Analyzing halakhic texts provides insights into the past and present regulation of sexuality under Halakhah. (1) This Article argues that halakhic conceptions of sexuality in Jewish texts, which promote the expression of heterosexual desire through marriage, form the basis of modern strategic readings of sacred texts that disenfranchise women in the process of divorce and reject homosexuality as a permissible sexual identity. Located in the family, (2) where struggles between authority and the expression of sexuality commonly occur, these two issues illustrate how changes in American social norms may, or should, affect the interpretations and implementation of Halakhah by the rabbinical authorities of the modern Jewish movements.
Because Orthodox, Reform, Conservative, and Reconstructionist Judaism each approach Jewish texts and traditions differently, however, their decisions are tempered by their varying theological assumptions about the divine authority of sacred works. Nonetheless, each movement's approach to sexuality has practical effects on the lives of American Jews who follow Halakhah. Consequently, Part II analyzes halakhic texts from past and present rabbinical perspectives that exemplify the laws regulating sexuality, focusing on the rabbinic preference for heterosexual desire as properly expressed in marriage. This Article examines the underlying normative assumptions of differences between men's and women's sexuality. In this context, the discussion of heterosexuality also addresses the modern Jewish attitudes regarding the purpose of marriage between a man and a woman from traditional and liberal perspectives.
Parts III and IV explore the influence of halakhic conceptions of sexuality on divorce and homosexuality. These issues have been chosen because they are matters regulated by Jewish legal institutions. Part III addresses the legal intricacies of divorce in the Jewish tradition and the difficult situation of the agunah, a woman whose husband has refused to grant her a get, or a Jewish writ of divorce. The issue of divorce is located in a larger textual discussion of the position of women in marriage. The section explains how, in the rabbinic materials, the assumptions underlying the halakhic regulation of a woman's sexuality conflict with contemporary social norms. This Article also explores the respective American Jewish movements' responses to this issue. Part IV begins with an analysis of halakhic verses that prohibit homosexual sex in contrast to those texts that suggest the possibility for alternative genders and sexualities. It also addresses the halakhic and social implications of these texts for modern Jewish movements, examining the official reactions of traditional and liberal Jewish movements to the increased visibility and participation of gay, lesbian, bisexual, and transgender Jews ("GLBT Jews") in their respective Jewish communities. It also incorporates GLBT Jews' articulations of their relationships to, and with, the larger Jewish communities in the search for positive Jewish identity.
Part V concludes with an analysis of whether the modern American Jewish movements are consistent in their manner of interpreting and implementing halakhic texts in their respective developments of Halakhah. While the modern Jewish movements are actively responding to the difficulties posed by topics such as divorce and homosexuality, Orthodox, Reform, Conservative, and Reconstructionist Judaism approach each controversial matter strategically, in accordance with their respective theological beliefs. It is important, then, to recognize both how these contemporary authorities apply halakhic texts, as well as how their decisions considerably affect the many people today who value Jewish legal traditions. This Article argues that the Reconstructionist approach to halakhic texts is the most consistent in terms of its internal logical reasoning, even though it departs furthest from the traditional rabbinical constructions of sexuality.
MODERN JEWISH MOVEMENTS: A PARALLEL LEGAL SYSTEM IN AMERICA
The focus of this work is on modern American Jewish movements and their dependence on, or departure from, past halakhic texts in their development of contemporary Halakhah. Specifically, this Article analyzes how older halakhic texts regulated marriage, divorce, and homosexuality and how these texts formed the basis for the dominant paradigm of heterosexual marriage in Judaism. Halakhah regulates life in a way that is different from, but just as important as, secular law. The scope of this Article is restricted to Jewish law. Religious law is important to individuals and to society in its own right. While secular law may sometimes act as a reference point, religious law can, and does, stand alone as a parallel system. Indeed, breaking these religious laws can lead to sanctions for the offender.
Just as other religions contain a variety of perspectives, Jewish beliefs and practices are not monolithic. It is important to identify the major streams of Judaism in America and their varying attitudes towards the sacred texts, as their theological perspectives certainly shape their positions on contemporary gender issues.
