Male Homosexual Intercourse Is Prohibited – In One Part of the Torah

Leviticus has two separate lists of sexual prohibitions, one in chapter 18 and another in chapter 20; the prohibitions are similar, although only the latter includes punishments.^[1]Both lists include male homosexual intercourse:

^{ויקרא יח:כב} וְאֶת זָכָר לֹא תִשְׁכַּב מִשְׁכְּבֵי אִשָּׁה תּוֹעֵבָה הִוא.

^{Lev 18:22} Do not lie with a male as one lies with a woman; it is an abhorrence.

^{ויקרא כ:יג} וְאִישׁ אֲשֶׁר יִשְׁכַּב אֶת זָכָר מִשְׁכְּבֵי אִשָּׁה תּוֹעֵבָה עָשׂוּ שְׁנֵיהֶם מוֹת יוּמָתוּ דְּמֵיהֶם בָּם.

^{Lev 20:13} 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 – their bloodguilt is upon them.

The designation of the male homosexual act as a toevah—an “abhorrence” or “abomination”^[2]—and a capital offense places many contemporary Jews in an embarrassing situation. Modern sensibilities make it nigh impossible to identify positively with these texts. And yet, they are an inherent part of our sacred writings, traditionally read on the holiest day of the year.^[3] The question I would like to address here is not how halakhah can accommodate itself to the needs of the religiously committed homosexual community, but how we might approach the biblical text from a theological perspective.

A Review of Modern Accommodating Interpretations

One of the common methods for dealing with this issue is to construe the texts as somehow saying something other than what they seem to be saying. Jacob Milgrom (1923-2010), who was both a leading Leviticus scholar as well as a Conservative rabbi, offers three different approaches.^[4]

Protecting Reproduction: First, he argues that the biblical prohibition reflects the concerns of a precariously fledgling nation with its own preservation through human reproduction. In other words, biblical law prohibits homosexual relations between men because they threaten to thwart reproduction through heterosexual relations. Following this interpretation of the law, Milgrom goes on to assert that it is not applicable in the world of today, which struggles with the challenges of overpopulation.

Only in Israel: Milgrom further argues that the prohibition is addressed to those living in the land of Israel and has no implications for the rest of the world. Obviously, this is hardly helpful for the people living in Israel.

Mirroring Heterosexual Prohibitions: Finally, Milgrom, following one of his students, suggests taking the prohibition of lying with a man “the lyings of a woman,” as referring to the prohibited heterosexual relationships mentioned earlier in the text. In other words, the text indicates that just as a man cannot have sex, for instance, with his uncle’s wife, so may he not have sex with the male counterpart to her, his uncle. Homosexual activity with a man from outside one’s family would then be permitted.

Other scholars have suggested alternative approaches to tackling this problem:

Violence or Degradation: Rabbi Steven Greenberg interprets the biblical prohibition of Lev 18:22 as concerned basically with the active partner. The phrase “lyings of a woman” is taken as a reference to sex as an expression of “humiliation and violence.” Following this, Rabbi Greenberg suggests that the verse considers it an abomination for a man to have sex with another man only when it is “for the perverse pleasure of demeaning another man.” ^[5]

Ménages à Trois: Rabbi David Greenstein suggests that the phrase ואיש אשר ישכב את זכר refers to a man who lies with a woman together with another man (את זכר). These two men, who have heterosexual relations with the same woman at the same time, are condemned to death. The woman is not held accountable since she is considered a victim of rape.^[6]

The Prohibition as Expressed in the Torah

The above approaches ignore one or more of the following aspects of the prohibition:

“Lay with”: The phrase שכב את (“like with”) in the Bible always refers to sexual relations between the individuals mentioned. Thus, the phrase ואיש אשר ישכב את זכר “who lies with a male”) must refer to a man who has sex with another man. It cannot refer to a ménages à trois.

Lyings of a woman: This seems to simply be a euphemism for intercourse. There is no compelling reason to take “lyings of a woman” as a reference to violence and humiliation.^[7]Nor is there any textual basis to suggest it refers to the husbands of forbidden women.

Abomination: The homosexual act is referred to as a תועבה “an abomination.” It is preceded in Lev 18:21 by the law against child sacrifice and followed in Lev 18:23 by the prohibition against bestiality. The category of “abomination,” as the adjacent examples show, surely reflects a deep aversion to something that is considered fundamentally depraved. It cannot be reduced to the level of rationalistic and pragmatic considerations concerning population growth.^[8]

Death Sentence: Leviticus 20:13, condemns both men to death, strongly implying that both are participants in the act and guilty and not that the active partner was forcing or degrading the passive partner, who should then be free of punishment (just as the raped woman is in Deut 22:26).

