Opening Orthodoxy: A Halakhic Case Study

Reviewing Rabbi Jeffrey Fox's "Lesbian Women and Halakha"

In 1997, Rabbi Avi Weiss coined the term “Open Orthodoxy” as a synonym (not a replacement) for Modern Orthodoxy - an approach to Judaism that “is open, in that our ideology acknowledges, considers, and takes into account in varying ways a wide spectrum of voices.” Rav Avi, as his students affectionately call him, emphasized six points of difference between his camp and the Orthodox Right:

1. Torat Yisrael - “Chemistry, language, medicine, and all disciplines are potentially aspects of Torah… there is nothing in the world devoid of God’s imprint. The way one loves, the way one conducts oneself in business, the way one eats — all are no less holy than praying and fasting… We in the Modern Orthodox camp also revere the wisdom of our great rabbinic authorities. But in non-halakhic areas their rulings are to be weighed carefully, and not to be treated as binding pesak (decisions).”

2. Am Yisrael - “chosenness is not a statement of Jewish soul-superiority; rather it defines the mission of the Jew as being of a higher purpose. As a consequence, our relationship is to reach out to non-Jews [and non-observant Jews]… For the Orthodox Right, the goal of outreach is to convince those being reached to become fully observant members of the Orthodox Right. For Modern Orthodoxy the goal is not only observance of ritual, but the stirring of Jewish consciousness, the lighting of a spiritual fire, and allowing those touched to chart their own direction. Inherent in this approach is the fundamental element of process. Even if one chooses to remain less observant, he or she is fully embraced and accepted in the Modern Orthodox community.”

3. Medinat Yisrael - “For the Orthodox Right, the State of Israel has no religious significance because the Messiah has not yet come and will not come until God wills it. Modern Orthodoxy, on the other hand, insists that Israel, the state, has enormous religious meaning; indeed, for many Modern Orthodox Jews it marks the beginning of the period of redemption… For us, the modern State of Israel is important not only as the place of guaranteed political refuge; it is not only the place where more mitzvot can be performed; and it is not only the place where, given the high rate of assimilation and intermarriage in the Diaspora, our continuity as a Jewish nation is assured. It is rather the place, the only place, where we have the potential to carry out the “chosen people” mandate.”

4. Women’s Roles - “Modern Orthodoxy does not only support women’s equality in the workplace, it also encourages women to assume a central role in the synagogue, school, and communal setting. This is manifested through women’s prayer groups, women learning on the same quantitative and qualitative level as men, and the full participation of women in the highest levels of institutional leadership. Additionally, women’s rights must be protected in cases where they are the victims of recalcitrant spouses.”

5. Pluralism: Contact with the Conservative and Reform Movements - “pluralism does not mean that the respective movements agree on every issue, rather pluralism means that each movement ought to present its beliefs with conviction, while recognizing that it is not the only one caring passionately about the Torah, land of Israel, and the people of Israel. Additionally, each movement must find a way to profess its principles without compromise, while giving dignity, respect, and love to those with whom they disagree. Finally, each movement should be open to learn from each other.”

6. Public Protest - “For the Modern Orthodoxy, quiet diplomacy is crucial, but public protest is the engine that makes quiet diplomacy work. Advocacy on behalf of beleaguered Jewish communities is crucial, and public protest, as long as it remains peaceful, comprises a significant instrument in social change.”

The attentive reader may notice that none of these six points mention inclusion of the LGBTQIA+ (henceforth “queer”) community. Indeed, Rabbi Weiss mentions the word “homosexuality” only once, in a footnote stating his “sense that the Conservative movement will soon adopt the Reform’s position on homosexuality. This watershed decision will lead to other reversals within the Conservative Rabbinical Assembly, among them being patrilineal descent.” Therefore, the main article resumes, those who find themselves too “conservative” for the Conservative Movement due to its coming acceptance of homosexuality ought to be “encouraged to identify with the teachings of Open Orthodoxy.”

By 2015, Rav Avi had changed his position on the subject. He emphasized that he does “not perform not participate in same-sex weddings, as it runs counter to my religious commitments.” On the other hand, he also “met countless gay people couples who live loving, exemplary lives… some are members of my synagogue” and adjusted his views:

I grew up being taught that the Bible regarded homosexuality as an abomination. This is the most common translation of the word “to’evah” used by the Bible to proscribe homosexual intercourse. To’evah, however, is a biblical term that has no exact English equivalent. The Talmud interprets it as a composite of three words: to’eh atah bah - “you have gone astray” in engaging in this kind of relationship. That is a far cry from an “abomination.”

