In the fourth century, Rabbi Judah said: “an unmarried man may not keep livestock nor two unmarried men share the same blanket; but the Sages permit it” (Kid 4:14). After these last texts, followed by Maimonides, the Talmud (Kid 82a) determines this precaution against homosexuality to be useless. Similar to Rabbi Judah, Rabbi Joseph Caro (1488–1575), in an effort to squelch debauchery, states that two males should not remain alone together. However, Rabbi Joel Sirkes (1561–1640) considers homosexuality to be non-existent among Polish Jews. This idea that homosexuality is non-existent in Judaism thus persists, despite the claims of homoerotic, medieval Jewish poetry to the contrary (Schirmann). In truth, there is no evidence in Jewish history of any cruel repression of “sodomites.” Living in the Diaspora under the laws of the
goyim
(Gentiles)
,
Judaism had no opportunity to apply its own laws; further, since the time of the Pharisees, Judaism has been averse to all forms of the death penalty: the Halakha
,
the body of Jewish law, has always been flexible enough to avoid this. Finally, a widespread opinion that still remains, attributed to Immanuel Jakobovits, retired chief rabbi of the British Commonwealth, challenges the primacy of love put forth by certain Christian circles: “Jewish law states that no hedonistic ethic, even one called ‘love,’ can no more justify the morality of homosexuality than it can legitimize adultery or incest, no matter that such acts can be carried out by reason of love or mutual consent.”
Evolutions
“To say the Jewish people are a chosen people is to say that they have an infinite and permanent responsibility towards others” (Bernheim, 44). This is the underlying conviction behind Judaism’s opinion on homosexuality. Three factors have revived this issue: homosexuality’s “coming out,” including among Jews, post-Freudian research on sexuality, and the introduction and spread of
AIDS
.
On this observation, Judaism and its diverse currents do not all agree on homosexuality. “Orthodox” Judaism would content itself with the repression of homosexuals were it not, in fact, subject to state legislation. “Moderate” (or conservative) Judaism does its best to reconcile the imperatives of the Halakha and the humanist values of the Jewish tradition, specifically the attention to man as he is. The latter tends to recognize the homosexual identity, but Jewish debates on the subject in the United States between 1990 and 1992 resulted in an open, if tenuous agreement (Dorff,
Epître de l’amour
[
This is My Beloved, This is My Friend
]); access to the rabbinate remained closed to avowed homosexuals, but the movement was resolutely committed to the fight for the recognition of gay rights in society. As of 2007, the Jewish Theological Seminary of America ordains gay and lesbian rabbis and accepts openly gay and lesbian students. Some, playing on the Talmudic principle (BK 28b) that one who is
forced
to break the laws of the Halakha cannot be held guilty, excuse homosexuality, based on the idea that it is impossible to subscribe to “normality.” This point of view also prevents homosexuals from being condemned to perpetual chastity, as sexuality is a gift from God, who insists upon its blossoming. “Reform” (liberal) Judaism starts from yet another principle: that the Bible, the Talmud, and its interpreters are informed by bygone historical circumstances, and it is necessary to revise the Halakha in view of new information on sexuality available.
The Jewish arguments on the nature of homosexuality itself do not necessarily divide along these same Judaic lines. A perceptive examination by a rabbi inspired this observation: the gay Jew faces “the religious split, which relegates him to the domain of the interdicts; the familial split, which confronts him with silence; and the community split, which makes of him a pariah” (Bernheim, 80). Others still declare homosexuality to be as a psychiatric disorder and call for compassion and understanding (Jakobovits, “AIDS: A Jewish Perspective”). However, others believe that any such permissiveness will bring about other excesses, such as the legitimization of cannibalism. As such, a combination of these beliefs would advocate the care of those stricken with AIDS, in the name of the law (Lv 19:16), but at the same time rail against the conduct that led to the infection in the first place. Perhaps, some might add, those who are afflicted with the contagion will be moved to repent their past, and thus become even more worthy of mercy (Rosner). In any event, some say, if AIDS is not a form of divine punishment, it is the consequence, the price to be paid for the tendencies of a permissive society.