Universal: The characterization of the laws in 18:5 implies that we are dealing with a universal ethic:

^{ויקרא יח:ה} וּשְׁמַרְתֶּם אֶת חֻקֹּתַי וְאֶת מִשְׁפָּטַי אֲשֶׁר יַעֲשֶׂה אֹתָם הָאָדָם וָחַי בָּהֶם אֲנִי יְ-הוָה.

^{Lev 18:5} You shall keep My laws and My rules, by the pursuit of which person shall live: I am YHWH.

The fact that God’s laws are contrasted with the ways of both the Canaanites and the Egyptians, who, according to the Bible,^[9] permitted such activities (Lev 18:3, 24), strengthens the impression that they are essentially seen as universal, and not limited to a specific land or time:

^{ויקרא יח:ג} כְּמַעֲשֵׂה אֶרֶץ מִצְרַיִם אֲשֶׁר יְשַׁבְתֶּם בָּהּ לֹא תַעֲשׂוּ וּכְמַעֲשֵׂה אֶרֶץ כְּנַעַן אֲשֶׁר אֲנִי מֵבִיא אֶתְכֶם שָׁמָּה לֹא תַעֲשׂוּ וּבְחֻקֹּתֵיהֶם לֹא תֵלֵכוּ.

^{Lev 18:3} You shall not copy the practices of the land of Egypt where you dwelt, or of the land of Canaan to which I am taking you; nor shall you follow their laws.

^יח:כד אַל תִּטַּמְּאוּ בְּכָל אֵלֶּה כִּי בְכָל אֵלֶּה נִטְמְאוּ הַגּוֹיִם אֲשֶׁר אֲנִי מְשַׁלֵּחַ מִפְּנֵיכֶם. ^יח:כה וַתִּטְמָא הָאָרֶץ וָאֶפְקֹד עֲו‍ֹנָהּ עָלֶיהָ וַתָּקִא הָאָרֶץ אֶת יֹשְׁבֶיהָ.

^18:24 Do not defile yourselves in any of those ways, for it is by such that the nations that I am casting out before you defiled themselves. ^18:25 Thus the land became defiled; and I called it to account for its iniquity, and the land spewed out its inhabitants.

In sum, the text describes male homosexual sex, even when consensual, as an abomination and a defilement, requiring the death penalty for both participants. It is of little use to attempt to make the text say something other than what it plainly says. An authentic grappling with the biblical text requires intellectual honesty and exegetical candor. How then might we accommodate for these texts?

Competing Legal Collections

A more credible approach would be to recognize that the passages in Leviticus 18 and 20 are lone voices within the law collections of the Torah. They do not represent the “majority view.”^[10] As has been shown conclusively by critical analysis, the various Pentateuchal law collections with their surrounding narratives represent conflicting accounts not only of the covenant event itself, but also of the essential divine demands that were imposed during that event.^[11]

This “critical” approach is the best way to account for the multiple repetitions, inconsistencies and outright contradictions between the different law collections and their respective narrative frameworks. It was only when the final redactors combined these texts and incorporated them into a single and continuous, overarching narrative that the conflicting accounts of God’s covenantal stipulations came to be seen as complementary ones.

In fact, however, the earlier documents are best understood, at least originally, not only as divergent and conflicting formulations of God’s essential demands from Israel, but also, to a large extent, as self-consciously competitive.

1. Deuteronomic Collection

Thus, when Deuteronomy states (4:44) “This is the teaching that Moses placed before the children of Israel” (וְזֹאת הַתּוֹרָה אֲשֶׁר שָׂם מֹשֶׁה לִפְנֵי בְּנֵי יִשְׂרָאֵל), we should probably hear an emphatic זאת. This, the code of Deuteronomy, is the Torah of Moses, and not the Covenant Collection of Exodus 19—23, potentially early Priestly laws that are now found scattered throughout the books of Exodus, Leviticus and Numbers, or other Mosaic law-collections that might have existed at the time but are no longer extant.

This competitive claim to exclusive authority is implicit in Deuteronomy’s insistence (13:1),

^{דברים יג:א} אֵת כָּל הַדָּבָר אֲשֶׁר אָנֹכִי מְצַוֶּה אֶתְכֶם אֹתוֹ תִשְׁמְרוּ לַעֲשׂוֹת לֹא תֹסֵף עָלָיו וְלֹא תִגְרַע מִמֶּנּוּ.

^{Deut 13:1} Be careful to follow everything that I command you; you shall not add to it or take away from it.

The passage implies that the Deuteronomic code is completely adequate unto itself, presenting the first and final word on God’s demands from Israel.^[12]

2. Holiness Collections

The presumably once-independent Holiness law-collection also claims that it provides the single correct version of God’s Sinaitic demands (cf. Leviticus 26:46; 27:34).

