women who love women and The TORAH - a responsa

Don't miss an episode! Subscribe to the Madlik podcast: Spotify | Apple Podcasts | Google Podcasts

and Join Madlik on Clubhouse every Thursday at 8:00pm Eastern so you can participate in our weekly live discussion of the Parsha

Link to the Gay Women Responsa: https://www.yeshivatmaharat.org/gay-women-teshuva

1) A man to a man

2) A woman to a woman

3) A man to a woman and her daughter

4) A woman to two men.

This Aggadic (Amoraic) Midrash contains many of the same elements as the Sifra. It begins with a réintroduction of God as the One who punished the generation of the flood, the people of Sodom, and the Egyptians. We are then reminded that God will punish those people who behave like them. And then we are told that the major sin of the generation of the flood was זנות (z'nut), licentious sexual behavior.
It concludes with a statement by Rav Huna in the name of Rebbi Yossi that claims that the straw that broke the camel’s back leading to the destruction of the generation of the flood was that they wrote "גומסיות לזכר ולנקבה . The term גומסיות is a Greek loanword that refers to a marriage document.
The complete phrase, as it appears in the classic printed editions, seems strange. There is nothing problematic about writing a marriage document (ketuba) for a man and a woman. But some have understood this statement to refer to writing a ketuba for two men or two women. If that is the correct understanding, then this phrasing would indeed serve as a parallel to the Sifra.

Rabbi Jeffrey Fox

We are living in a time when too many great rabbanim and poskim view Torah through a lens that destroys the lives of gay women (and men). The Gemara is trying to teach us that sometimes, even after many years of deep learning, there is a need to go back into the cave and rethink our approach. If your Torah is wreaking destruction through the judgment it serves on others in whose place you have never stood, you at least need to begin to imagine a different lens through which to understand Torah. You need to go back into the cave in order to come out with a more refined approach that appreciates that which you viewed cynically. You need to find the positive in phenomena whose negative aspects were your focus until now. You need to open your eyes, without fire, and turn a loving, lifesaving gaze upon Jews who seek to fulfill God’s will. We dare not pervert the Torah, but it is our holy obligation to do our best to understand the Divine will, as expressed through the language of halakha, in a way that does not destroy people’s lives.

Jeffrey Fox:

This constellation of texts leaves us with a conceptual vacuum regarding two single women. What does it reflect about the mesorah that, according to this group, the rabbis did not address the possibility of two women, neither of whom is married to a man, having a physical relationship with each other?

Here it is important to note that the idea of a person self-identifying as gay is a modern concept. It may be hard for us to imagine, but for most of human history, men and women got married and had children even if they had no attraction to a member of the opposite sex.

If they were attracted to members of the same sex, they might have chosen to “step out” on their spouse to fulfill their desires, or they might have remained monogamous or even celibate. Even people who engaged in same-sex intimacy were expected to marry members of the opposite sex.

It really was not until the end of the 20th -- and for some not until the beginning of the 21st -- century that poskim became aware of the reality of gay women. If we assume that the number of gay people as a percentage of the population has been consistent for some time, this means that for thousands of years, gay men and women were living in marriages that were physically unfulfilling or even repugnant to them. Only in the last 150 years has it even been possible for most people -- and certainly all rabbis -- to imagine living with a partner of the same sex in a committed monogamous relationship.

What can we reasonably expect from rabbis living at the turn of the third century CE or even in 18th-century Prague? Of course they could not have had a well-grounded opinion about two women who want to live together, keep a kosher home, be fully shomrot Shabbat and, with God’s help, start a family of their own. Such an image, until the last 20 to 30 years, was simply inconceivable to the rabbinic imagination.

I have been blessed to sit with dozens of frum queer women who are all seeking an answer to a very basic question: what does God want from them? For too long, and in some settings to this day, gay women have been told that it is their duty to marry men. The first step that I think all communities must take is to stop giving such hurtful and destructive advice. Before we ask any halakhic questions, this is a basic issue of human dignity. Would you want your daughter or sister in an unfulfilling relationship? Would you want your son in a relationship with a woman who was never going to be satisfied and would never welcome intimacy with him? Such counsel leads down a path filled with darkness.

