י"ט מנחם אב תשע"ז לפ"ק
11.8.2017
Dear
Rabbi Riskin,
טרם אענה אני
שוגג.
After long deliberations, it is with
a mixture of sincere regret, deep pain and (I admit) a measure of shock that I
feel compelled to write to you regarding your remarks concerning Homosexuality
that appeared in last week’s Maqor Rishon (and subsequently in the Kippa
news site). If the published interview reflects your actual words, and I truly
hope that they do not, then your statement represents an egregious distortion of the Torah; one which is fraught with
dangerous implications for Torah, for the Orthodox and broader Community, and
for your own many salutary communal activities.
There are two points (inter alia)
that you mention, with which I would like to take issue here.
First, you acknowledge (and express
concern for) the extremely difficult situation faced by Homosexuals who wish to
lead a life of Torah and Mitzvot, while coping with their sexual impulses. The
latter consideration leads you to apply to them the principle of compulsion (אונס), as a method of excluding them from the
Torah’s prohibition against homosexual activity, the severity of which is
underscored by the dire punishment attached thereto.
However, your alleged use of the
principle אונס רחמנא פטריה is
both incorrect and misleading. Coercion, which is almost always external, does
not provide license to perform a prohibited action. All it does is to exempt
the performer of the deed from punishment. It remains a grave sin, with all that that
implies. An act performed under compulsion, furthermore, constitutes an act of
volition. As our revered teacher, Rav Soloveitchik זצ"ל
put it (in the context of the sugya, ,תליוהו וזבין BT Baba Bathra 47b),
an act performed under
coercion remains an action of volition on the part of the actor(מעשה דעת).
Coercion, however, can be invoked to either revoke a commercial transaction (מסירת מודעא) or to avoid punishment (אונס רחמנא פטריה). Coercion is totally irrelevant to the
categorization of an act as sinful or not, in this case of גילוי עריות.
As I noted when Halakha invokes
coercion it almost always refers to external coercion. Failure in the struggle
against one’s drives and impulses is not an exculpating factor, as excruciating as that
struggle might be. To say otherwise is to deny freedom of will and to undermine
the basic structure of the Torah’s moral system—especially in the area of
sexual conduct.
This leads to the second point that
is attributed to you in the article, namely the proposed distinction between
the present regnant understanding of Homosexuality, wherein the individual has
no choice in determining their sexual preferences, and the voluntary,
self-indulgent and licentious social norms that you attribute to Greco-Roman
society. Again, according to the report, the Torah only intended to prohibit
the latter, not the former.
This contention is so deeply
problematic that I hardly know where to begin to address it. What has Fifth
Century Athens to do with a Torah that we firmly believe was given some 800 years earlier?
Even if the Torah was referring was to contemporary Egyptian, Mesopotamian, or Canaanite
mores, we have absolutely no clear idea what the circumstances that obtained
there. Even if we did, what difference would that make? There is absolutely no
basis in our tradition for such a distinction.
The serious implications of this argument do not end there. Your allegedly proposed contention is predicated upon an historicist-reductionist argument that could
potentially undermine Halakha entirely. It is against precisely this type of
approach that Rav Soloveitchik זצ"ל
so emphatically inveighed. Needless to say, we have both seen its effects in
the Gotterdammerung of non-Orthodox American Judaism. [You may, of
course, correctly object that Halakha is not static. However, measuring such
change is a very nuanced and delicate matter. And such change only comes as an
outgrowth of the tools with which the Oral Law provides us, not as a result of
subordinating it to Academic
or Cultural conjecture.]
I must admit when I read the
interview my first thought was not even for the long-term, corrosive implications of the
position therein expounded. My first thought was for the future of your most
blessed and important initiative in recent years, Giyyur ka-Halakha. I
greatly admire the fortitude with which you have essayed to finally resolve the
status of the non-halakhic Jews in Israel. You are not only performing a Hessed
for them. You are effectively preventing a schism among the Jews of the Land of
Israel, itself a matter of both spiritual and physical security. Yet, I cannot
help but sense that adopting the stance expressed in your name in the press, will
have a profoundly negative impact upon your important efforts to have these converts
recognized, with all that implies.
This has not been easy for me to
write. We have known each other for many years. I have the deepest respect and
affection for you, as an older colleague, a leader of our community and a
friend. My comments here are offered with humility and sincere concern (hence
my opening line, drawn from Ramban’s letter to the Tosafists of France).
הכותב וחותם
בענווה ובדמע,
Jeffrey
Rabbi Riskin's Reply:
Rabbi Riskin's Reply:
23 August 2017
Dear
Rabbi Woolf,
I
must admit to having been taken aback by your letter, which did not take into
account the actual words of my interview, such that you grossly misrepresented
the position which I espouse.
You
take issue with my application of אונס רחמנא פטריה regarding the homosexual, which you believe to be
"incorrect and misleading," since, as you wrote, "Coercion,
which is almost always external, does not provide license to perform a
prohibited action. All it does is to exempt the performer of the deed from
punishment. It remains a sin, with all that that implies."
Well,
it seems that you agree with me, as that is precisely my position. In fact, I
began my response in Makor Rishon to the question regarding the halakhic
attitude towards homosexuals with the words, "We cannot permit what the
Torah prohibits," stated in a clear and unequivocal fashion, meaning that
the act remains a transgression, and one who carries out the act is a transgressor.