^{ויקרא כו:מו} אֵלֶּה הַחֻקִּים וְהַמִּשְׁפָּטִים וְהַתּוֹרֹת אֲשֶׁר נָתַן יְ-הוָה בֵּינוֹ וּבֵין בְּנֵי יִשְׂרָאֵל בְּהַר סִינַי בְּיַד מֹשֶׁה.

^{Lev 26:46} These are the laws, rules, and instructions that YHWH established, through Moses on Mount Sinai, between Himself and the Israelite people.

^{ויקרא כז:לד} אֵלֶּה הַמִּצְו‍ֹת אֲשֶׁר צִוָּה יְ-הוָה אֶת מֹשֶׁה אֶל בְּנֵי יִשְׂרָאֵל בְּהַר סִינָי.

^{Lev 27:34} These are the commandments that YHWH gave Moses for the Israelite people on Mount Sinai.

The clear implication of the formula that is frequently appended to the Priestly laws, לדרתיכם) חקת עולם), “(for your generations) as an eternal command,” or the like is that these laws are the single correct version.

3. Covenant Collection

Though the covenant of Exodus 19-24 makes no explicit claim to enduring character of its laws, the fact that the blood of the covenant is sprinkled on the people after they proclaim “we shall do and we shall listen” (נעשה ונשמע) in response to the recitation of the “book of the covenant” (ספר הברית) clearly implies that a similar conception of finality is assumed. The same may be said for the laws of Exodus 34:10-26, which conclude with the statement of verse 27,

^{שמות לד:כז} וַיֹּאמֶר יְ-הוָה אֶל מֹשֶׁה כְּתָב לְךָ אֶת הַדְּבָרִים הָאֵלֶּה כִּי עַל פִּי הַדְּבָרִים הָאֵלֶּהכָּרַתִּי אִתְּךָ בְּרִית וְאֶת יִשְׂרָאֵל.

^{Exod 34:27} And YHWH said unto Moses, “Write these words: for based on these words I have made a covenant with you and with Israel.”

These words and no others.

When the Collections are in Conflict

The various law collections in the Torah are not only independent of each other in presentation, but they often contradict each other and sometimes even seem to be polemicizing against each other.

Levirate Marriage – Mitzvah or Toevah?

One stark example of such a polemic is the law of levirate marriage in which a brother is supposed to marry his deceased brother’s wife if he died without offspring. According to Deuteronomy 25:5-10, this is a mitzvah and a man is publicly shamed if he refuses to perform it. Nevertheless, according to the Holiness collection, such a marriage must be considered an “abomination” (Lev 18:16, 24-30; 20:21), and thus, Deuteronomy’s mitzvah a complete sacrilege!^[13]

Circumcision of Heart or Body?

Another, more subtle example is circumcision. It is striking that circumcision is never enjoined by Deuteronomy as an obligation of the covenant. Deuteronomy, however, does affirm that which is, in its view, truly important, the symbolic circumcision of the heart (10:16). Surely the author of Deuteronomy was familiar with the ubiquitous practice of circumcision in the Levant, but for him this was likely an ethnic rite, not a mitzvah. Nevertheless, for the Priestly author of Genesis 17, circumcision is not merely a mitzvah, but a sign of Israel’s covenant with God, going all the way back to Israel’s first patriarch, Abraham.^[14]

Male Homosexuality: A Machloket (Difference of Opinion) in the Torah

The question of male homosexual congress may be another example of a dispute between the law collections. Leviticus 18 and 20 prohibit male homosexual congress in the strongest of terms, but both of these texts are part of one legal corpus, the Holiness Collection. No other law collection in the Torah (or passage in Tanach!) says anything explicit about homosexual relations.

Unanimity on Zooerasty

The silence of all sources but one on male homosexual congress is in sharp contrast to the prohibition against zooerasty that appears in three separate legal collections (Exod 22:18, Lev 18:23, 20:15-16, Deut 27:21).

Covenant Collection(Exod 22:18)

כָּל שֹׁכֵב עִם בְּהֵמָה מוֹת יוּמָת.

Whoever lies with a beast shall be put to death.

Curses on Mount Ebal (Deut 27:21)

אָרוּר שֹׁכֵב עִם כָּל בְּהֵמָה וְאָמַר כָּל הָעָם אָמֵן.

Cursed be he who lies with any beast. — And all the people shall say, Amen.

Holiness Collection(Lev 18:23)^[15]

וּבְכָל בְּהֵמָה לֹא תִתֵּן שְׁכָבְתְּךָ לְטָמְאָה בָהּ וְאִשָּׁה לֹא תַעֲמֹד לִפְנֵי בְהֵמָה לְרִבְעָהּ תֶּבֶל הוּא.