These viewpoints do not cover the whole of Judaism. They have, however, driven certain gay and lesbian Jews to affirm their difference. Today, gay synagogues exist in various cities. And since 1977, Beit Haverim, the French Jewish LGBT organization, describes itself as “[gathering together] Jewish gays and lesbians from Paris and its suburbs,” though the Consistory (the governing body of Jewish congregations in France) does not recognize it as a Jewish association. Defining themselves on clearly liberal Jewish sources, these gay institutions maintain a two-fold position: demanding the recognition of the gay identity in Judaism, and providing a refuge for gays and lesbians in the face of the rejection by the Orthodox community.
According to Daniel Boyarin, it is during the twentieth century that homosexuality has finally been categorized: “If Foucault could write ‘our time has inaugurated sexual heterogeneousness,’ we can also claim that our time has inaugurated, and almost in the same way, racial heterogeneousness” (Boyarin [1994], 239). Judaism, too, has been categorized. From this point of view, the Jewish community, often subject to widespread discrimination, goes hand and glove with the gay community (Dorff,
Epître
[
This is My Beloved
]). At its heart, Jewish culture is not necessarily inclined toward homophobia, but it seeks a balance between the Halakha and the human (Bernheim), and between religious standards and a profound sense of human rights—a sense that is nourished by both the Halakha and the Bible itself.
—Claude Tassin
Beck, Evelyn Torton, ed.
Nice Jewish Girls: A Lesbian Anthology
. Boston: Beacon Press, 1989.
Bernheim, Gilles.
Un rabbin dans la cité
. Paris: Calmann-Lévy, 1997.
Boyarin, Daniel.
A Radical Jew: Paul and the Politics of Identity
. Berkeley: Univ. of Califomia Press, 1994.
———.
Carnal Israel: Reading Sex in Talmudic Culture
. Berkeley: Univ. of California Press, 1993.
Dorff, Elliot N. “Conservative Judaism.” In
Encyclopedia Judaica
. CD-ROM Edition. 1997.
———.
Epître de l’amour
. Paris: Nadir, 2000. [Published in the US as
This is My Beloved, This is My Friend
. New York: Rabbinical Assembly, 1996.]
Jakobovitz, Immanuel. “AIDS: A Jewish Perspective”; “Homosexuality.” In
Encyclopedia Judaica
. CD-ROM Edition. 1997.
Leneman, Helen. “Reclaiming Jewish History: Homoerotic Poetry of the Middle Ages.”
Changing Men,
no.18 (1987).
Rosner, Fred. “Medical Ethics of Judaism.” In
Encyclopedia Judaica
II. 2000.
Schirman, Jefim. “The Ephebe in Medieval Hebrew Poetry.”
Sefarad
15. (1955).
Shoheid, Moshe.
A Gay Synagogue in New York
. New York: Columbia Univ. Press, 1995.
Szesnat, Holger. “Pretty Boys in Philo’s
De Vita Contemplativa
.”
The Studia Philonica Annual
10 (1998).
Wigoder, Geoffrey, ed. “Judaïsme conservateur”; “Judaïsme orthodoxe”; “Judaïsme reformé.” In
Dictionnaire encyclopédique du judaïsme
. Paris: Le Cerf, 1993.
—Against Nature; Bible, the; Greece, Ancient; Paul (of Tarsus); Sterility; Theology; Vice; Violence.
JURISPRUDENCE
The consideration of homosexuality by the judicial system has been a constant in French law in particular since the mid-nineteenth century; not only homosexuality itself but “problems” arising from it as well. Historically in France, it is in criminal law that this attitude first came to be adopted. Whereas in 1810, the law specifically stated that sexual relations between persons of the same gender would not be penalized, French judges beginning in the 1850s started to identify homosexuality in particular as an aggravating circumstance in certain cases, such as relations between adults and minors. If today in France this attitude toward homosexuality no longer seems prevalent in criminal matters, it still appears in civil law cases, particularly in family law, with regard to divorce and parental rights.
During the first half of the twentieth century, in some divorce cases, the judicial system cited the husband’s homosexuality as grounds for the dissolution of marriage. For example, in one case in 1909, a divorce was granted where the husband was declared at fault for having “gravely abused” his wife by maintaining, with another man, “a passionate friendship that dominated him to the point of making him indifferent and even hostile to his wife.” An implied representation of his homosexuality was even included in the court documents, in which the husband was portrayed as weak, unfaithful, and a traitor, not only to his wife, but also to her
family
. We must note the shift from the initial grievance against his relationship with another man to that of a socially perverse, unbalanced, and abnormal individual, using the language used by the
medical
profession at the time to describe homosexuals. The French Court of Appeal, referring to “relations that were manifested in such a strange way” with regard to the husband’s “tenderness, too similar to that of a woman,” was also inspired by medical arguments when it considered that the husband’s calls to his lover “reveals the exasperation of a pathological sensitivity, a type of hysteria of the brain.”
