Further Examination of the Halakhic Status of Homosexuality

FURTHER EXAMINATION OF THE HALAKHIC
STATUS OF HOMOSEXUALITY:
Female Homosexual Behavior, and Homosexuality as Ones
BY: RABBI MOSHE HALEVI SPERO, M.S.S.W., M.A.


(Proceedings of the Associations of Orthodox Jewish Scientists,Volume 7; Edited by Charles S. Naiman, Ph..D.; Sepher-Hermon Press, Inc., 5743/1983; Copyright 1984 by the Association of Orthodox Jewish Scientists) (Posted on JONAH March 2008)


"If you follow the practices of the Egyptians-for what purpose did I bring you out of Egypt?"
(Be'erot Yizhak, Lev. 18:3)

A: Female Homosexual Behavior

I

     I have discussed elsewhere in some detail the halakhic definition of homosexuality and outlined some specific halakhic problems concerning the general attitude toward and treatment of this psychopathological condition.(1) My observations may be usefully compared and contrasted with the views expressed by other authors on this topic.(2) In the first section of the following two-part. paper, I intend to clarify the halakhic status of female homosexual behavior or lesbianism in specific, a topic which has been given relatively little attention in previous papers.

     The prohibition against male homosexual behavior is contained two explicit biblical. passages, "Thou shall not lie with a man the lying of woman; it is an abomination," (3) and "A man that lies with a man the lying of woman; they have committed an abomination, both shall surely die; their blood is upon them."(4) These passages determine that (1.) homosexuality is a capital offense, punishable by stoning or, in the absence of proper warning, by excommunication (karet), (2) the maximum punishable act is intercourse per anum (and even neshikat evarim.),5 which. (3) confines the applicability of the full biblical infraction as defined by (1) and (2) solely to males.(6) Additionally, homosexual intercourse is subsumed under the class of illicit sexual relations or arayot, making its violation subject to the grave stricture of yehareg ve-al ya'avor; i.e., that in most circumstances one must choose death over any alternative which involves committing homosexual acts.7 Finally, as I suggested in my earlier papers, Halakhah forbids not only the act of homosexual intercourse, but also considers abnormal or deviant the broader homosexual relationship, psychological orientation, and life-style.(8)

     It would seem that female homosexual behavior cannot be included in the aforementioned passages since there can be no genital intercourse in this instance. However, a proscription against such behavior—which I am not yet labeling biblical or rabbinic—is derived from a third biblical passage; "After the deeds of Egypt, where you lived, you shall not do; and after the doings of the land of Canaan, where I bring you, you shall not do; and in their statutes you. shall not walk.."9

     The Torat Kohanim elaborates upon. this passage, emphasizing the last phrase ". . . and in their statutes" (which we shall later see may have practical halakhic ramifications);(10)
If [there only was the first part of the passage] "After the deeds of Egypt „ you shall not do," one might [conclude] that one is not allowed to erect buildings or plant gardens following their fashion. Thus, the Writ states, "and in their statutes you shall not walk," [meaning;] I am only [forbidding] those statutes that they and their forefathers established. What [were these statutes]? A man would marry a man, and a woman would marry a woman, and a woman would marry two men, and a man would marry a woman and her daughter. Therefore [the Writ] states, "and in their statutes you shall not walk,"

     The illicit sexual union between "a woman and a woman" referred to in Torat Kohanim is approximate to what the Talmud and subsequent literature terms nashim ha-mesolelo zo be-zo, or "women who enmesh with each other.(11) In at least two instances, reference is made to the view of R. Huna who opines that nashim ha-mesolelot are ritually unfit to many a priest,(12) The Talmud and later codifiers reject R. Huna's view, arguing that female homosexual behavior is not tanta-mount to zenut or arayot which would render a woman unfit to marry a priest, but rather is "merely immodest behavior" (prizut be-alama) which does not render a woman unfit.(13) At the same time, many codifiers refer to this view in ruling that the behavior of nashim ha-mesolelot is nonetheless forbidden and utilize the passage "After the deeds of Egypt" as the source for this prohibition (even though R. Huna himself did not relate the two).(14)

II

     It remains unclear, however, whether or not "After the deeds of Egypt" imparts a biblical or rabbinic prohibition to female homosexual behavior. Put in other words, is the passage "After the deeds of Egypt" a prooftext for a biblical prohibition, an asmakhta for a rabbinic prohibition, or an "elastic" category which can levy rabbinic issur upon any number of behaviors as determined by the Sages?

