While I’m on the topic of gender roles, I might as well put in my two bits about Obergefell v. Hodges. As others noted, it’s the first time that holding on to classical Jewish Morality puts us in the counterculture.

I

R’ Aryeh Klapper writes (see moderntoraleadership: Chok, Mishpat and Obergefell) that I think puts a nice context on the discussion:

Imagine pre-snake Adam and Eve walking into the Jewish camp. They would not praise the Jews for their modesty, and they would have no idea why the tents’ openings did not face each other. For Bilaam to praise the Jews’ virtue, even in the context of his deep and unremitting hatred, he had to be capable of understanding that modesty was a relevant evaluative category.

What would it take for Bilaam to have this capacity? Unlike the prelapsarian original couple, he would have to be conscious of his own sexuality, and experientially aware that sexuality could be associated with shame. He might nonetheless choose exhibitionism for himself, and for his culture. He might decide that sexual shame is the root of neurosis and dedicate himself to its cultural eradication. But he would understand what he was eradicating. Perhaps there would even be moments when he regretted his victory.

My tentative suggestion is that the Torah teaches us here that there is a value in making our moral premises intelligible even to our enemies; this is part of our mission to be the light of the nations. I want to be clear that this value is not pragmatic, and that we are not safer, or less likely to be hated, if we are understood. Like Bilaam, the world may use its understanding of our virtue to learn how best to undermine us. It is simply part of our job to enable as much as we can of humanity to make informed moral choices.

I suggest further that perhaps we can understand the Seven Noachide Commandments as intended not to provide a formal code of behavior, but rather to identify a set of moral premises. Perhaps our mission is particularly to make those premises universally intelligible. Making premises intelligible is not accomplished through rational argumentation. Rational arguments depend on mutually intelligible premises. … One core premise: let us identify it with the Noachide commandment against forbidden sexual relationships, or arayot — that is no longer intelligible to many Americans is that sexuality can be evaluated in nonutilitarian terms, that a sexual act can be wrong even if no one gets hurt. We have replaced sexual morality with sexual ethics. Conversations on topics such as chastity, masturbation, and adultery are wholly changed from what they were even two decades ago, and tracts from back then can seem less contemporary than prehistoric cave art.

There are many reasons that traditional rationales in the area of sexuality have moved rapidly from self-evident to unintelligible. Here are two: (1) Effective birth control and in vitro fertilization have broken the connection between intercourse and procreation. It is no longer self-evident to speak of intercourse as potential recreation, or as inevitably associated with the risk of pregnancy. (2) Many human beings with homosexual orientations have told compelling personal stories of pain and alienation.

In the secular world, the natural reaction to a premise’s social unintelligibility is the repeal of any laws that depend on it. In the Orthodox world, where immediate repeal is rarely a viable option, one reasonable reaction is what I call “chokification,” or the declaration that laws that once depended on the now-unintelligible premise should be regarded as either beyond human comprehension or else as arbitrary rules intended to train us to obedience.

“We have replaced sexual morality with sexual ethics”. Which I take to mean Western Society has stopped looking at whether sex itself is moral, and instead asks only “who is getting hurt?

Even within the Orthodox discourse, I have seen homosexuality compared to shellfish (to pick another to’eiavah) a ritual objection not a moral one, and a “choqified” view of the prohibition rather than seeing it as rational.

II

Let me take a step toward de-choqifying arayos, or in English: to give the beginnings of an explanation of the basis of traditional Jewish views on sexual morality. Then I can start a conversation about how homosexuality doesn’t fit in.

I utilized the following “Lonely Man of Faith” (written by R JB Soloveitchik in 1965, available here) based idea to open “The Talk” with my sons. I wanted to pass on something about the sanctity of sex in their basic attitude toward it. So before getting into the biology and psychology of the discussion, I tried to open by setting a religious context.

Rabbi Soloveitchik makes the distinction between “Adam I” and “Adam II”. There are two creation narratives at the beginning of Chumash. Bereishis 1 speaks of a progress from the basics — light, sky, ground, celestial objects, fish and birds, animals, and finally humanity. Adam the First is part of creation, its pinnacle, and its purpose. He is blessed “to be fruitful, multiply, fill the earth, and conquer it. Rule the fish of the sea and the bird of the sky…” Master of all he surveys, through his science and his technology. As David Brooks recently put it (The Road to Character), Adam I pursues “résumé virtues.”