Still, as an Orthodox Jew, I submit to the Biblical prohibition. But as an open Orthodox rabbi, I refuse to reject the person who seeks to lead a life of same sex love. If I welcome with open arms those who do not observe Sabbath, Kashrut or family purity laws, I must welcome, even more so, homosexual Jews, as they are born with their orientation. In fact, many heterosexual improprieties are called to’evah, in addition to violations of laws wholly outside the realm of sexuality such as cheating in business. To single out homosexuality from other biblical proscriptions is unfair and smacks of a double standard.

The 2015 article was reprinted in his 2019 book, Journey to Open Orthodoxy, with the following postscript:

Today, it is understood that being gay is not a choice, but who one is. To demand that gay people not have a life partner is, for many, akin to a death sentence. Indeed, only once in the Torah does God declare that something is “not good” - lo tov. This occurs when God proclaims “it is not good for a human to be alone.” Loving relationships is a Torah value.

While halakha limits kiddushin and nissuin (betrothal and marriage) to the relationship between a man and a woman, we must do all we can to find a way for halakha to help guide gay couples to live in loving partnerships.

Later that year, however, Yeshivat Chovevei Torah refused to ordain its first gay student after he and his partner got engaged. Relations between YCT and the queer community are still being repaired.

This brings us to the book under review. Rabbi Jeffrey Fox is Rosh Ha-Yeshiva and Dean of Faculty at Yeshivat Maharat, YCT’s sister school that trains women to serve as spiritual leaders in Orthodox-identifying communities under a variety of titles. Nashim Mesolelot/Lesbian Women and Halakha: A Teshuva with Responses (Yeshivat Maharat and Ben Yehuda Press, 2024) chronicles R. Fox’s answer to the following question: “Can a woman hold multiple identities? Can she be accepted into a traditional halakhic system that is core to her identity and proudly identify as gay? Can she be seen as a fully integrated member of the community?” The teshuva opens with noting wrong ways this question has been answered in the Orthodox world:

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 should 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.

Rabbi Fox, to his credit, only invokes the concern of human dignity at this specific point. Unlike the Conservative Movement, whose teshuva was perhaps overly focused on that subject, R. Fox’s halakhic answer, after about 80 pages, is in direct conversation with the major rabbinic voices on the subject:

First, we begin with the understanding that, according to almost all poskim, the concern of two women engaging in intimate physical behavior with each other can only be seen as a rabbinic violation. That prohibition was expanded by the Rambam, who represents a minority voice among the Rishonim.

Second, the majority position (Rashi, Tosafot, Ramban, Rashba, Ritva, Nimukei Yosef) does not cite maaseh Eretz Mitzrayim at all, nor do these authorities refer to the Rambam in any meaningful way. According to this approach, the only concerns, as clearly articulated in the Bavli, are marriageability to priests and licentiousness.

Third, even though the Shulchan Aruch codifies the Rambam’s approach, the changed reality of frum gay women serves as a push to return to the majority position of the Rishonim.

Finally, the majority position is read by a substantial group of Acharonim as referring to a case when at least one of the women is married to a man.

… The Gemara (Shabbat 65a, Yevamot 76a) twice quotes Rav Huna, who clames that mesolelot prohibits a woman from marrying a priest (or the high priest), with the express intent of rejecting that position. Rava intervenes and tells us that such behavior between two women — when at least one of them is married to a man (Aruch LaNer, Ishei Yisrael) — cannot really be prohibited but it is, nonetheless, pritzuta (licentious). 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).

R. Fox notes that there is “still a lot of promiscuity… given the history of repression and abuse, and the obstacles in the way of recognizing non-heteronormative monogamous relationships” within queer spaces, but also notes that “for those trying to live within the Orthodox world, this is not really the case.” Rather, they behave in a way “that attempts to maintain halakha in all ways” other than who they wish to spend their life with. R. Fox’s extremely well-researched and meticulously cited argument, in other words, is that even though the Shulchan Aruch codifies the strictest position on Lesbian relationships, it can be overruled by the reality that contemporary Lesbian Orthodox couples are monogamous and otherwise halakhically observant.

The book’s latter half contains responses to R. Fox’s teshuva, beginning with Rabbi Dr. Zev Farber. Farber’s inclusion in this volume is the first of several puzzling inclusions in this section of the book. He is Senior Editor of theTorah.com and “Open Orthodoxy” as whole has been much lambasted for their lack of response to his very public acceptance of biblical criticism. Rabbi Ysoscher Katz, YCT’s head of Talmud and another contributor to this volume, even publicly referred to Farber as “an apikores.” Farber’s support of R. Fox’s position as being “clearly correct” and his “endorsement” of R. Fox’s conclusion may then significantly hinder its acceptance.