Since the 1940s, there have been more judicial decisions in civil cases of this sort, each one revealing, in essence, that the judge in question determined the existence of a specifically
homosexual
offense, which could be used as grounds for divorce even if the other duties and obligations of marriage were upheld. A spouse’s homosexuality is not considered among the issues traditionally linked to a couple’s sex life, but rather exclusively as an offense. Furthermore, a husband’s “homosexual penchants” can be reason to forgive the wife’s refusal to have sexual relations with him, as well as the revelation of “indiscretions” (gossip) with others regarding the husband’s “homosexual adventures.”
With regard to the proprietary consequences of divorce, jurisprudence admits that, based on the grounds of civil liability, the circumstances of a husband’s homosexuality may be grounds for a wife to request financial compensation for damages, emotional or otherwise. Such decisions thus accept that the husband’s “publicly known homosexuality” causes obvious and reparable moral wrong to the wife. As an offense according to civil liability, legally speaking, the husband’s homosexuality is therefore considered to be a “lapse in conduct.”
When it comes to the issue of exercising parental authority in divorce cases in France, since the 1980s homosexuality has constituted a “valid” reason for which a parent can be deprived of his or her rights, or at least have those rights restricted; this has been solely the arena of jurisprudence, in the absence of any specific legislation. The restriction of parental rights on these grounds has been demonstrated in numerous ways, including the refusal to grant shared custody, the refusal to acknowledge the homosexual parent’s home as the child’s primary residence, or even by the limitation or outright denial of visitation rights. These homophobic decisions by the judicial system have the effect of causing shame and embarrassment to the homosexual partner or parent. Jurisprudence, in treating homosexuality as a “serious offense” (and hence detrimental) with regard to a healthy marriage or child-rearing, thus equates it with parental crimes such as kidnapping or abuse.
In determining place of residence for a child of divorce, homosexuality is always regarded as a decisive circumstance; whether the judge feels that the parent’s sexual orientation or same-sex relationship is not compatible with a child’s best interests. As for visitation rights, these are an extension of the previous themes: the circumstance of homosexuality is considered relevant by those judges, who,
a priori
, are hostile to it. If visitation rights are granted to the homosexual parent, it is, hypothetically, “despite” the parent’s homosexuality and based on the understanding that it will not to be detrimental to the children.
The judicial system’s use of homosexuality as grounds for divorce or as a reason to limit or deny parental rights is, on one level, nothing more that a reflection of how society views homosexuality. However, it also reminds us of prevalent attitudes within the judicial system with regard to homosexuality, and reveals the predominant role played by jurisprudence in the construction of a stigmatized
homosexual
difference that is evident in society, even in countries where homosexuality itself is officially legal.
—Daniel Borrillo and Thomas Formond
Comstock, Gary. “Developments: Sexual Orientation and the Law,”
Harvard Law Review
1541–54, no. 102 (1989).
Danet, Jean. “Le Statut de l’homosexualité dans la doctrine et la jurisprudence françaises.” In
Homosexualités et droit
. Edited by Daniel Borrillo.
Les Voies du droit
. Paris: Presses universitaires de France, 1999.
———. “Discours juridique et perversions sexuelles (XIXe et XXe s.).” In
Famille et politique
. Vol. 6. University of Nantes, France: Center of Political Research, Faculty of Law and Political Science, 1977.
Duberman, Martin, and Ruthann Robson, eds.
Gay Men, Lesbians and the Law (Issues in Gay and Lesbian Life)
. New York: Chelsea Publishing, 1996.
Formond, Thomas. “Les Discriminations fondées sur l’orientation sexuelle en droit privé.” Doctoral thesis in private law. University of Paris X, Nanterre, France (September 2002).
MacDougall, Bruce.
Queer Judgment: Homosexuality Expression and the Courts in Canada
. Toronto/Buffalo/ London: Univ. of Toronto Press, 2000.