     Contemporary scholars expressed varied opinions, couched in eliptic phrases, about the exact halakhic status of lesbianism,

     • Preuss blanketly states that "the Bible does not mention lesbianism at all,"(15) yet subsequently offers the qualification that lesbianism might at least have been under rabbinic sanction "as equivalent to the doings of the Egyptians.”(16) Resenheirn states, "Male homosexuality is declared by the Bible as an 'abomination’ ... The Bible does not mention lesbianism.,. but rabbinical sources alerted against such practice."(17) In a later version of his paper, Rosenheim states, "Lesbianism . . . was later condemned by the rabbis," citing Rambam.(18) Schindler suggests that Halakhah viewed female homosexuality in a less severe light than male homosexuality since a woman cannot violate what Schindler considers the basis of the biblical prohibition—the wasteful spilling of semen. In fact, it is genital intercourse, whether or not hash'hatat zera occurs, which defines homosexuality. Schindler concludes that "since no transgression is done ... [lesbianism] has the status of a minor offense.”(19)
Rabbi Norman Lamm states,

Jewish law treated the female homosexual more leniently than the male. It considered lesbianism as issur, an ordinary religious violation, rather than arayot, a specifically sexual. infraction, regarded much more severely than issur... However, the transgression does warrant disciplinary flagellation. The lees punitive attitude of the Halakhah to the female homosexual than to the male does not reflect any intrinsic judgment of one as opposed to the other, but is rather the result of a halakhic technicality: there is no explicit biblical prohibition against lesbianism, and the act does not entail genital intercourse,
     Yet Rabbi Lamm does not state explicitly whether lesbianism is rabbinically or biblically assur. Most recently, Rabbi J. David Bleich stated,21
Lesbianism is included in the biblical admonition against participation in the deviant sexual practices associated with the Egyptians and Canaanites of antiquity, but it is not a capital offense.
Here again, cautious phraseology.

     Indeed, Rambarn states in his Peirush ha-Mishnayot that nashim ha-mesolelot is assur or forbidden but has neither rabbinic nor biblical punishment.(22) Confusingly, Rambarn likens lesbianism to the preceding discussion in his commentary regarding hoza 'at zera le-vatalah to the degree that both are assur but are not punishable by malkut (biblical flogging).23 However, nashim ha-mesolelot cannot involve hoza’at zera and thus would not appear to be similar to the aforementioned issur. In fact, the Talmud does state that wasteful spilling of semen is punishable by death at the hands of Heaven and other horrendous consequences, 24 but no such punishments are described for lesbianism. Furthermore, the prohibition of hoza'at zera le-vatatah is according to the majority of opinions amply grounded in biblical tradition,(25) whereas the grounding of lesbianism is far less clear.

     In the few halakhic commentaries that discuss nashim ha-mesolelot, one finds divided opinion whether acts of female homosexuality are biblically forbidden.

     The Levush maintains that Rambam views the derivation as fully biblical, yet there is no flogging because the prohibition is implicit in a larger category (lav-she-biklalut).26 R. Yosef Razen also opines that Rambam considers nashim ha-mesolelot an issur Torah, though not an issur of arayot but rather as an aspect of “and in their statutes you shall not walk.(27) In a broad view, R. Barukh Halevi Epstein states that “and in their statutes you shall not walk" specifically includes anything related to immodesty and idolatry,(28) which presumably includes lesbianism and presumably as an issur Torah.

     However, R.J. Falk, in his commentary to the Tur, considers the act of female homosexuality to be "merely rabbinic" and that the biblical prohibition applies only to the last perversity recorded in the Torat Kohanim; viz., one woman marrying two men.(29) R.A. Kalin also states that Rambam's phrase, " .. and there is no flogging because there is no distinct biblical prohibition [for it]," does not mean that lesbianism is actually a lav she'ein bo malkut. Rather, the biblical prohibition extends to the other perverse foreign statutes and not to lesbianism.(30)

     The Kiryat Melekh Rav innovates the view that Rambam only considers as biblically forbidden an institutionalized or socially condoned contractual relationship between two women, since this is precisely what is described in Torat Kohanim.(31) That is, the Torah only forbids behaviors which have become statutes or social norms.(32) Occasional acts of female homosexual behavior, however, are not the object of the biblical ban, although they are rabbinically forbidden, and may merit makkat mardut as well.(33)

     Note also the following, R. Barukh Halevi Epstein, in the reference cited above, cites R. Yosef Caro who states that the specifics of the prohibition against adopting non-Jewish practices (“u-be-hukoteihem") are left to rabbinic determination.(34) Interestingly, according to Rambam, all violations of "u-be-hukoteihem" are punished by malkut (biblical flogging).(35) However, if na-shim ha-mesolelot is considered to devolve from "u’be-h.ukoteihem"—according to R. Epstein, Rozen, and others(36)—then the fact that Rambam does not record an ordained punishment of malkut for it suggests that he did not consider female homosexuality a fully biblical issur, although "it is fitting that [such a person] receive makkat mardut."