Another response to R. Fox’s teshuva which may weaken its general acceptance is from Rachael Fried, the Executive Director of Jewish Queer Youth (JQY). Fried notes that lesbian relationships should present “a straightforward loophole for orthodoxy to find its way around” given that the orthodox community is generally ready to “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.” She also, however, explicitly acknowledges that the question R. Fox answers is only the tip of the iceberg:

What does shomer negiah mean when we acknowledge that perhaps not everyone identifies as the gender others assume them to be? Or that some people are not romantically interested in the gender that others expect them to be? What happens to mechitza and yichud and Jewish summer camps? These are all valid questions that we should contemplate, but we can be brave enough to be intellectually honest with ourselves. Orthodoxy has systems built based on these assumptions and admitting that those foundations might not work for everyone is scary. Feels of fear or threat are very real, but hiding under the cloak of Torah prohibition is not the answer.

But is the broader existential threat to Orthodoxy generated by halakhic acknowledgement of queer people the only reason to prohibit lesbian relationships? Rabbi David Fried thoroughly rejects R. Fox’s conclusion, under the impression that “he makes several errors in his interpretation of the sources and overreads their relevance to his halakhic conclusion. Ultimately, then, his conclusion has no real precedent and is asserted on his own authority. Perhaps if several gedolei haposkim were to concur, it could be accepted, but I suspect this is unlikely to occur as it runs counter to the halakhot and sexual ethics we find in the Rishonim.” A similar point is raised by the aforementioned Rabbi Ysoscher Katz, who felt “compelled by the arguments and convinced by the conclusion” of R. Fox yet nevertheless could not shake “the sense of its overwhelming audacity. The cost of accepting R. Fox’s psak is to negate the explicitly stated view of the Tur and Mechaber, and one that is seemingly also accepted by the nos’ei keilim.” For anyone reading this book from a mainstream perspective, these two chapters pretty much end serious consideration.

Rabbi Aryeh Klapper shares these concerns as well, while also bringing the conversation back to where Rachael Fried left it:

The hard truth is that only broadly acceptable halakhic arguments can address the pain and needs of people who wish to live in the communities that define themselves such arguments. Other sorts of arguments will leave them still outside the communities to which they seek to belong… I support Rabbi Fox’s right to assert that current halakha regarding lesbian couples is morally wrong and to continue to seek halakhic arguments that will convince individuals and communities with halakhic authority and integrity to change their practices and decisions. For the reasons set out in the body of this response, I don’t believe that his present paper is likely to accomplish this.

However, Rabbi Fox’s arguments for complete permission accomplish something very important: they make clear that Orthodoxy currently lacks a coherent articulation or account of a halakhic sexual ethic. As Rabbi Fox points out, if we permit and sometimes even encourage married women to become pregnant without sex from men other than their husbands, how can we say that the connection between marriage, sex, and procreation is inviolate?

Many similar questions can be asked – about single mothers, frozen gametes, IVF, and more. Technological advances, halakhic compassion, and realism about what restrictions the community will accept have made once-standard claims about the connection of sex to procreation, procreation to sex, procreation to marriage, and marriage to procreation difficult to sustain. What remains is a claim that the connect between marriage and sex is absolute and that the definition of marriage unchangeable despite all the other changes.

This does not mean that lenient, compassionate decisions on infertility issues etc. are wrong or should be undone. But we need to acknowledge that they have left us in ideological tatters. Until we redevelop a clear, coherent, comprehensive, and compelling account of what halakha says about sex and sexuality, the pressure to do anything and everything necessary to relieve immediately visible suffering will intensify whether or not the advocated-for measures are likely to diminish that suffering.

Fried and Klapper, in their responses, say aloud what scares so many about these sorts of conversations: Addressing queer concerns from a halakhic perspective is a lose-lose for traditionalists. If things remain presented as black and white, innumerable people within the community suffer. If things change, many areas of halakhah must change too. For those who value Orthodoxy as it is currently experienced, neither is acceptable and nothing gets done. Questions are heard, but no serious answers are offered. As Rabbi Klapper writes, the job of the halakhic decision maker becomes "to minimize the number and severity of injuries while maintaining the law because loss of the law will cause greater harm than the law causes… we cannot blame the victims of the law. Rather, we must do all we can to mitigate its negative effects on them.”

