Conservative Jewish Legal Decision Makingand the Question of Gay and Lesbian Jews

by Michael Pitkowsky

In December, 2006, the Committee on Jewish Law and Standards(CJLS) of the Conservative movement in Judaism approved a rabbinic

responsum

which “effectively normalizes the status of gay and lesbianJews in the Jewish community.” This decision culminated close to fifteenyears of discussion and deliberation on the status of gay and lesbian Jewswithin Conservative Judaism. It was also within this time period thatnumerous rabbis within Conservative Judaism began to discuss the roleof legal theory in the Jewish legal decision-making process. This paperwill examine four different responsa and articles that were written,addressing both the implicit and explicit influences of legal theory onthem.I want to begin with a short introduction to Conservative Judaism.The origins of the Conservative Movement can be found in the numerous19th century attempts to navigate between traditional Jewish life andmodernity. One of these responses, which can be seen as a predecessorto the Conservative Movement, attempted to find a middle road betweenan orthodox movement which was

seenastoorigid,bothrituallyandtheologically,andthatrejectedthehistoricalnatureofJudaismwhichwas

beinguncoveredthankstothemoderncriticalstudyofJudaism,

Wissenschaft des Judentums

,andareformmovementthatwasthoughttohave gone too far, rejecting too much traditional Jewish practise and ritual.Thismiddleroad,whichhaddifferentnames,dependingonwhichcountryonewasin,pledgedfidelitytoJewishlaw(halakhah)anditsinstitutions.InGermanyitsleaderwasstronglyinfluencedbytheschoolofHistoricalJurisprudence,butbyandlarge,therewasastrongnon-ideologicalnaturetoConservativeJewishlegalthinking.Therewerestatementsofsupportmadefor"traditionandchange,""theflexiblenatureofJewishlaw,"etc.,butveryfewsystematicattemptstoelaboratewhatrolethesevaluesweretohavewithinareligiouslegalsystem.Thisideologicalvacuumofsortshascontinuedtosomeextenttothisday,andit should serve as the background for our discussion.ThefirstresponsethatIwilldiscussisthatofRabbiBradArtson.IthinkthatArtson'sreponseillustratestheuse,oraccordingtosome,themisuse,ofhistorywithinConservativelegaldiscourse.Artson'sargumentcanbesummedupas"Therabbisofantiquitydidnotknowwhatamonogamoushomosexualrelationshipwas,soanytimethattheyspokeaboutprohibitedhomosexualrelationshipstheywerenottalkingaboutthehomosexualrelationshipsthatwearefamiliarwithtoday."IwanttopointoutthatmostofthediscussionsthatIexaminedwerefocusedonhomosexuality,sincefromthestandpointofJewishlaw,homosexualityisamore severe prohibition than lesbianism.

Artson'semphasisonhistoryandthemodernsciencescanbeseenfrom the following selections.

Brad Artson

(1993)1.“Halakhah generally utilizes a method of reading the Torah andrabbinic sources as a way of developing applications of old rulings to newcircumstances, or to generate new rulings when no established precedentexists. This process of legal development relies frequently on theevolution of knowledge, technology, and moral standards.”According to Artson, modern methods of research have shown us that thehomosexuality that was prohibited by traditional Jewish law is not thehomosexual relationships that we are familiar with today.2.“Committed, permanent, exclusive homosexual relationships betweenequals were unknown until the modern era, and therefore could not havebeen explicity prohibited by earlier Jewish law.”3.“In every way, the examples of antiquity-as correctly condemned bythese rabbinic sources-fail to address the nature of homosexualrelationships made possible by modernity.”Artson's methodology reﬂects a commonly used legal hermeneutic found inTalmudic and post-Talmudic literature, that is, the social and historicalcontextualization of a prohibition which will now allow a certain act to bepermitted. If the homosexuality that was prohibited in the past is not thetype of sexual and emotional relationship that is now under discussion,then we should not feel bound by any previously accepted prohibition.The authenticity coupled with the potential weaknesses of Artson's