     In fact, one notes that Rambam subtly alters the derivation as stated by Torat Kohanim, relating the issur of lesbianism specifically to the phrase "After the deeds of Egypt" rather than to u'be-hukoteihem," Thus, we remain with two possibilities; (1) Rambam considered lesbianism a unique biblical issur but as distinct from “u’be-hukoteihem," or (2) Rambam considered lesbianism a rabbinic elaboration of "u’be-hukoteihem," and offers "After the deeds of Egypt" as an asmakhta.

III

     We have seen that female homosexual behavior is at the very least rabbinically proscribed, and punishable by makkat mardut. And even according to the view that lesbianism is indeed biblically proscribed, there is consensus that it is not included in the severe category of arayot. Certain practical conclusions can be derived from this discussion.

     (1) If female homosexuality is not considered arayot even according to those who consider it biblically forbidden (and is presumably not even an abizraya de-arayot), then certain halakhic problems regarding treatment are lessened. Specifically, treatment procedures need no longer confront the problem of yehareg ve-al ya'avor —other difficulties notwithstanding. This means that the standard halakhic "medical model" can be applied, and that certain prohibitions may be waived in the interests of inducing heterosexual behavior or gender satisfaction in the female homosexual patient; e.g., verbalization of female homosexual fantasies would not necessarily involve the issur of hirhur arayot, and masturbation-based behavioral techniques may become less objectionable.(37) This advantage is certainly enhanced according to the view that sporadic or acute female homosexual behavior is only rabbinically forbidden.

     (2)Since Halakhah cannot technically legitimize a "homosexual marriage" per se, the description in Tarot Kohanirn of a "woman marrying a woman" indicates that Halakhah would still consider any form of explicit or implicit, long-term commitment between two female homosexuals to be a biblical violation,

     (3)Inasmuch as the biblical prohibition subsumes the effort to institutionalize deviant sexual orientations whether or not they are also considered abnormal, it would be forbidden to partake in civil activism which seeks to obtain for homosexuals anything exceeding decriminalization.

     (4)The preceding should clarify the halakhically-oriented therapist's professional opposition to the subtle assimilation into professional values of concepts such as "alternative sexual preference," "100% ambisexuality," and other examples of the trend toward depathologizing homosexuality.(38) From the Torah perspective, such trends run the risk of reinforcing attitudes and eventually policies (e.g., the legitimization of homosexual "marriages" and "families") which are halakhically detestable "statutes,"

     I gated elsewhere that the halakhically-observant mental health professional cannot treat homosexuals who wish to be accepted as homosexuals or to have their sexual life-style "improved" or even condoned.(39) He also cannot refer such individuals to other professionals, Jewish or non-Jewish, who will accept the homosexual on such terms, as this violates the principle of “not placing a stumbling block before the unknowledgeable."(40) I also stated that conferring upon the homosexual the halakhic status of ones or "one compelled" has definite limits, and does not render acceptable or less sinful homosexual acts committed in a nonpsychotic state and in full awareness of the halakhic opinion.

     On the other hand, Halakhah does accept in principle the value of psycho-therapeutically modifying the homosexual toward heterosexuality or lessened homosexual behavior, notwithstanding certain ethical objections to some of the currently utilized techniques. Some of these treatment problems may be significantly lessened, as suggested here, where the status of homosexual behavior is not exactly in the category of arayot or is even merely rabbinically forbidden, and as long as the treatment technique itself does not involve an unwaivable, biblically prohibited activity. It remains important, however, in order for the halakhically-oriented professional to practice ethically with this particular type of psychopathology, that he maintain the Torah perspective in view—and incorporate it as part of his halakhic-professional  values. The fact that the halakhically competent professional maintains specific moral beliefs about homosexual behavior does not preclude professional attitudes of empathy and sensitivity when treating the homosexual, inasmuch as these attitudes have been consistently linked to positive therapeutic outcome.


B: Homosexuality as Ones

I

     The clinical, social, and ethical dilemmas presented by the emergence of homosexuality from its proverbial closet have encouraged analysis of uniquely halakhic perspectives on the phenomenon of homosexuality and its politics.(41) Beyond review of traditional biblical, talmudic, and later rabbinic sources on homosexuality, several halakhic analyses have sought to categorize this sexual orientation in terms of sin, sickness, and the halakhic concept of ones—acts committed in a state of compulsion or duress, In this review, I will reconsider some of the critical problems presented in this literature.

