According to this year’s Purim shpiel at the Pardes Institute, where I serve as the Rosh Beit Midrash, there is a whole group of students who can be described lovingly but humorously as sitting at the “gay haredi ̣ table.” That jab was just one telltale sign of the number of Jews, young and older, who love Torah and mitzvot with all of their hearts but struggle to find a fully accepting space in normative Orthodox spaces. Rabbi Jeffrey Fox’s recent book, Nashim Mesolelot: Lesbian Women and Halakha – A Teshuva with Responses, is a significant step forward in welcoming these earnest Jews into the Modern Orthodox world.
Many non-straight individuals of all genders, as well as straight folks, tend to group the entire queer spectrum under the umbrella of LGBTQIA+. The politically conservative camp, including the religious world, use this broad category to create a clear opposing worldview to be denigrated and demonized, with or without justification. As a result, synagogues, communities, and Torah institutions have shunned same-sex couples of all genders, despite the fact that the halakhah is much more nuanced. As in Orthodox life generally, here too women are treated as invisible Jews, subsumed under the male norm. Rabbi Fox, in his courageous responsa (published in book form and available digitally without charge on the Yeshivat Maharat website1 and on Sefaria2 ) devotes serious attention for the first time to the unique halakhic status of female same-sex relationships. He argues that monogamous committed relationships between two women should no longer be condemned as pritzut (licentiousness); rather, in a committed relationship, they can be “understood as tzniuta (modesty) and perhaps even kedushata (holiness).” (p. 78)
Only male-male penetrative sex is explicitly condemned in the Torah. The Torah makes no comment about female-female relations. For once, the rabbinic perception that women are less vulnerable to sexual urges, as well as their general invisibility in traditional sources, presents an advantage. As Rabbi Fox points out, there are only two major Talmudic era rabbinic sources that acknowledge and condemn female-female sexual intimacy.
In the first, the verse “You shall not copy the practices of the Land of Egypt where you dwelt, or of the Land of Canaan” (Vayikra 18:3) is interpreted by the Sifra, a tannaitic book of midrash halakhah, as: “A man would marry a man, and a woman would marry a woman, a man would marry a woman and her daughter, and a woman would be married to two [men]. For this reason, the Torah says, nor shall you follow their laws.” The Talmud does not preserve this version of the tradition.
In the second source, the Babylonian Talmud relates the following: “Rav Huna said: Women who are mesolelot are unfit to marry into the priesthood. And even according to Rabbi Elazar, who said that an unmarried man who has intercourse with an unmarried woman not for the sake of marriage renders her a zona, this applies only to intercourse with a man, but lewd behavior with another woman is mere licentiousness” (Yevamot 76a).3 According to the strictest reading of this passage, female-female genital rubbing falls into the undefined (but not biblically prohibited) category of “licentiousness.” Rabbi Fox’s teshuvah effectively demonstrates the wide range of alternative interpretative traditions.
The halakhic challenge is that the Rambam, followed by the Tur and Shulḥan Arukh, combines the Sifra and Rav Huna, thus codifying the Sifra and giving gravity to a simple reading of Yevamot. Rabbi Fox’s major goal is, therefore, to separate the midrash halakhah about marriage from the Yevamot passage in order to center narrower readings of the Yevamot passage and reduce the authority of the Sifra.
Rabbi Fox is motivated explicitly by a desire to compassionately find a path for observant gay women to live full halakhic lives. And correctly so. For lesbians with exclusively same-sex attraction today, marrying a man is not a viable option. Rather, the decision these women are likely to be making is whether to live within or outside the observant world. Rabbi Fox presents them with a path forward to build an Orthodox family in a happy, loving, and committed relationship.
This book consists of a 78-page teshuvah by Rabbi Fox, written in remarkably accessible language for the lay reader, together with some 50 pages of responses to that teshuvah, five out of six of which endorse his basic conclusions. I would have welcomed having another queer halakhic voice among the responses, but now Rabbi Fox has paved the way for them to arise. Similarly, it would have been valuable to include more female voices (those are easily accessible, even without leaving the walls of my institution or his).
There are other critiques one could raise: Rabbi Fox doesn’t address the issue of bisexuality. Once halakhah permits committed same-sex relationships, does it still privilege heteronormativity? Similarly, what ceremony might be appropriate for two women given the relationship’s potential for kedushah? I look forward to these new directions of halakhic discussions that Rabbi Fox’s book may generate.
Unfortunately, Rabbi Fox’s teshuvah alone, even with the supportive responses printed in the book, may not be enough to change the Orthodox halakhic consensus. However, this courageous teshuvah is certainly a basis for shuls to hang their hats on in order to fully welcome female same-sex couples, celebrate their smaḥot, etc. Ultimately, bottom-up change is what is going to impact halakhic norms in this area. These changes are not slow in coming, even with respect to male-male relationships, which pose a much larger halakhic problem. Take, for example, Shas MK Yigal Guetta, who went to his nephew’s gay male-male wedding,4 or Rav Ovadia Yosef’s grandson, who himself married a man.5 The times are certainly changing, and as has been our tradition and imperative for millennia, it behooves the rabbinic world to deal with these issues thoughtfully.