Talmud Arachin, Rabbi Gordon Tucker and Pride Shabbat

Rabbi Philip Weintraub
Congregation B’nai Israel
June 22, 2019
Parshat Behalotecha

As a student at Brandeis University, I wrote a thesis on Conservative Judaism and Jewish law. Analyzing the driving tshuvah, the process leading up to the ordination of women as rabbis (and their ultimate normalization in Conservative Jewish law), I argued that Conservative Judaism would soon embrace LGBTQ Jews and permit rabbis to perform same-sex weddings. Entering the Jewish Theological Seminary, I discovered a community in turmoil. Students and faculty were fomenting change NOW; some others were more process oriented and some others could not imagine how these issues could be resolved within an halachic framework. Thirteen years later, we have come a long way. JTS and the Conservative movement have welcomed LGBTQ rabbis throughout the country, synagogues have significantly improved their welcoming of all Jews, regardless of sexual orientation. There is still a long way to go to ensure that it is not just inclusion or welcoming but making sure that every person knows that they are not less than, not different, but rather ARE integral to every Jewish community. In the Tampa Bay Times this week I said I support all people BECAUSE of my faith, not despite it.

Returning to 2005, in the months leading up to the CJLS meetings on the subject, we were privileged to hear from faculty, rabbis, and members of the CJLS on the processes, methodologies, and ideas on how to authentically, halachically accept people for who they were. After decades of struggle, LGBTQ students were admitted to the rabbinical school--and Rabbi Daniel Nevins was appointed as dean of the rabbinical school--based on his tshuva, rabbinic responsa, with Rabbis Reisner and Dorff. Using the halachic principle of kvod habriut, respect for Gd’s creation, they argued for the full inclusion of gays and lesbians in Jewish life. They led to the creation of commitment ceremonies, with one caveat--they could find no way around a prohibition of a certain sexual practice between men. The Dorff Nevins Reisner tshuvah was a tremendous step forward for inclusion in the Conservative Jewish world, yet Rabbi Tucker felt strongly that it did not go far enough. He had argued for a more inclusive view from the start, advocating not just for civil unions but for halachic marriages, without any limitation of sexual expression. Through some procedural moves, his paper was not officially accepted, although it did seem to receive the requisite number of votes to be an “official” position.

In December of 2006, Rabbi Gordon Tucker, the now emeritus rabbi of Temple Israel Center in White Plains and a long-standing member of the Committee of Jewish Law and Standards submitted a powerful dissent to the rulings of the CJLS about homosexuality. In his eloquently argued 31 page paper, he articulates a more progressive view of Jewish law. His view embraces the traditional methods and legal positivism, but recognizes that certain challenges require a more aggressive methodology. Arguing that sometimes we need to move beyond a single halachic methodology, he cites Abraham Joshua Heschel’s theological masterwork, Torah MinHashamayim:

Most Sages have made the Halakhah primary and life secondary to it. As for one who says that a certain decree or another cannot be lived with, they coerce him until he says “I am willing”. [They say:] “The Halakhah was not given to be marked up and evaluated. It is absolutely unique. All is contained in it, including its own foundations and boundaries. It is above all critique. And of what is beyond you, you may not ask.”

I object to the provinciality of thought, and to the constriction of mind in all of this. There is disregard of the problems that bubble up to the surface each day, of the spiritual struggles and mental anguish of those of our generation who are stumbling. The laws of marriage [אישות [are surely important. But are the laws governing human personality [אישיות [devoid of value?

Several great Sages in Israel did not hesitate to demand justice of the Unique One of the Universe. And yet, in our generation, criticism of the halakhists is prohibited even in the minutest measure!

All paths should be presumed to carry danger. There is no path forward that is without crookedness or ambushes. Some say: “What do I need this trouble for? I will watch my step and not sin, and I will have saved my soul.” But the Sages have expounded: ‘and to him who blazes a path I will show the salvation of God’ (Psalm 50:23) – “This refers to those who light lamps for the multitude.”
(Heschel, Abraham Joshua, הדורות של באספקלריא השמים מן תורה ,vol. III, Jerusalem: Jewish Theological Seminary, 1990, pp. 102-103; English in Heavenly Torah (trans. Gordon Tucker), New York: Continuum, 2005, pp. 717-719. (Tucker, 30)) 

Rabbi Heschel lived through a time of tremendous change in the secular and Jewish worlds. His scholarship and poetry remind us of the powerful connection between Gd and our souls. In Rabbi Tucker’s selection, we see that scholars and rabbis must see the souls of their community members. They cannot blind themselves to the truest issues in front of them. They demand courageous action, and not only incremental progress.

Looking at the narrative of the ben sorer umoreh, the rebellious son, Rabbi Tucker argued for a re-thinking of the prohibitions entirely. The Talmud taught that there was NEVER a rebellious son who was stoned. Just as the command of an “eye for an eye” was never to be taken literally, we should stop taking literally two verses in Leviticus. Instead, we should see them as a gift to expound upon. He reminds us of the Talmud answer of the purpose of the discussion of the rebellious son:

Why was it in the Torah, then? “שכר וקבל דרוש .“Because the enterprise of expounding it would itself be rewarding. It is a safe suspicion that the Talmudic authors did not share the contemporary Conservative Movement’s theology of revelation. But still, those words speak to us. However it was that Leviticus 18:22 and 20:13 got into the Torah, expounding those verses, and holding them up to the realities and moral conundra that history and experience have taught us about, can be rewarding. Even if they are, in the end, not destined to embody enduring and enforceable law. (Tucker, 7)

Rabbi Tucker looks at different halachic methodologies to determine the best way to address the seemingly clear Torah prohibitions against the lived experience of LGBTQ individuals. Stepping back from the sources for a moment, there is a challenge to the humanity of people by wittling them down to arguments about text. Amidst his powerful technical discussion, the real needs of real people are evident. We are not simply dealing with the arcane details of law but actual peoples’ actual lives.