Offering advice -- both halakhic advice and life advice -- in an area where we find a vacuum can be very difficult. .. My claim is very simple. It is time to fill that vacuum with a new voice. The reality of the LGBTQ+ community today is that there is still a lot of promiscuity. There may be good explanations for that behavior, given the history of repression and abuse, and the obstacles in the way of recognizing non-heteronormative monogamous relationships. For those who are trying to live within the Orthodox world, this is not really the case. However, halakha also makes claims on people who want to be part of the frum world. I agree with Rava that a woman married to a man who steps out on him is behaving inappropriately. When people “hook up” with each other and don’t think twice about the implications of that physical interaction, that really is pritzut. But when people behave in a way that does not implicate an unknowing spouse and that attempts to maintain halakha in all ways, that should no longer be viewed as pritzut.

When two women seek to build a Jewish home together, with love and commitment, this can no longer be called (even) pritzuta. Rather, given the vacuum left to be filled, this should be understood as tzniuta (modesty) and perhaps even kedushata (holiness).

Androgenous

In 1779, two of the greatest poskim of the generation were faced with the same practical case of an androginos who asked to get married. Rabbi Elazar ben Elazar Kallir, author of Ohr Chadash and Cheker Halakha, began to serve as the chief rabbi 60 of Rechnitz in 1768. He received a letter from the leaders of the city of Vishnitz on February 11, 1779 asking for his direction in this matter. He then wrote a letter to his more senior colleague and chief rabbi of the great city of Prague, Rabbi Yechezkel Landau, the author of the Noda B’Yehuda. Rav Elazar ben Elazar waited for the answer from the Noda B’Yehuda and then added his own response. It is to those two teshuvot that we now turn...

Rabbi Chaim Dovid Yosef Weiss, Satmar Dayan in Antwerp, Vaya’an David vol. 7 Siman 13, Section 6 (page 26) - published 5771 (2010/1) I was also asked by a woman whose husband will not have sex with her, and in order to calm her desire, a friend of hers rubs her privates -- is this forbidden? For behold, the Shulchan Aruch says, “Women who are mesolelot one with another -- This is forbidden from maaseh Eretz Mitzrayim (Vayikra 18:3) that we have been warned about. And it is appropriate to lash them with whips of rebellion, since they have committed a violation. And a man should be careful to keep his wife away from this matter. And he should stop women who are known to engage in this behavior from coming into his home and keep his wife away from going out to them.” And presumably it sounds like this ought to be forbidden even if done (only) by hand. But according to Rashi and Tosafot, it does not appear that way. And it is also written in Levush that we are dealing with rubbing of genitals. But nevertheless this is a matter of pritzut. And certainly we should rebuke the husband with a strong rebuke for not fulfilling the mitzvah of onah. And nevertheless, this should not be permitted except in a case of really great need, and it should only be permitted in a humble fashion with a humble woman. And practically I did not permit it at all.

the Cheker Halakha takes the Prisha’s reading to its conclusion. The only reason for the prohibition of two women marrying each other is that they are not able to have children. We are blessed to live at a time when this is imply no longer the reality of two women living together. They can, if they are so inclined, seek to have children through artificial insemination.

At no point do we find the word אסור ,forbidden, in this context. This forbidding would not be a huge leap to make from the Sifra, but that language is not employed. Based on the flow of the sugya in the Bavli, we conclude that Rava believes that physical intimacy between two women is בעלמא פריצותא ,mere licentiousness. This is certainly something to be avoided but does not imply a formal Torah, or even a rabbinic, prohibition

The Rambam does something quite radical. He takes a concept from the Bavli (nashim mesolelot) and subsumes it under a concept from the Sifra (maaseh Eretz Mitzrayim). This is an unusual way to read the corpus of rabbinic literature. He is the first -- and almost the only -- Rishon to make such a claim. While one must always contend with the Rambam because of his stature, it is important to appreciate the ways in which this is a departure from the Bavli as the authoritative text of halakha.

His creative reading of the Bavli in the light of the Sifra sets the tone for many subsequent poskim. However, his was a minority position in the Rishonim and is simply not the only -- or frankly, the best -- way to read the Bavli.

What does this word mean?

Rabbi Natan of Rome, in his 11th-century Talmudic dictionary Sefer ha-Aruch, defines the term סולל as “ומתחככת משחקות ".The way that I understand these terms is “playing and rubbing,” with a sexual connotation.

Beit HaBechira, Meiri, Yevamot 76a And the language of mesolelot refers to a person who treads on a path and does not penetrate into the dust.

