http://galusaustralis.com/2009/11/confronting-the-last-taboo-orthodox-judaism-and-homosexuality/#comment-4736

Joel says:

November 11, 2009 at 1:52 am

There seems to be quite a lot of mention of the logical justification of maintaining the prohibition against homosexual relationships – namely, that it is mutually exclusive to Jewish continuity.

I would like to point out a number of issues with regard to the development of Jewish law throughout the ages and its response to modernity and new phenomena.

Firstly, orthodoxy, in its truest form, before the codification of the law and sealing of the oral law, was always a dynamic law, one that changed and responded to contemporary issues as they arose. Its stagnant nature is a product of historical necessity that spawned from fear of the loss of the oral tradition. Interestingly, when one peruses the debates conducted between the Sages, one will find a plethora of examples throughout the Talmud of instances whereby a new sociological, economic or moral dilemma arises and the result is that a strict biblical prohibition (the ‘letter’ of the law) clashes with a more general religious precept (the ‘spirit’ of the law) such as ahavat yisrael (love and care for all Jews) or the importance of the unity of klal yisrael (the wider Jewish People). One example is the laws pertaining to prozbul. In short, they are laws that refer to loans between Jews, whereby all loans that stood unsettled, upon the year of the jubilee, were annulled. This created a stagnant and unfortunate economic climate whereby the rich would no longer loan to the poor for fear that the loan would be annulled and their principal would be unrecoverable. The Sages deliberated over the unfortunate situation of the poor being further financially unsupported as a result of an unambiguous torah prohibition and found a way to circumvent the rule. In light of this new economic phenomenon, they created a different system; a system that allowed for assurance to the money-lender and security to the poor. The spirit of the law, as identified by the rabbis, the pivotal tenet of Judaism to care for the less fortunate, defeated the letter of the law. There are many more examples of the ‘spirit’ defeating the ‘letter’ throughout the oral tradition.

Now we are brought to the new phenomenon of homosexuality with regard to Judaism. No, not new, as homosexuality undoubtedly has existed since the beginnings of gender attraction and by proof of it being addressed in the Bible, at least since biblical times. But it is a phenomenon that modernity has drawn to the surface more poignantly than ever in light of unprecedented sexual freedom of expression and one must surely admit, the highest levels of tolerance and acceptance of such expression. Judaism, as ever before, in remaining truthful to its dynamic roots, must attempt to respond to this dialectic in an attempt to reconcile the letter of the law with the spirit of the law.

Many people have suggested a seemingly straightforward response to the essentiality of the prohibition against homosexual relationships – preservation of Jewish continuity. However, when we read the issue of homosexuality and Judaism on the backdrop of modern science and other religious law, we must surely realize that the once sole method of creating a family via traditional heterosexual reproduction has long since been displaced by the contributions of genetic science and adoption procedures. With regard to lesbian relationships, fertility treatment and embryonic research has become widely accepted as an alternate method of conception for couples for whom ‘traditional’ conception is unviable. Thus, for a lesbian Jewish couple, a Jewish family is born. For homosexuals who wish to create a Jewish family, adoption would be the first point of call, via an adoption agency or a surrogate. At a young age, a child is automatically converted to Judaism by the decision of his or her parents and has the option of ‘accepting’ it upon him or herself later in life. Once again, a non heterosexual couple has a way of creating a Jewish family. I will not begin to respond to those who self-righteously ask, “But what kind of family is that? Is that the way a Jewish family should be?” Such a claim is not justified in light of many dysfunctional heterosexual Jewish families whose Jewish spirit is also in question. The nature of a Jewish family is judged on the choices it makes and priority it places on Jewish values; not the sexual preference of its parents. It is also unjustified in light of general dysfunction that exists in families with heterosexual parents and no clear evidence that homosexual parents would be in any way incapable of creating a safe, warm and supportive family environment.

The logical rationalization of heterosexual relationships over homosexual relationships from a halahik point of view as being the sole and essential route to Jewish continuity, ignores blatant and numerous modern options for creating families. This is not to say that now that this commonly accepted rationalization has been debunked, that the law is no longer necessary. My comments merely point out that the moment one builds a structure of logic around a biblical law with such certainty, it leaves very little to stand on when that logic is disproven. That which bold orthodox leaders must now undertake is a way for the spirit of the law to once more defeat the rigid letter for the sake of klal yisrael and am yisrael.