“And if we think we hear the verses in Leviticus 18:22 and 20:13 questioning us as to why we do not faithfully implement their clear version of what God desires of us? Let us remind them – and ourselves – that the journey of soul-searching, and the understanding of religious mandates, that those two little verses have produced for us will have more than justified their existence, and perhaps even some of the pain that they once caused. שכר וקבל דרוש – it is sometimes the demanding struggle, and not mere obedience, that generates the most enduring reward.”
(Tucker, 31)

I have previously mentioned my daf yomi attempt, that for the last seven years I have attempted to study a page of Talmud daily. I have been regularly inspired, overwhelmed and frustrated with the conversations of Jewish law and living. One thing that has uplifted me is the seemingly Divine coincidences of relevant text, that the digressions of the Talmud will regularly have incredibly prescient materials. How is it that discussions from past millennia can be so apropos to modern challenges?

The other day, I began a new tractate of Talmud, Arachin, discussing the Erech vow, when someone might dedicate themselves or their worth to the Temple. The details are less relevant but a recent tangent was powerfully appropriate. On the backside of the first page, amidst a discussion about the inclusion of seemingly extraneous language, there are several conversations about allowing and encouraging different groups to observe certain mitzvot, that women, slaves and children are in fact, obligated to certain commands we might have thought they wouldn’t be.

Amidst these conversations is a conversation about an individual who is half-slave and half-free. There we find a situation where Bet Shammai seems to be more progressive that Bet Hillel--a seemingly unfamilar situation.

דתנן מי שחציו עבד וחציו בן חורין עובד את רבו יום אחד ואת עצמו יום אחד דברי ב"ה

As we learned in a mishna (Pesaḥim 88a): One who is half-slave and half-freeman serves his master one day, as he is half a slave, and works for himself one day, since he is half free. This is the statement of Beit Hillel.

אמרו להם ב"ש תיקנתם את רבו ואת עצמו לא תיקנתם לישא שפחה אינו יכול בת חורין אינו יכול יבטל והלא לא נברא העולם אלא לפריה ורביה שנאמר (ישעיהו מה, יח) לא תוהו בראה לשבת יצרה

Beit Shammai said to them: You have thereby remedied the situation of his master, who fully derives benefit from all his rights to the slave, but you have not remedied his own situation. How so? He cannot marry a maidservant, as half of him is free, and a free Jew may not marry a Canaanite maidservant. He is also unable to marry a free woman, as half of him is still a slave, and a Jewish woman may not marry a Canaanite slave. And if you say he should be idle, i.e., refrain from marrying, but isn’t it true that the world was created only for procreation, as it is stated: “For so said the Lord that created the heavens…Who formed the earth and made it, He established it. He did not create it to be a waste; He formed it to be inhabited” (Isaiah 45:18)?

אלא מפני תיקון העולם כופין את רבו ועושה אותו בן חורין וכותב שטר על חצי דמיו וחזרו בית הלל להורות כדברי ב"ש

Rather, for the betterment of the world, i.e., so that the slave will be able to engage in procreation, the court forces his master to make him a freeman by emancipating the half that he owns. And the slave writes a bill to his master accepting responsibility to pay half his value to him over time, as currently he has no property with which to redeem himself. And Beit Hillel ultimately retracted their opinion, to rule in accordance with the statement of Beit Shammai that a half-slave must be emancipated. The ruling of the mishna that a half-slave must appear in the Temple is in accordance with this opinion, which holds that the master must free him. Ravina’s statement that he is not obligated to appear in the Temple is in accordance with the initial mishna, according to which Beit Hillel held that the master is not forced to free the half-slave. https://www.sefaria.org/Arakhin.2b.13-17?lang=bi

Looking at this Talmudic text, I see the Gd, the Judaism, that Rabbi Tucker speaks of. The clear, driving force between our tradition is a desire that no person should be forced to be alone. If someone desires a partner, they should be able to find one, to sanctify their lives together. In his lectures at JTS, Rabbi Tucker cited the second chapter of Bereshit, that a person leaves their parents and cleaves to their partner. While Hebrew is a gendered language, he divorced the text from gender, noting the spirit behind the text. In the same way, I see this text from Arachin. It is frankly wrong to keep someone from their loving, consensual, age-appropriate, non-related partner.

Rabbi Tucker concluded his paper with the following statement:

Male and female homosexuality can be reconciled with Judaism, conceived through a Halakhic lens. Specifically, Jews who are living sexual lives with partners of the same sex should be considered to be subject to the same obligations and entitled to the same rights as those whose sexual lives are with members of the opposite sex. Congregations are encouraged to grant family memberships to households created by same-sex couples, and to provide equal support to the celebration of life cycle events in those families, including the joining of partners of the same sex into exclusive spousal relationships. The Rabbinical Assembly should turn its attention to the creation of liturgy, and of legal structures, for the celebration of such spousal unions and for their dissolution. And the theological schools of the Conservative Movement (both rabbinic and cantorial) should assess the candidacies and student status of gays and lesbians aspiring to religious leadership by the same criteria that they apply to all other applicants and students.

Here at CBI, to this day, I believe that we are working to uphold his ruling, creating a welcoming, halachic, authentic, loving, holy Jewish community. I am proud to be here and proud that you are here, too!