See Rav Moshe Feinstein, in Volume Two of the Dibrot Moshe on Shabbat -- לה הערה נג סימן -- who expresses this idea succinctly: “איש בלא דתשמיש מציאות שייך דלא -- the reality of sex does not exist without a man.

As we have seen many times, the definition of their intimate behavior depends on its similarity to, or difference from, intercourse between a man and a woman. There are two definitions of the physical act offered in the Rishonim. Almost everyone follows Rashi’s lead and assumes that there is genital-on-genital contact in a way that is similar to intercourse between a man and a woman. The Rivan offers a creative read that assumes that there is male seed involved in the behavior. I am not aware of any literature in the Rishonim that addresses the question of ונישוק חיבוק or איברים דרך ביאה between two women.

Rashi, Shabbat 65a, s.v. p’sulot lakehuna (unfit to marry a kohen) -- To the high priest, for she is no longer considered a complete virgin. For even though there was no longer a high priest in the days of Rav Huna, since this is considered to be the way of z’nut (illicit sexual behavior), it would not be appropriate [it is not derekh eretz to marry the high priest].

Prisha, Even HaEzer, Laws of Marriage, Siman 20:11 And what would they do? A man would marry a man… and a woman would be married to two men. It seems that he wanted to say that they did all their deeds in order to not fulfill being fruitful and multiplying. But they were all to meet their sexual appetites. For just as when a man marries a man or woman marries a woman they do not procreate, likewise one woman who is married to two men, they were not doing it for the purpose of being fruitful and multiplying, because anyone who knows that the offspring will not bear his name will not procreate, [he would] behave like Er and Onen and for sure would spill their seed through masturbation.

Here the Prisha understands the marriages that are considered maaseh Eretz Mitzrayim, including those of two women, as an attempt to gain sexual gratification without procreating. His assertion is that none of these relationships intend to build families by having children. All four marriages can almost be reduced to the prohibition of masturbation like Er and Onan.

Rav Moshe Feinstein:

Rav Moshe simply does not understand the phenomenon of same-sex attraction. In many ways, Rav Moshe was a product of his time in this regard. Thank God, we have a different awareness in the 21st century.

JF

The three actions that Rebbi Meir outlines are certainly not forbidden; they are, at most, “pritzuta b’alma -- mere licentiousness.” These three actions are fairly common in our communities at this point: eating in the market, walking with an arrogant posture in the market, and nursing her child in the market. These three practices are clearly societally defined. While they were considered licentious behavior by the rabbis, our framework for understanding people who engage in these behaviors has shifted in our times. While there are still many Orthodox communities in which women do not nurse in public, in the vast majority of the Orthodox world it is not considered immodest for a woman to eat in a restaurant. These public behaviors seem to create a presumption that the women in question might ultimately engage in a prohibited action. Rav Moshe seems to think the same about nashim mesolelot. It is clear to Rav Moshe that a woman who engages sexually

Rabbi David Fried Rabbi David Fried

I want to express my gratitude to Rabbi Fox for extending to me the opportunity to respond to his article. He is to be given tremendous credit for the effort he put into this topic and his desire to help those who experience pain and suffering as a result of these halakhot. The thoroughness of his research is to be commended, and his actively seeking out responses is a testament to his humility and intellectual integrity. Unfortunately, I believe he makes several errors in his interpretation of the sources and overreads their relevance to his halakhic conclusion.

Whether one thinks this is a formal lav in the Torah like the Rambam; whether one thinks it is implied from the aseh of kiddushin; or whether one thinks it is a rabbinic prohibition, or merely a מכוער דבר ;the basic ethic is the same. A mere stated commitment to each other without any mechanism to enforce it is insufficient to remove a relationship from the status of pritzut. As such, I would deem it unlikely that any major posek will endorse a relationship between two women as being not פריצותא ,until such time as halakha can find a way to formalize the relationship in a manner akin to קידושין .At present, there does not seem to be any available halakhic mechanism for doing so, and even R. Fox has not suggested otherwise. One might plausibly suggest that it is worse for a man and a woman because they have the option of kiddushin available to them, and it is specifically the rejection of kiddushin that creates the pritzut. Again, this would be highly speculative and without precedent, though perhaps if several gedolei haposkim were to get on board we could support it.

Rabbi David Fried Rabbi David Fried teaches Judaic Studies at the Ramaz Upper School in New York City and is an editor at thelehrhaus.com. He has semikha from Yeshivat Chovevei Torah and has learned at Yeshivat Har Etzion in Israel.