     The central question for many of these writers is whether homosexuality has the status of ones or, in other words, can homosexuality be viewed halakhically as the consequence of "compelling" psychological or psychodynamic variables? A second concern is: Does homosexuality, or that which is to be considered the subject of the halakhic proscription, refer to a psychological state of mind or being or only to discrete acts of homosexual intercourse?(42) Which is to be considered the source or result of ones?

     The assumption underlying these questions is that the condition of ones is in some way a desirable halakhic status for homosexuality to achieve because this would render the homosexual somewhat immune to halakhic ascriptions of "sinfulness" or "immorality" to homosexuality—and the homosexual somewhat less sick or perverse. This putative moral "immunity" or unaccountability follows from the usual interpretation of the halakhic maxim ones rahmanah patrei ("The Merciful One exempts [from punishment] one who is compelled").(43) However, we shall see that homosexuality as a state of being and as an act cannot in fact be rendered less objectionable by virtue of the category of ones, assuming it can even rightfully be considered ones. I believe that these possibilities have been neglected because of inaccurate appreciation of the halakhic principles evoked and due to incomplete understanding of the homosexual condition itself.

     The salient issues which must now be examined more carefully are: (1) Is the category of ones applicable to homosexuality? (2) To what degree is homosexuality a "psychiatric condition" rather than a moral one, and to what degree is it a condition whose significance lies beyond psychiatric or sociological categorization?; (3) What are the implications of any eventual halakhic classification of homosexuality in terms of individual responsibility? These issues are plainly important for developing halakhic policies and attitudes about homosexuality, whether one's interest is purely clinical, scholarly, or a non-professionally motivated search for understanding. In addition to the value of such analysis for non-homosexuals, correct placement of homosexuality along the continuum of individual responsibility will significantly effect the homosexual's search for self-identity and social role.

II

     There is no question that Halakhah designates the act of homosexual intercourse as sinful, as well as though to a lesser degree, female homosexual behaviors. All previous writers have demonstrated this fact, with minor disagreements, through the appropriate biblical and talmudic references.(44)

     Of course, the halakhic sources do not specifically label homosexuality as a "sickness" or "psychological disorder" primarily because these are not the basic legal-moral terms of the halakhic system. However, this technicality of language does not necessarily preclude the possibility that some acts which are labeled "sick" or psychiatrically disordered by some alternative language system may at the same time be deemed morally reprehensible in the halakhic system.

     In other words, having labeled homosexual acts sinful and even abominable (to'evah) according to standard halakhic convention, Halakhah thereby indicates that such acts remain sinful or morally repugnant even if subsequent classification of the condition as "sick," "deviant," or, more correctly, "treatable" is not meant to impart moral judgment according to the alternative diagnostic system.(45) Halakhah may consider certain conditions “morally disordered" in the sense that such conditions merit intervention or modification, be it via medical technique, psychotherapy, or teshuvah. Halakhah may also consider certain behaviors "sick" to the degree that such behaviors represent deviations from halakhically proscribed norms of psychosocial wellbeing. Thus, inasmuch as Halakhah considers heterosexuality psychosocially healthy,  it may, from within its unique perspective, consider homosexuality unhealthy or sick. Homosexuality would be at once sinful inasmuch as it violates halakhic-moral norms, and sick inasmuch as it deviates from halakhic psychosocial norms

On the other hand, there are extenuating circumstances under which certain conditions achieve an additional or subordinating status which Halakhah itself views as an exemption from moral account-ability—such as the status of ones. But the burden of proof lies upon us to determine whether the condition in question is truly one of ones, and whether the concept of ones actually exempts the given condition from halakhic accountability.

III

     Most authors approach the problem at hand by viewing the three categories of ones, sickness, and sin as representing a continuum of individual. responsibility, ranging from complete lack of moral. accountability for acts committed in a true state of ones, through the problematic amalgam of purposive (e.g., functional) and circumstantial, and hence accountable and unaccountable aspects of psychological disease or sickness, to more or less complete moral accountability for acts labeled as sin. In fact, we shall see that these different categories are not discrete, and that the status of ones is not necessarily the terminus of the range of unaccountability.(46)