Do not have carnal relations with any beast and defile yourself thereby; and let no woman lend herself to a beast to mate with it; it is perversion.

Deuteronomy’s Sexual Prohibitions

The collection of curses to be recited on Mt. Ebal (Deut 27:9-26) is particularly instructive since it contains the only list outside of the Holiness Collection of sexual prohibitions in the Torah. Scholars have recognized that this text, again, reflects a version of the covenant demands made upon Israel in the wilderness, that originally stood on its own, independent of Deuteronomy as a whole, that placed special emphasis on sins that are hidden from the public eye.^[16] Like the Decalogue, it mentions idolatry and the honoring of parents, but then goes on to address different matters, among them matters of sexual conduct. While bestiality and various forms of incest – all represented as well in Leviticus 18 and 20 – are mentioned, homosexuality is not.^[17]

Not an Affront to Human Dignity

Perhaps we may say that the Covenant Collection and the Deuteronomic Curses on Mount Ebal recognize that bestiality and homosexuality cannot be classed together. While bestiality is a form of sexual release that degrades human dignity, a homosexual relationship between two human beings created in the divine image can be founded on mutual love and respect, and enhance human dignity. As many scholars have cogently argued, this approach, quite possibly, is reflected in David’s public lament for Jonathan in,

^{שמואל ב א:כו} צַר לִי עָלֶיךָ אָחִי יְהוֹנָתָן נָעַמְתָּ לִּי מְאֹד נִפְלְאַתָה אַהֲבָתְךָ לִי מֵאַהֲבַת נָשִׁים.

^{2 Samuel 1:26} I grieve for you, My brother Jonathan, You were most dear to me. Your love was wonderful to me more than that of women.^[18]

Of course, we cannot assume that all the authors of the texts of the Torah that fail to prohibit homosexual sex would necessarily have approved of homosexual relations or relationships. But none of them deemed this matter relevant or worthy of mention within the context of the foundational covenant made between God and Israel.^[19]

The Prohibition of Adding Commandments

Indeed, if we recall Deuteronomy’s prohibition on adding or subtracting from its own list of covenant stipulations, we may conclude that Deuteronomy would see in the prohibition of homosexuality of Leviticus an illegitimate addition! If Deuteronomy can present Levirate marriage, characterized by Priestly law an “abomination,” as a mitzvah (see above), it can surely conceive of other alleged “abominations” in at least neutral terms.

We have, then, a מחלוקת (difference of opinion) in the Torah on homosexuality. While Leviticus 18 and 20 severely prohibit it, the other law-codes of the Torah do not deem it relevant to the covenant.

Reading the Laws of the Torah Together – What Are the Options?

Having established that the Torah is made up of different legal collections, each independent—and sometimes in polemical dialogue—with the other on a number of issues including homosexuality, how might we conceive of reading this conglomeration of contradictory legal claims? On the whole, two alternatives have been pursued.

Documentary Approach

Most critics proceed from the assumption that the conglomerated whole is simply unreadable. They therefore break up the present Torah text into coherent and internally consistent, independent documents, and proceed to read and analyze each document separately. Following this, they often attempt to account for the contradictions between the law codes by reading them against the background of the hypothesized historical contexts in which they were written.

While this approach has had enormous success in reconstructing the development of ancient Israelite law, it achieves this success by reading the laws outside the narrative context in which the Torah, as literary work, presents them.

Complementary Approach

Traditionally minded scholars, aware of the contradictions in style and content but interested in a unified approach to the text, seek to read the individual law-codes as complementary parts of a single whole.^[20] This approach, however, often entails extremely forced harmonistic exegesis.

Polyphonic Text Approach

I would like to suggest a third alternative. The Torah can be taken, among other things, as a “polyphonic” text, or a loose anthology of competing claims regarding the legal stipulations of the covenant. The edited Torah, following this approach, was not meant to be read as a practical and coherent handbook on how to carry out the law, but as a collage of competing understandings of the requirements of the covenant.

A similar type of reading has been suggested for other biblical books that severely challenge attempts to find complete coherence, such as the books of Job and Kohelet.^[21] The reader of these books is not called upon, following this approach, to harmonize the conflicting theological positions within them so that they all cohere, but to accept the contradictions as competing attempts to conceptualize truth.

If we approach the Torah with a similar literary approach, we might say that it does not ask us to harmonize the contradictions between its various reports concerning what God demanded of Israel at Sinai, but to acknowledge them and ponder and evaluate the significance of their competing claims.

Where does that leave us when it comes to what the “Torah” says about homosexuality? I would argue that the polyphonic Torah calls on us to struggle with its alternative positions and to ultimately take responsibility and take a stance. We cannot claim that we were not given choices.