Rachael Fried

Understanding the difference between descriptions and identities is necessary in order to have a productive conversation about LGBTQ individuals. (cf status and identity - Who is a Jew gs)

Halakha is all about actions and, to my understanding, cares very little about how a person identifies....

Cis gay men * are only a fraction of the LGBTQ community, yet halakhic conversations almost exclusively revolve around that fraction. Outside of the social conversations, much of the Torah focuses on men and largely ignores the experience of individuals who are not men. It is a new level of gaslighting to discriminate against a whole community based on something that isn’t written in the Torah at all. Two sentences in Vayikra specifically talk about a man lying with a man as he would with a woman. I have considered the fact that I almost wish the pasuk did include women so that at least I could be part of the narrative. Instead, women are treated as if the Torah prohibitions apply to them directly when they aren’t even written in the story. To me, this represents one of the worst kinds of erasure. Discrimination without true halakhic backing is prejudice disguised as Torah, and it weaponizes our Torah.

* Cis, short for cisgender (pronounced sis-gender, or just sis), is a term that means whatever gender you are now is the same as what was presumed for you at birth.

After exploring the sources, it seems clear to me that sex without a penis involved is not considered halakhic sex at all. Because of this, nashim mesolelot is considered “mere licentiousness” at worst. I am conflicted about this answer. On the one hand, it is nice for us to permit as many LGBTQ-positive interactions as possible. On the other hand, the reason it isn’t clearly assur is because it is basically not considered real. This is yet another form of erasure.

Reading this teshuva was a new experience for me, one where I finally heard halakha acknowledge women’s desires as real, important, and relevant....The strong and unruly urge that I was taught exists in all men might also apply to women, and it is men’s responsibility to stop that from happening. This is an interesting gender role reversal that almost feels progressive in this context.

Regardless of the outcome, this was the first time I’d heard of some halakhic acknowledgment of women having their own desires and interests in other people. In this way, these conversations among the sages feel oddly validating.

In my experience, almost all queer individuals are discriminated against in the same way, which leads me to believe these prohibitions are based on a social construct and have little to do with actual halakha.

Rashi says that the behavior of nashim mesolelot “is not the way of the world.” I am curious on what that comment is based because it seems possible that it is rooted in a feeling that Rashi had. It is interesting to me that so many men are willing to write so confidently about an issue that does not involve them at all. It is unlikely that these individuals would know what the “way of the world” is, practically speaking, for a population and a private action that does not include them. Furthermore, Rambam states “that offensive act that happens between women who lie one with the other…it is an abominable act…but has no punishment from the Torah or from the Rabbis.” This sounds like he is talking about a behavior that feels offensive and abominable to him but one that isn’t explicitly stated anywhere else as such and has no consequences. This sounds more like name-calling based on a general feeling of ickiness (i.e. bias) than anything else.

Conclusion

I believe that nashim mesolelot should be a straightforward loophole for Orthodoxy to find its way around. It is telling that it took this long for a rabbi to formally write about this subject in this way, and I am grateful to Rabbi Fox for taking this leap, knowing it will likely be an unpopular opinion – one that makes other leaders quite uncomfortable. We jump through hoops to carry on Shabbat and bend over backwards to double wrap our food so we can heat it up in non-kosher ovens. If we can do halakhic gymnastics to keep our carbs for the one week we aren’t supposed to own them, surely we can figure out a way for nashim mesolelot to be dignified members of the community with opportunities for simcha and fulfillment.

]]]

The irony of this delineation is that many rabbis and community leaders promote the idea of gay men and lesbian women marrying each other so that they can be part of the community and live “normal” lives. In these arrangements, it is often understood that those two individuals will have extramarital encounters. There are shadchanim (matchmakers) who specifically arrange such relationships despite the fact that they might be even more prohibited than two unmarried women being intimate with one another.

[[[[

Rachael Fried is the Executive Director at JQY, an organization that supports and empowers LGBTQ youth from Orthodox homes. Rachael received her MSW in Community Organizing from Wurzweiler School of Social Work at Yeshiva University, an MFA from Parsons in Transdisciplinary Design, and a BA in Studio Art from Stern College, where she served as president of the Stern student body and a Presidential Fellow. Rachael is a Wexner Field Fellow, a Schusterman ROI Community Member, and a Ruskay Institute alum.