their gender. So one of the Halakhot it talks about is that an androgynous person cannot marry a man because he might be considered male, he might be considered female on the side that he is male. That would be a something that was explicitly forbidden, but he can marry a woman. Because again, there is this line, there is this notion that it’s not totally forbidden. It’s a peritza b’alma. It is something that is repugnant, not accepted. Rabbi Fox brings an example of pizza ALMA, the same language that is used for a woman who eats a sandwich in the street, who dons yarn in the street, who nurses a baby in the street. And one of the arguments that he makes here is that these things are socially subjective, certain things that might not have been acceptable in the past can become acceptable now, certainly it’s not grounds for divorce if your wife eats a sandwich in this suite, and he brings all of these fascinating sources.
Adam Mintz 25:07
They’re fascinating. So there are a couple of things you just said, you know that what is considered pritzut? What is considered to be, immodest behavior is probably the right word. And what he points out is that the term immodest behavior is very broadly defined in the Talmudic sources. So to limit it to sexual behavior, it’s just not fair. I think those kinds of points are very important, because we’re, we tend to understand things in a certain way. And he makes the point that that’s not necessarily so.
Geoffrey Stern 25:41
I mean, to me, the go to is it says I believe in Masekta Megillah that a woman cannot read the Megillah. Because of kavod Hatzibur. Well, you know, that was written 1000 years before, there were men’s clubs that didn’t let a warm woman come in because of kavod HaTzibur (propriety), it just wasn’t it in those days, it was socially unacceptable. But that begs you to say that in a different generation, when women are surgeons, or women are judges were women are leaders, that no longer takes away from the kavod, from the honor of the congregation, I want to get back to another thread that he drops. If you recall a second ago, I said that when it said you can’t be like Mitzrayim (Egypt), one of the things that it says is that they condoned marriage of man to man and women to women. Actually, it goes on a full list of other marriages as well. And one of the things that every one of those relationships has in common, according to Rabbi Fox is that they are marriages made not to have children. They are marriages designed so that you can be a playboy the rest of your life and you don’t have to procreate. And his argument to that is now adays with artificial insemination and a change again, in society, you can have a same sex couple who is totally committed to procreation. So again, he talks also another thread that he has, is that really the whole forbidden nature of a same sex relationship is for a married women, because it is not fidelity, it’s not respect for her marriage is diminished by it. But a woman who defines her commitment to marriage by a relationship with another woman would be a left out. You know, in some of the comments from the rabbi’s. There was one rabbi who said, this goes much, much too far. I wouldn’t subscribe to something like this, unless you had a bunch of Talmudic Rabbi authorities who would sign in, it’s almost an invitation, it’s an insight into the process that we are watching before our eyes, which means that it takes somebody who is brave, like Rabbi Fox to be the first and then over time, maybe yes, you do get other rabbis who will sign on? And then there’s the really big question of why did he focus only on lesbian relationships? And how does this affect other non-sanctioned relationships? Is it a slippery slope? Or is it and this is where I think the insight that we talked about before becomes critical, once you take these laws outside of the realm of forbidden acts, and you start talking about identities and how we define how identities are understood. That changes everything. And yes, it is a slippery slope, but not in a flippant way. What it means is it becomes a paradigm shift that once we can see committed Jewish women who are living wholesome lives are contributing to the community or having a family life and well that it will change our conception of what the identities of people that don’t fall into some of the preconceived notions. And we will realize that once they’re no longer outliers, they can be looked at differently. I think that’s the powerful potential of a teshuvah such as this?
Adam Mintz 30:03
Well, you’re saying a whole bunch of things. Let’s take one thing at a time. The first thing is the idea of a paradigm shift. And paradigm shifts are interesting. Because you’re right, you need someone courageous like Rabbi Fox, but but the end of the story, but we would call the last chapter of the book, we don’t know what that last chapter is going to look like, means what he’s setting up is that other rabbis will follow. It’s very hard to know how the Orthodox rabbinic community is going to respond to this Teshuvah.. it’s too soon, because the teshuvah just came out right before Pesach. So we have to see how they’re going to respond. And I think that by including reactions to his teshuvah, he’s welcoming other people. And maybe you know, I don’t know, we’d have to, invite him onto the podcast to see whether he would is willing to, you know, to redo some of the halakhic arguments based on comments, I don’t know, I’m not sure how he feels about it. But maybe in order to gain consensus, and that’s when you have a paradigm shift, sometimes everybody has to give a little bit, maybe he’d be willing to give a little bit in order to make it more acceptable to a larger group of people.
Geoffrey Stern 31:18
You know, I listened to a podcast this week that celebrated the first Bat Mitzvah of Mordecai Kaplan’s our daughter, which was 100 years ago. And then it noted that 50 years later, was the first woman rabbi to occur. And there’s clearly a connection between the two. And so I think that change takes time. But clearly, what’s happening here is, when you make a change like this, the fact that the discourse is done with so much respect, and the idea that it’s coming within the Orthodox community. One of the podcasters, who talked about the Bat mitzvah says it was fascinating that it was Rabbi Kaplan At those times, they had separate seating in the synagogue, the Reform didn’t have the first bat mitzvah, it’s because they were doing confirmation at age 16. It came out of Orthodox Jewry as much as any of the other strains. And I think that it’s fascinating to me, that in Maharat where they give semicha to women, and they really fulfill that thread from bat mitzvah to smicha, and ordination, that here we have the beginning of the next move, and it’s being done strictly within the sonnet, the tradition of this peer reviewed exploration of the texts. And I just think it’s fascinating. And I think that we all feel privileged to be an observer of how this is, is happening. And I think that just to engage all of the thinkers that you have, at the end of this teshuva, in with a respectful conversation bodes well, I think, for the future of really halachic Judaism, in the biggest, broadest, richest sense of the word, even if it is a little disruptive.
Adam Mintz 33:24
I would agree with that. It’s a perfect topic for today. Shabbat Shalom to everybody enjoy this really this challenging parsha but an amazing parsha. And I just second what Geoffrey said, take a look at the Teshuvah It’s long, it’s complicated, but it’s worth every second. Thank you, Geoffrey, for the topic. Shabbat Shalom to everybody.
Geoffrey Stern 33:46 Shabbat shalom. And I’ll see you all next week.
Link to the Gay Women Responsa: https://www.yeshivatmaharat.org/gay-women-teshuva
Link to Sefaria Notes:
Listen to last year’s Podcast: Scapegoating