Here is where another of the book’s questionable inclusions comes into play. Rabbi Aviva Richman is one of the roshei yeshiva of Hadar, a “Halakhic Egalitarian” institution which is explicitly non-Orthodox, but heavily catering towards “expats” from Orthodoxy. She notes that there is much missing from R. Fox’s analysis. In noting this, R. Richman pens a scathing critique of R. Fox’s entire project, showcasing clearly and compellingly how even the left-most edge of Orthodoxy will never be able to fully address these sorts of questions:

R. Fox clearly thinks that something has changed in how to approach sexuality and marriage in contemporary times but does not get into what he means. Is he referring to shifting understandings of sexuality within Modern Orthodox feminist Jewish communities? Is he referring to widespread acceptance of LGBTQ marriage in the United States of America, which, to be sure, is not a unanimous cultural reality? If he is referring to a wider American approach to sexuality, why wouldn’t that be considered external to Jewish culture as maaseh Eretz Mitzrayim? What are the Torah sources and values that he sees as driving a “new reality” that would affect the way our interpretation of halakha should approach two women marrying? He leaves all of this up to the reader, and I find this to be the most important lack in the piece. One is left with a bit of the feeling… that the main work that needs to be done is not here.

… Beyond the buried arguments and sloppiness about historical understandings of sexuality, a major concern I have about this teshuva is the overall framing. Once the question begins from assuming that there is a prohibition of female-female sexuality and then tries to ascertain the “objective” level of severity of that issur, there is already a losing battle for the subjectivity of someone who identifies as lesbian who wants to understand her place within halakha. The framing here assumes that female-female sexuality is a problem and then focuses on how much of a problem it is. I wonder how the process of halakhic research and writing can itself place the questioner’s subjectivity front and center and contribute to their sense of being within the halakhic conversation rather than being discussed as a marginal case and a “problem.” I would hope that anyone who asks a halakhic question about their sexuality could expect that the response not primarily be about solving a halakhic problem that ideally would not exist. Instead, their sincere halakhic question should become a locus for more deeply understanding the intersection between halakha, sexuality and marriage, both for the individual and for the halakhic community writ large. A response focused on objectively trying to determine “how forbidden” female-female sexuality is will not do that work. The framing must get much more deeply into the substantive issues animating the case in question.

Perhaps the most important (but also somewhat buried) conclusion R. Fox offers in this regard is that the Talmud, and the entire halakhic canon based on it, is not speaking to two single women and only addresses female-female sexuality when it is within the framework of marriage to a man. It speaks to men, not to women. Mostly it speaks to husbands who have concerns about their wives’ sexuality. In some ways, this lacuna is freeing: it eliminates the applicability of the halakhic prohibition in the case of two single women who want to get married. In other ways, it is devastating: the message to the lesbian woman is that halakha does not see her; it is not speaking to her reality. The only way to view her sexuality and marriage without the assumption that it is “problematic” is to conclude that it is entirely off the radar of halakha. This hardly leads to a sense of a religiously grounded approach towards sexuality, marriage and family for two women whose lives are otherwise fully anchored within halakha.

Using Rabbi Ethan Tucker’s model for left-handedness as a framework for addressing these questions, R. Richman suggests a complete reframing of the core principles:

It does a disservice to halakha and to religious people’s experience to approach the material and analysis R. Fox brings to the table merely as the discovery of a kula (leniency) that establishes freedom from an halakhic stricture such that halakha has no more to say about female-female sexuality. The content surfaced through his analysis brings to our attention many fundamental aspects about the nature of sexuality and partnership that can be a source of learning for all Jews. When is sexual behavior pritzut and when is it tzniut? What kinds of sexual relationships are a toevah and why? What halakhic sources speak to the importance for everyone to have the option to pursue meaningful sexual intimacy and raise children in the context of a partnership that is conducive to happiness?

… Along these lines, I would center a more holistic halakhic approach by asking the following questions that center a lesbian woman’s experience and perspective: What sources in halakha address the importance that women be able to enter into marriage that is conducive to happiness and to creating the context for a positive relationship to Torah, mitzvot, and Hashem? Can we reinterpret and move beyond language that is centered around the male imperative to marry and have children so as to clarify how these imperatives apply to women? What language do we find about the importance for individuals to have/raise Jewish children in a context that will be embedded in love and care rather than deceit and frustration (which can arise if someone not attracted to a man thinks their only option is heterosexual marriage)?

R. Richman concludes her response to R. Fox by noting an important point about this entire discussion:

There is a delicate dance between the role of a posek as ally who helps establish trust in the halakhic system and the role of a person who has a particular identity getting to be in the driver’s seat as the full subject who sifts through halakha seeing what they find resonant for themselves. Sometimes people with a marginal identity need someone else who feels more comfortable and with expertise inside halakhic material to get into the trenches and do the interpretive work so that they can trust that it is possible to engage halakha at all. But there are also limits to what an external view can bring to the table. Some of the most creative work about female-female sexuality in halakha will likely emerge as women who are attracted to women do their own meaning-making and trace the pathways that feel most accountable to halakha and to their lives.

