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18. Laws and Judgments as a “Bridge to a Better World”: Parashat Mishpatim (Exodus 21:1–24:18)
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98 eighteen Laws and Judgments as a “Bridge to a Better World” Parashat Mishpatim (Exodus 21:1–24:18) David Ellenson In Judaism, as in every religion, teachings collide with one another. Yet it would seem that the Jewish attitude toward homosexuality, on the basis of two passages found in Leviticus as well as later Jewish exegesis on these passages, is unequivocally negative. The first passage, Leviticus 18:22, states, “Do not lie with a male as one lies with a woman—it is an abomination,” and the second, contained in Leviticus 20:13, asserts, “If a man lies with a male as one lies with a woman, the two of them have done an abhorrent thing. They shall be put to death.” The simple meaning of these texts appears quite clear. Rabbi Tzvi Weinreb, executive vice president of the Orthodox Union, built on these Levitical statements in an op-ed, “Orthodox Response to Same-Sex Marriage,” in the New York Jewish Week (March 26, 2004), and has summarized the position of traditional Judaism on homosexual behavior as “clear and unambiguous, terse and absolute. Homosexual behavior between males or between females is absolutely forbidden by Jewish law, beginning with the biblical imperative, alluded to numerous times in the Talmud and codified in the Shulchan Aruch.” Indeed, such behavior, “an act characterized as an ‘abomination ,’ is prima facie disgusting,” maintains Rabbi Norman Lamm, former president of Yeshiva University, in his article “Judaism and the Modern Attitude to Homosexuality ,” in the 1974 Encyclopaedia Judaica Yearbook. As the famed legal philosopher Ronald Dworkin explains in his Philosophy of Law, in a chapter entitled “Is Law a System of Rules?” “Rules are applicable in an ‘all or nothing’ fashion. If the facts a rule stipulates are given, then the rule is valid, in which case the answer it supplies must be accepted.” The Biblical “rules” expressed in these Levitical passages that prohibit male-male sexual relations seem clear cut and negative and the consequences attached to the rules so seemingly absolutely condemnatory of homosexual relations that the positions advanced by Rabbi Weinraub and Rabbi Lamm appear incontrovertible. Nevertheless, “the plain meaning” of such Biblical statutes and the attitudes that flow from them have not gone unchallenged on either religious or moral grounds. One way in which such challenges have taken place is through engagement in reinterpretation of these passages. For example, scholars such as Rabbi Steve Greenberg and Rabbi Bradley Artson have provided alternative readings of these texts. Rabbi Greenberg, an Orthodox rabbi, in his Wrestling with God and Men: Homosexuality in the Jewish Tradition, Parashat Mishpatim 99 contends that Leviticus 18:22, “Do not lie with a male as one lies with a woman—it is an abomination,” should be understood as “And [either a female or] a male you shall not sexually penetrate to humiliate—it is abhorrent.” As Rabbi Greenberg reads Leviticus, the verses in question are not about anatomy. Rather, they prohibit exploitative sexual relations and demand that sexual partners treat one another with respect. In another effort to reinterpret these texts, Rabbi Artson, director of the Conservative Movement’s Ziegler School of Rabbinic Studies, in a responsum he authored, contextualizes the Levitical prohibitions. He argues that they must be viewed against an ancient Near Eastern background in which same-sex male relations were part of the idolatrous practices of pagan religious cults. The proscriptions in Leviticus are primarily part of a fundamental Biblical polemic against idolatry, not homosexual acts per se. Both these readings—and others not cited—possess the virtue of approaching the Levitical texts in such a way that they can no longer be viewed as blanket condemnations of all homosexual relations. These efforts at reinterpretation can be applauded because they seek new meanings in these ancient texts, meanings that empty these passages of a contemporary justification for discrimination and violence directed against homosexuals. Yet, as laudatory as these attempts are, such examples of reinterpretation may not be sufficiently satisfactory. Although Rabbi Greenberg and Rabbi Artson object to the consequences that flow from Leviticus 18:22 and Leviticus 20:13 and therefore offer alternative readings so that new outcomes can flow from the texts, the harsh precision and the overt homophobia of the Levitical text seems so palpable that it is difficult to feel sanguine about reinterpretation as a method to obviate the traditional understandings and implications of these texts. Catholic scholar Elizabeth Schussler-Fiorenza has suggested a more methodologically radical theological solution in her powerful book...