     Hershel Matt, in his attempt to define homosexuality as ones, states that when forbidden acts are performed in the absence of voluntary choice, or in the absence of other options [by which he means treatment options] the offenders are judged more leniently than otherwise."(47) While a stringent view would be in force for those homosexuals who "could change," Matt speculates that the lenient view should be in force for those homosexuals who "cannot change" or who thus are subjects of ones (anusim). Matt does not actually suggest we adulterate the negative halakhic judgment of wanton or willful homosexual behavior. He does state, on the other hand, that we might convey to those homosexuals who qualify as anusim that this very status "removes from them all burden of blame and guilt—accepting them as they are. It avoids at least some of the negative connotations of “mental illness." It acknowledges that unalterable homosexuality remains theologically unaccountable.”(48)

     In fact, Matt errs, as do others, in heavily basing his interpretation of homosexuality as ones on the assumption that there are no treatment options available for homosexuals, this lack rendering the homosexual akin to ones in that he is "compelled" to remain in his present state. Unfortunately, Matt's review of the relevant psychiatric literature is less than cursory. Successful treatment is actually far more than a "rarity," with different therapeutic modalities reporting different types or levels of change, ranging from the mere elimination of heterosexual anxiety to complete orientation-reversal.(49) Of course, the viable treatment techniques are time-consuming and involve a level of commitment and participation from the patient that is not easy to maintain. Thus, many of the so-called "unsuccessful techniques" or "untreatable" cases of homosexuality are in fact instances of incomplete or inadequate treatment. (That is if every homosexual elected to complete psychoanalytic treatment, we might find different statistics.)

     Precisely who are those homosexuals, considered by Matt to represent the majority, who "cannot" change? Are they in fact homosexuals who bolted treatment when insight became too painful? Were they homosexuals who were misaligned with their particular sychotherapist, or who lost interest in change following several unfortunate experiences with pseudo-therapeutic modalities? Or were they homosexuals who would have sought change had their homosexuality caused them sufficient psychological anguish and conflict, but who do not consider seeking change merely because homosexuality is religiously reprehensible and who would indeed never seek change so long as homosexuality is socially acceptable or religiously pardonable? Undoubtedly, many if not most of Matt's "cannots" would be eliminated from this category by examining more critically the nature of their "compelled homosexuality" and insofar as this status develops from inaccurately perceiving homosexuality as untreatable.

     The remaining problem in Matt's analysis is what he intends by the assertion that the "very status of ones removes [from homosexuals] all burden of blame and guilt." I shall discuss this problem below.

     Matt is not alone in appealing to the category of ones in the hope of lessening the "burden" or the distinctly moral and pathological connotations of homosexuality. Rabbi J. David Bleich also implies that those homosexuals who are truly compelled are anusim and hence would not have to seek treatment, although he admits that these are in the minority.(50)

     Rabbi Bleich states that it is the act, not the homosexual condition, which is the object of the Torah proscription—"The former is an act of free will, the latter is a state of being. (51) Rabbi Bleich is suggesting that homosexual behavior is reprehensible when it is not the result of ones, and that the homosexual condition is not reprehensible because it is not behavior! Now if Rabbi Bleich means to somehow distinguish between active and passive homosexuality, or to argue for a halakhic distinction between so-called latent and manifest homosexuality, he has failed to do so. In fact, I think he introduces a psychologically as well as halakhically inaccurate dichotomy between fantasy and behavior.

     Both Halakhah and psychology subscribe to the belief that fantasy —the stuff of dreams, "passive" homosexuality, or of homosexual "tendencies" inferred from projective testing and so forth—is also behavior. From the psychological viewpoint, fantasy and behavior are synonomous to the degree that each is but a different form of expression of psychodynamic impulses, wishes, or conflicts. It is correct that psychotherapists often attempt to help their patients recognize the important differences between and consequences of their thoughts, wishes and actual behaviors, but they do not assume in a blanket way that fantasies, etc., are any less physically or socially determined than "behavior," or less real products of personality.  Halakhically as well, as I have demonstrated in detail elsewhere,(52) fantasy, the realism of hirhur, is considered a basic tributary of behavior (e.g., ahar kavanat ha-lev ken hen ha-devarim.(53)   In legal matters, of course, mahshavot ha-lev may indeed be bypassed in favor of demonstrable and quantifiable physical behavior, but this does not support a view that fantasy or psychological conditions are not in their own way subject to halakhic accountability. Indeed, hirhur about content of illicit sexual nature (hirhur arayot), such as homosexual fantasies, is considered an "appurtenance of arayot" and is rabbinically if not biblically forbidden in its own right.(54) According to some halakhic authorities, the stringent requirement attendant to the three cardinal sins that one accept death rather than any alternative which requires committing such sins (yehareg ve-al ya'avor) extends even to hirhur arayot.(55)