Adam I approaches marriage as a means to “be fruitful and multiply”. From this perspective, the purpose of sex is to procreate, and the purpose of a marriage is to provide a home for a child.

Adam the Second, in the next chapter, is a partner with G-d as he names the animals. “It is not good for man to be alone”, and G-d finds him another partner, a spouse. Adam II seeks redemption through such covenantal communities, and meaning in his relationships. In Brooks’s terminology, he seeks “eulogy virtues”.

Adam II’s marriage isn’t about procreating, but “and they shall be one flesh”, having a relationship with another.

As for “the talk”, I then continued by identifying a basic problem of premarital sex. It gives one practice at minimizing the bond that sex is creates. It weakens that function of intimacy, so it won’t be as effective once you are married.

Either alone — procreation or the romantic reunification of the two halves of the original Adam (which I mean psychologically, not mystically) would be sufficient reason to justify sexual intimacy. But without either, it’s the pursuit of our mammalian drives for insufficient reason. The objectification (or at least animalization) of the self.

This is an issue of morality, of creating

III

To segue back to Obergefell and homosexual marriage, one needs to believe that gender is an innate set of existential and psychological differences, and not just a role imposed by convention. And therefore Adam and Eve are distinct and different halves of a whole not just biologically, but also in terms of their psychological and sociological function. That the gender roles are an existential and deep-psychological truth, which will hold no matter how much society attempts to change those roles and bury gender differences.

We aren’t just one kind of being, separated in two in Genesis 2. The primordial Adam was split into two distinct kinds. Adam, the ish acknowledges this when he renames the ishah something totally unrelated to his own name, Chavah. Joining two people of the same sex, even of very different temperaments, does not accomplish the same completion.

We should note that gender differences are considered a “good thing” in halakhah, something we are supposed to work with and preserve. The Torah simply states, “לֹא יִהְיֶה כְלִי גֶבֶר עַל אִשָּׁה, וְלֹא יִלְבַּשׁ גֶּבֶר שִׂמְלַת אִשָּׁה, כִּי תוֹעֲבַת ה’ אֱלֹקיךָ כָּל עֹשֵׂה אֵלֶּה — A man’s utensil should not be on a woman, and a male should not wear a woman’s dress, because it is disgusting to Hashem Your G-d anyone who does these things.” (Devarim 22:5) However, the application to halakhah goes well beyond cross dressing. A man isn’t supposed to pick out the gray hairs or dye his hair to look younger (when the norm was that only women did so). A woman may not carry weaponry for war. (Nazir 49b) We are obligated to preserve traditional gender norms, So I feel justified taking them as a given.

Which would mean that — like premarital hetrosexual relations — homosexual sex fails to utilize sexuality to procreate and/or unify Adam.

If you accept basic Orthodox assumptions, I think you have to accept that some gender difference must exist because the different genders are treated differently by halakhah. What I am trying to provide is a rationale based on that given, not to prove my rationale must be true. If you do not share this assumption, then at least you will understand how my position reason and morality based, rather than being treated as a ritual choq.

Despite the social trends that brought the Supreme Court to conclude last week that traditional sexual morality (in contrast to sexual ethics) is irrational and thus prejudicial bias, an encroachment on civil rights, the above implies that the Torah’s ban on homosexuality can be explained in mishpat terms.

IV

On a different note, the shift from morality to ethics is typical for postmodernism. When all narratives are equally valid there is no way to insist there is an absolute moral code. Never mind determine what it contains.

Therefore, one encourages a freedom to act as an end itself, rather than as a means to greatness.

(Which is a logical progression from the American legal system, the concept of rights-based law taken to its extreme. It’s notable that a society that values a “maavir al midosav” would not laud taking rights as far as all that. As a legal philosophy, though, it is the best we’ve come up with to avoid “ish es rei’eihu chaim bal’o“, which is the central role of a secular gov’t, no?)

However, the lack of establishment of a common moral code is itself damaging to society. No one private violation of moral code, whatever the society holds it to be, will necessarily harm others. But living in a society that doesn’t promote morality, that doesn’t work toward aiming that autonomy toward some higher end, is harmful.