This idea is no-doubt true. At some point, it has to be understood that no heterosexual cisgender posek can sufficiently understand what it is like to be lesbian, gay, asexual, or the like. This is the same reason that baalei teshuvah typically prefer asking questions that are relevant to their experience as people who did not grow up Orthodox to rabbonim who share that experience. For that matter, it’s the same reason that Modern Orthodox Jews typically prefer asking halakhic questions to Modern Orthodox rabbis and Conservative Jews prefer asking Conservative rabbis. Even if one assumes that a competent rabbi can put themselves in the questioner’s shoes, answers hit truer and are more relatable when they come from someone who shares the questioner’s frame of reference.

This is all the more so given that queer people rarely ask rabbis for permission or forgiveness in who they are. Their existence in the community is taken for granted, with the only question being which spaces will accept them. As R. Katz mentioned in passing, such individuals “are not asking to justify their choices or to provide a green light for the way they live and with whom they partner. That is a forgone conclusion. They are merely turning to us to see if there is room for them in the Torah-true observant community.”

This is pointed out, too, by the Eshel’s Founder and Executive Director, Myriam Kabakov in the volume’s final contribution. That R. Fox wrote his teshuva without a direct questioner, she writes, “points directly to the fact that the implied questioners have already given themselves the answer. Modern Orthodox lesbians are, generally speaking, not asking permission simply to exist as themselves these days… they have no need for pages of Talmudic precedent to prove that their sexual identities are legitimate.” In her conclusion, Kabakov embraces an answer quite similar to R. Richman:

there is an uncomfortable dissonance between the traditional methods of halakha, on the one hand, and the appropriate way of thinking about Orthodox LGBTQ+ Jews, on the other. Although the usual halakhic approach will serve us when we need and seek answers on many topics, it will not yield a regard for the humanity and dignity of LGBTQ+ Jews. Orthodox leaders will not find the answers they need for how to include and serve all of their members by turning to the halakhic sources. Instead, they must start from a different place: from the seifa, as it were… Starting with a meta-halakhic commitment to the whole person, and the whole community they serve, rabbis will be able to undertake a whole new process of determining halakha when it comes to matters of personal dignity.

The book as a whole thus ends on an odd note. It is written from an Orthodox perspective, yet it both implicitly and explicitly argues against Orthodoxy’s inherent ability to adequately service the queer community. The book ends, in fact, with strong pushes to completely upend the very process that makes Orthodoxy what it is.

Of course, not every contributor shares those positions. Rabbi Fox certainly sees himself as operating within a normative halakhic framework and nowhere in the responses of Rabbis Fried, Klapper, or Katz implies agreement with their more extreme co-contributors. Of those three, though, R. Klapper does not believe that R. Fox’s argument will find sufficient acceptance, R. Fried offers a thorough and catastrophic critique of some of R. Fox’s most essential arguments, and R. Katz acknowledges that R. Fox’s teshuva effectively uproots majority halakha. One might find, then, that the book is self-defeating from both directions.

In finishing the collection, the reader is left a clear conclusion: Rabbi Fox’s teshuva might (or might not!) be a fine starting point if one accepts his arguments but work on the subject will not be complete until the Orthodox halakhic process itself is overhauled. Surely, as R. Fox’s teshuva and several of the responses make clear, it is possible to address these issues within a normative halakhic context. But the inclusion of responses arguing against that very process, both in the book and on Maharat’s website, remains as striking as it is puzzling. This is made all the more confusing given that Rabbi Dr. Daniel Sperber’s book on women in rabbinic positions was also co-published by Yeshivat Maharat and also included a staunchly Halakhic Egalitarian voice arguing strongly against Orthodoxy’s normative process. Whatever the reasons for these inclusions, the pattern is impossible to ignore.

What is also impossible to ignore is the fact that queer people exist and want to find a home within Orthodox communities. Some are fully public in their identities while others remain in the closet. Some, I can say with certainty, are currently working within the Orthodox rabbinate. This is not new, and these people are not going anywhere. So whether one accepts Rabbi Fox’s conclusions on this particular subject or not, we must ask ourselves how we can best welcome those who want to be part of our community. His teshuva is an excellent start, in that it forces the community to grapple with its repercussions. Willful ignorance, on this subject, is simply no longer an option.