    These considerations, in addition to others I have examined elsewhere,(56) suggest that homosexuality as a state of being, while not punishable according to the express biblical criterion, is no less subject to halakhic accountability and to possible categorization as sin or sickness. It would also seem incorrect to conclude that Halakhah does not obligate the homosexual to seek modification of his general sexual orientation as long as it. is not expressed behaviorally, This would be further reinforced by Maimonides' ruling that "inappropriate personality traits" de'ot ra’ot” are also objects of teshuvah or any other intervention prerequisite for teshuvah.(57)

     Rabbi Norman Lamm also addresses the problem of homosexuality as ones.(58)  He draws the reader's attention to the fact that the category of ones may not apply in the case of male sexual transgressions since, beyond all considerations of predisposing psychosocial determinants, genital erection is considered a "token of willingness" inasmuch as the psychological. mechanism of erection is based on emotional arousal.(59)  Even those few authorities who would in principle mitigate the culpability of a male forced to commit a sexual act—arguing that in such circumstances the emotional arousal and subsequent physiological mechanism are actually the result of ones—would nonetheless agree that pleasure derived during the commission of the act would increase the level of prohibition and accountability.(60)

     Rabbi Lamm, correctly I believe, thus limits the usefulness of the "homosexuality as ones" equation to evoking "pastoral compassion, psychological understanding, and social sympathy"' in our dealings with homosexuals. In so doing, he accurately recognizes that acts of homosexuality (and, I would add, the condition itself) are tu'evah whether or not they are also ones. Viewed technically, a homosexual act "remains a ma'aseh aveirah, whereas the person who transgresses [in a psychotic state] is considered innocent on the grounds of ones."(61)   In a nonpsychotic state, homosexuality remains an accountable behavior. The important point is that  ones does not lessen the gravity of male sexual transgressions even when the conditions which conduce overall behavior in such instances are themselves considered compelling.

     I mentioned earlier that Matt's assertion that "ones removes...all burden of blame and guilt" from the homosexual is problematic from yet another standpoint, that based on the notion that the fullest meaning of homosexuality transcends "sin," "sickness," or even to’evah.

     On a basic level, viewing homosexuality as ones allows the homosexual to at least be certain of his halakhic status and thereby experience less marginality and anomie. However, we have demonstrated that many of the interpretations of ones that would be offered to the homosexual are inaccurate. Second, there is the danger that this approach will establish the normality of homosexuality for homosexuals. As McIntosh states (and Matt apparently accepts this view), viewing homosexuality as a "deviant role" (i.e., ones) rather than as an "abnormal condition" legitimizes the uniqueness of homosexuality; "it appears to justify the deviant behavior of the homosexual as being appropriate for him as a member of the homosexual category."(62)

     This is also the logic of the perspective expressed in the current Diagnostic Statistical Manual (III) which distinguishes between "ego syntonic homosexuality," where the homosexual is satisfied with his sexual orientation and is therefore not considered pathological, and “ego dystonic homosexuality" where the homosexual experiences conflict over his sexual orientation or related problems and is considered pathological. That is, the “ego dystonic homosexual" is pathological not because he is a homosexual, but rather because he is unhappy that he is a homosexual.(63) By this rather unpersuasive logic, one could also conceive of a whole range of diagnostic categories such as "ego dystonic heterosexuality," "egodystonic color-blindness," "ego dystonic suicidal tendencies," and so forth.. The upshot is that homosexuality, even as ones, would be considered normal as long as it is accepted and enjoyed without guilt by the individual. The homosexuality of an individual would acquire what Huges termed a "master status;" subordinating his other religious obligations to his identity as an ones - mensch.(64)  But this approach defeats Halakhah's goal which is in fact to maintain the deviant and aberrant status of homosexuality, and to prevent its institutionalization in the guise of an "alternative sexual role."

     There is a third problem with homosexuality as ones, Halakhah surely shares in the desire to reduce neurotic self-blame and guilt where the latter stand in the way of productive living. However, anxiety and guilt operate on at least two levels. One must differentiate dynamic conflict—based on psychosexual issues relating to the de-velopment of homosexuality in an individual and as evidence of the incompleteness of the neurotic compromise represented by the homosexual orientation—and religious-spiritual conflict uniquely characteristic of an individual's awareness of the incompatibility between the homosexual preference and the halakhic ideal.  The second type of conflict is, of course, also "dynamic" in the sense that it involves different levels of consciousness and internal disequilibrium, through conflict between halakhic ideals and ego rather than merely between ego and neurotic intrapsychic introjects. Yet it is uniquely a ''religious" conflict in that the parameters of conflict are not merely the result of irrational superego tensions, but rather are characteristic of the primacy of halakhic values for such individuals. There is not prior requirement that such conflict be labeled neurotic in the strictly clinical sense.(65) Such conflict may indicate that the individual's endeavor to distort the relationship between Halakhah and reality has begun to weaken. In this case, guilt and self-blame become halakhically desirable.