I
then went on to explain that Annus Rahmana Patrei – the "compelled"
individual is freed from the punishments (chiyuvim) ordinarily emanating from
having committed the act.
The
act, however, remains forbidden. Neither I nor anyone else granted
"license" to commit the act initially. I do however believe that the
transgressor is "patrei," that in the usual words of our Sages, he is
"patur aval asur." Despite the fact that the act is forbidden, he is
freed from earthly punishment.
Moreover,
in order to buttress the fact that I was not suggesting a post-facto freeing
from punishment of every type of homosexual – such as one who was seeking
sexual variety, or one attempting to avoid the complications of procreation (as
in the case of the Greek philosophers, which I brought as an example) – I
suggested a possible interpretation of the Biblical text based upon the
Talmudic suggestion of to'evah not as an abomination with dire consequences,
but rather as 'to'eh atah bah' -- you are making a mistake in this homosexual
decision, (B.T. Nedarim 51b). And since I subscribe to the scientific opinion
that there are two types of homosexuals – those who are incapable of an
intimate relationship with a woman and have no sexual option other than with a
male or celibacy, and those who voluntarily choose homosexuality – perhaps it
is only the latter type of homosexual whom the Torah is punishing so strictly,
since I believe that Annus Rachmana Patrei applies only to the former.
This
is merely a suggestion which everyone is free to reject, but I hardly think
that leaving the punishment to God in this instance could "potentially
undermine Halakha entirely," nor do I think that it so potentially
damaging as to be opening a door to the kind of "Gotterdammerung" of
non-Orthodox American Judaism, as you seem to think. I leave it to God to make
the ultimate decision as to how to punish the transgressor.
Moreover,
regarding your statement, "when Halakha invokes coercion it almost always
refers to external coercion," this is correct, and in general I certainly
agree. But, as you know, there are some cases within the Rishonim in which even
if it’s a case of "yitzro tokfo" the rabbis understood the struggle.
The individual himself is seen as a sinner, but with mitigating circumstances.
For
example, the Baalei Tosafot (B.T. Gittin 41b s.v.) "They forced the
master (כופין את רבו)," where it
is maintained that "men who were cavorting sexually with women forbidden
to them, even though they are sinners, because the women were running after
them and seducing them to immorality, they are considered as annusim."
The
Baalei Tosafot in B.T. Sanhedrin 26b go even one step further; one suspected of
sexual immorality is permitted to give testimony "because his evil
instinct has overtaken him."
It
is important to note that Rav Avraham Yitzchak Hacohen Kook uses these sources
in a path-breaking fashion. In a letter to a distraught father who is thinking
of disowning his son who has "left the derekh," the renowned
first Chief Rabbi of Israel implores the father to be understanding of the son
and to treat him with love, because such youth are not be seen as willful
sinners. He writes, "Those children who have departed from the path of
Torah because of the turbulent 'current of the times' (post-Emancipation), I
say to you with a full heart, that just like Tosafot in Sanhedrin taught that
those who succumbed to sexual immorality because their evil impulse overtook
them are to be considered as annusim; it was the Gentile maidservant who
enticed them, and they too may be considered as acting under compulsion,
affected as they were by that shameful maidservant known as the 'current of the
times' (Letters of Rav Avraham Yitzchak HaKohen, Epistle 138).
Certainly,
it must be clearly understood that no one would suspect Rav Kook of permitting
an individual to succumb to a strong sexual urge ab anitio or even to
whitewash such actions after the fact. The act is still sinful and he is still
a sinner – but with mitigating circumstances. Rav Kook is merely utilizing the
Baaalei Hatosafot to teach us not to be judgmental – especially when dealing
with a victimless crime. And I also believe that Rav Kook was encouraging us to
hold out loving teshuva even to those sinners who grappled with their
evil instincts and lost the fight.
In
the case of the homosexual who is incapable of intimate relations with a woman,
I would hope that classifying him as an annus would be much easier to
understand. I would like to offer a concluding source from the Tosefta Avot
D'Rabi Natan, Chapter 16 Law 4, in the name of Rabi Shimon Bar Yochai, who says
that no Israelite will ever see the face of Gehannom. He brings the
example of a landowner who rented out portions of land to tenant farmers who
paid their rent to the owner from the fruit, grain and vegetables that grew on
the leased land. The landlord agreed with one renter that he would receive ten
"kur" of grain in exchange for the parcel of land he gave him – land
which was uncultivated and infertile. At the end of the season, the individual
came with just one "kur" of grain. When the landowner complained that
this violated their agreement, the tenant farmer protested that the landlord
knew the poor quality of land which he had rented. "I worked as hard as I
could and this was all I could give you," the renter said.
Rav
Shimon bar Yochai said, "In the future, every Israelite can say to the
Holy One Blessed be He, Master of the Universe, 'You know the evil instinct
that You placed within us to entice us, You also know that we did the best we
could do.'"
It
seems to me that this is what the homosexual will be able to say to God when he
stands in front of the Throne of Glory. "You know how You created me. I
tried as hard as I could, but this was best that I could do."
I
believe this is what the Bible means when it refers to God as a loving and
forgiving God who is a נשא עוון. Who takes our
sins upon himself…
And
in any case, I would maintain that it must be God who is the only judge.
B'virkat
Kohen B'Ahava,
Shlomo
Riskin
