Saturday, August 26, 2017

An Open Letter to Rabbi Shlomo Riskin and Rabbi Riskin's Reply

[Two weeks ago, I wrote this letter to Rabbi Shlomo Riskin, in the wake of an interview that he gave to Makor Rishon. At His request, I suspended the letter, pending his reply. I received the latter on Thursday and am publishing both together. Though I am glad to see that he conceded a number of points, I stand by the key points of my original critique and its implicaations. I am preparing a detailed rejoinder.]

                                                                                                   י"ט מנחם אב תשע"ז לפ"ק

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,

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