IV

     The professional approbrium associated in contemporary times with maintaining baldly moralistic views of individual sexual behavior plays no small role in motivating what I can only view as a "flight" into adjusting the meaning of the term to'evah through the subtle language game of disguising homosexuality as ones. Those who attempt this reclassification have merely revived an argument once utilized by some rabbinic authorities in the effort to reduce the stigma of suicide.(66)  Rabbi Lamm, in fact, appeals to it explicity. The argument, stated in unvarnished form, would be "Homosexuality is, of course, immoral but only when it is a voluntary act. Homosexuality, on the other hand, is causally determined by innumerable psychosocial factors. In view of this, homosexuality cannot be deemed a voluntary act. Hence, most instances of homosexuality are not the type of homosexuality forbidden by the Torah," A similar stance has in fact been taken by McNeill and by Pittenger who argue that the homosexual condition itself is given and irreversible, and hence in itself is not immoral, since an activity is immoral only if it is possible to have acted morally. If it were possible to not be homosexual altogether, then this would be the moral choice.(67)

    In the case of suicide, however, the argument that self-inflicted death is the result of a disturbed state of mind, and hence ones, is only used after the fact to lessen stigma and perhaps the level of transgression. Nothing in this application particularly contradicts the attempt to retroactively confer the determinate status of ones upon dubious causal factors. In its application to the phenomenon of homosexuality, on the other hand, the ones argument is being wrongly utilized before and during the fact to lessen transgression and to alter an entire halakhic attitude toward sexuality, ignoring the fact that the category of ones does not apply to such acts.  In fact, those homosexuals who might be willing to exercise the halakhically correct moral choice and opt for treatment of their condition might now bypass this option if they were convinced. that accepting their "role" as anusim is an equally valid moral option!

     I would summarize at this point the various arguments against a conception of homosexuality as ones: (1) Homosexuality is rarely if ever the result of psychiatrically or ethically significant compulsion; (2)All behavior and sexual orientation is to a large degree physically and socially determined, in the psychoanalytic sense of the term (i.e., has specifiable causes and meanings) but is not thereby compelled; (3)If (2) is false, then even heterosexuality is ones which runs against common sense; (4) Even if homosexuality could be classified generally as ones subsequent sexual acts or fantasies continue to be reprehensible inasmuch as sexual pleasure mitigates the quality of ones, especially where such pleasure is viewed as "ego syntonic" with the "role" of homosexuality; (5) Even if homosexuality is difficult to modify, it does not become ones in the full sense of the term. I will elaborate upon point (5) below.

V

     If homosexuality is an entity defined by psychiatric criteria and terms and is a condition which one diagnoses with an eye toward treatment or modification, then one has classified homosexuality as disorder, and homosexuals as disordered. If homosexuality is not a condition in the above sense, and is not a diagnosable entity, it may however remain sociologically or statistically deviant. "Deviance" was the preferred category for homosexuality—prior to its recent beatification—for those who sought to reject theological and moral connotations and who eventually accepted the current American Psychiatric Association's view that homosexuality per se is not a pathological entity. Deviance indicates only that homosexuality is statistically atypical, but does not imply that homosexuality ought to be modified.

     Indeed, some professionals have rejected the "disorder" categorization precisely because of the implication that individuals thus categorized ought to be treated..(68)  This, they suppose, would violate the rights of those homosexuals who do not wish to be treated and certainly of those who do not wish to view their sexual orientation as abnormal. But Halakhah does unabashedly label homosexuality perverse and morally repugnant. Even if Halakhah would not require psychotherapeutic intervention for homosexuality—that is, assuming that it did not demand an equation between to'evah and "psychiatric disorder"— Halakhah still seems to require the spiritual or moral modification of homosexual. behavior. Thus, our halakhic examination must also confront the ethical problem of whether a homosexual ought to be com¬pelled to seek treatment.

     With regard to the "diagnosis compels treatment" argument, the voluntarists may have over-reacted to the moral force inherent in psychiatric diagnosis. I think it is reasonable to argue that we ought to offer treatment opportunities to say, cancer patients, but no one has seriously argued that such persons ought to be hauled-off to treatment centers against their wishes, and arguing from the other direction, even if the suitably trained professional is himself morally obligated to treat diagnosed patients, he generally cannot discharge this obligation without the voluntary consent of the patient. Similarly, those in the psychological-psychiatric community who consider homosexuality a treatable condition do not conclude that homosexuals be treated against their will.