The most traditional movement is Orthodox Judaism, which upholds the divine and immutable authority of the Hebrew Bible and the Oral Law, including the Midrashim, the Mishnah and Gemara of the Talmud, works of the Rishonim and Aharonim, and decisions by rabbinical scholars today. (3) For Orthodox Jews, (4) "Halakhah is the essence" of Jewish belief, and their "version [of Jewish law] is the only correct interpretation of Judaism." (5) There do exist "liberals in the [Modern] Orthodox camp who recognize the human factor and espouse the need for Halakhic development" and reject the opinions of rabbis who do not "[allow] for [any] economic, sociological, or psychological factors in Halakhah," (6) as well as those who disallow this approach. It is important to note the possibility for internal disagreement, as it has a considerable impact on the implementation of halakhically-based decisions.
In contrast, Reform Judaism promotes a more pluralistic attitude. Ethical teachings of the Jewish tradition guide Reform theology, and thus "Halakhah is valuable, but is not to be accepted on blind faith as coming from Heaven." (7) In this context, Jewish practice changes more readily in response to modernity because the goal is to maintain guiding principles, such as compassion, rather than enforce specific laws that are now considered to compromise moral actions. (8) This does not mean, however, that Jewish law is totally irrelevant. (9) Decisions by the Central Conference of American Rabbis, the national organization for Reform rabbis, as well as other Reform thinkers, take into account halakhic norms and their historical background, even as these Reform rabbis are willing to consider nonhalakhic factors, especially values, that militate against traditional arguments. (10)
Conservative Judaism's views lie between the religious ideologies of Reform and Orthodox Judaism. Conservative Judaism recognizes Jewish texts and traditions as authoritative and, to a limited extent, divine in origin, but also realizes the need for change "when specific mitzvot [commandments] seem to be outmoded or arbitrarily unethical." (11) These Jews emphasize the binding nature of Jewish practice while using historical and philosophical insights into the development of Judaism to evaluate the modern application of Halakhah. (12) The Rabbinical Assembly, the professional organization to which Conservative rabbis belong, has granted the Committee on Jewish Law and Standards "the responsibility for recommending revisions in religious practice on the basis of Halakhic interpretation." (13)
Originally an offshoot of Conservative Judaism, and now a Jewish movement in its own right, Reconstructionism does not recognize the divine origin of Jewish texts or traditions. The ancient works of Judaism instead represent "man's attempt to discover God as the power of self-fulfillment or salvation." (14) Halakhah is not binding: "Jews should voluntarily choose to observe those customs that are personally meaningful and socially valuable for group survival." (15) This community uses Jewish laws and traditions as guidelines for a religiously evolving civilization. From this perspective, ethical issues in Judaism can be readily solved outside, while still referencing, the halakhic framework. Unlike Orthodox Judaism, where authority is decentralized, or Reform and Conservative Judaism, where decision-making is generally by official committee (while granting individual rabbis some freedom), Reconstructionism encourages "congregational committees, under rabbinic leadership" to determine community practices. (16)
This Article analyzes those halakhic works that are most representative of rabbinic legal positions (17) on issues of sexuality, especially those texts that modern Jewish legal authorities continue to refer to today. It evaluates Halakhah in a variety of time periods. The Hebrew Bible, mostly written (though not standardized) by the first century C.E., serves as the basis for explanations in later texts, and this Article examines biblical laws in the historical context of the Ancient Near East. From the third century, the Mishnah is a concise collection of legislation, organized by topic, whose authors often refer to the biblical verses as support for their halakhic innovations. Many works of halakhic Midrash, texts that generally follow the order of the Bible, also come from the first centuries C.E. The Tosefta, a body of legal literature contemporaneous with the Mishnah, but not included in its final redaction, extends the Mishnaic rulings. Rabbis from the Mishnah, Midrash, and Tosefia are called Tannaim and material from this time period is called tannaitic. There are two Talmuds that consist of the Mishnah...