Homosexuality, Choice, and Jewish Law
If homosexuality is not chosen, then there is precedent in Jewish law for condoning it.
The combination of these sources of evidence, it seems to me, necessitates a rethinking and recasting of the law, for if anything is clear about the tradition, it is that it assumed that gay behavior is a matter of choice. Otherwise, a commandment forbidding it would logically make no sense--any more than would a commandment that prohibited breathing for any but the shortest periods of time.
Now of course it is logically possible to say to gays and lesbians, as some rabbis writing on the subject have said, that if they cannot change their homosexual orientation, they should remain celibate all their lives. That result, however, is downright cruel. Moreover, I find such a position theologically untenable. I, for one, cannot believe that the God who created us all produced a certain percentage of us to have sexual drives that cannot be legally expressed under any circumstances. That is simply mind-boggling--and, frankly, un-Jewish. Jewish sources see human beings as having conflicting urges that can be controlled and directed by obedience to the wise laws of the Torah; it is Christian to see human beings as endowed with urges that should ideally be forever suppressed. To hold that God created homosexuals to be sexually frustrated all their lives makes of God a cruel playwright and director in this drama we call life, and our tradition knew better. It called God not only merciful but good. God's law, then, must surely be interpreted to take those root beliefs of our tradition into account. Jewish theology and law are not two disparate realms; here, as always, they must be interpreted to reflect each other.
Furthermore, it seems to me that to ask gays and lesbians to remain celibate all their lives is not halakhically required. If gays and lesbians are right in asserting that they have no choice in being homosexual--and, given the widespread discrimination in our society against them, I have no reason to doubt them in this claim, and indeed every reason to believe them--then they are as forced to be gay as straights are forced to be straight. That is, gay men can no more extirpate their sexual or emotional attractions to other men and cultivate sexual and emotional attractions of a romantic sort toward women than straight men can expunge their sexual or emotional attractions to women and redirect them toward men--and, of course, the same thing, mutatis mutandis, is true for lesbian and straight women. We are all equally "forced" (anoosim) in our sexual orientations.
What are the legal consequences if one is compelled to violate the law? Normally, Jewish law maintains that the person is exempted from any punishment even though the act itself remains forbidden (patur aval assur) (Babylonian Talmud, Bava Kamma, 28b).Thus, if at some future time this person or any other adult Jew engages in the act without being compelled to do so, he or she would be totally liable at law for the infraction.
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