     From the halakhic standpoint, however, there is a sense in which having labeled homosexuality as sinful, perverse, and as to’evah it could be subjected to compulsory interventive measures. That is, the Jewish community or individual mental health professional qua agent of bet din may be required to invoke the halalkhic concept of kofin oto, of "compelling" one (or one's reasonable ego) to remain obedient to Jewish law.(69) While generally invoked in specific applications, such as compelling the granting of a divorce or the fulfillment of vows, the "kofin model" can in fact be applied to any mizvah.(70) On one hand, Rabbis Matt, Bleich, and Lamm have correctly noted that since Jewish courts can no longer enforce the capital punishment for homosexuality they may not need to involve themselves with active persecution of homosexuals. However, further analysis is needed regarding the teaching role of Jewish leadership. From the standpoint of the teaching role, there may still be two obligations which devolve from the “kofin model" incumbent upon the Jewish community: (1) to remove "stumbling blocks" from the path of the unknowledgeable—which includes disseminating halakhically and psychologically valid views on homosexuality;(71) and (2) to evoke the "kofin model" to actively encourage appropriate interventions and preventative policies and attitudes.

VI

     Finally, l would like to explore another approach to why homosexuality cannot be considered fully ones simply because it is a psychopathological condition.

     Halakhah generally views the sick person or ho/eh as an ones in the sense that (I) he is actually unable to perform incumbent mizvot, or (2) he is sometimes compelled to employ methods of cure that are ordinarily forbidden (e.g., to eat traef). In fact, since the holeh always desires to be cured, it is difficult to state that he is wholly compelled to accept a heretofore forbidden treatment as if there were no element of voluntary will or self-interest involved. Thus, in situations of sickness, the actual principle which permits utilizing forbidden substances or performing forbidden actions is not really the mitigating status of ones, but rather the Divine decree va-hai ba-hem, "And you shall live through them," 72

     However, in the case of curative methods which involve violation of the three cardinal sins, the above decree (va-hai ba-hem,) not only does not apply; the opposite is expected. Thus, if one's illness were to somehow take the form of violating one of the three cardinal sins (such as the case of the love-sick. individual recorded in the Talmud, Sanhedrin 75a), or if one derived therapeutic effects through violation of one of these three sins, these states would not be viewed as ones, even though Halakhah recognizes that the sick person has limited choice.(73)  Finally, the factor of ones does not necessarily impart the status of lav bar hiyuva or complete disobligation from mizvah observance, such as is the case in conditions of shtut, drunkenness, or some types of life-threatening illness.(74) Thus, the homosexual, even as ones, is no less obligated to have children, to seek treatment for his condition, or to fulfill any other mizvah obligation.

VII

     Should the interpretation of to’evah rest upon contemporary nosologic categories or sociological norms? The answer partly depends on how we understand the function of the term to'evah. As a clinical term—rewriting Lev, 18:22:—“and behold it is a pathology"—the value of to'evah would be to indicate pathological status despite contemporary psychiatric notions. Further, it would imply the need for intervention, irrespective of the regnant political views. As a descriptive term, or as an emotive emphasis appended to a given sociological norm—" . . . and behold it is sickening"—the fate of to'evah would perhaps seem more closely tied to changing norms and attitudes. That is, pathological conditions can be considered pathological whether or not I am aware of their pathological nature, but if a condition does not sicken me, it just does not—unless I choose to force myself to develop an attitude of disgust toward the condition. And Halakhah, in fact, is intent on fostering certain attitudes in us. Nonetheless, my understanding of the halakhic literature convinces me that the term to'evah is more akin to a clinical judgment than a descriptive statement—to’evah: to’eh atah bah, "you err through it."(75) As a clinical term, the proscriptive and prescriptive values of to'evah are unaffected by contemporary views since to'evah stems from a unique psychological perspective.

     Finally, to'evah may also be an existential statement which transcends the category of individual pathology or the rules and norms shared between the deviant and nondeviants in a given social system. Homosexuality, as a sexual masquerade, indicates an erroneous or inauthentic state of existence (“. . . and behold [homosexuality] is bad faith."). In this last sense, homosexuality is not merely pathology; it an unheroic state of being. Judaism recognizes that the problem of the deviance of homosexuality resides not solely in a pathology within the individual or society, but also in the complex relationship which exists between the individual who demonstrates behavior labeled as to'evah and the One who labels such behavior as to’evah. From the halakhic perspective, then, homosexuality is to’evah precisely because it represents the acceptance of a neurotic resolution of conflict with the oedipal father in a way which will eventually distort one's relation to the heavenly Father.