Covenant Connection

The Noahide Covenant and Male Homosexual Conduct; a Response by Rabbi Michael Katz

Many, if not most, people check that they have read the terms and conditions when entering into an online contract without having actually done so.  Their attitude is, "What can be in this contract that will create a problem?  It's just the usual legal mumbo jumbo. I just want to get whatever it is I am downloading or buying as quickly as I can."  It is this kind of thinking that keeps lawyers in business.  Covenants with G'd should be treated with much more care.
 
We speak of the Covenant with Noah, the Covenant with Abraham and the Covenant at Sinai.  A Covenant binds both parties to the terms of the covenant.  It should, therefore, be quite obvious that both parties have to be completely familiar with the terms of the covenant.
 
The Covenant between G'd and Israel requires that Israel be obedient to the commandments laid out in the Torah.  This, however, is impossible without an understanding of what these commandments require.  When G'd instructs Israel to "write these words upon the doorposts of their houses"  [Deuteronomy 6:9] exactly which words are to be written?  There must have been some sort of instruction manual that accompanied the Covenant in which the details of how to observe these commandments were laid out.
 
Deuteronomy 12:21 tells Israel that, should they want to eat meat, they may slaughter their cows and sheep in the manner that G'd has commanded them.  But a search of the Torah reveals no such commandment.  How, then, are these animals to be slaughtered?
 
These questions and many more [see http://www.aishdas.org/student/oral.htm] demand the existence of a manual.  And, fortunately, Israel preserved such a manual over the millennia. This manual is known as the Talmud.  Israel is, then, on solid ground with detailed instructions as to exactly how to observe the laws of the Torah and with principles in place that allows Israel to deal with new developments.
 
Non-Jews or Noahides are not so fortunate.  Somehow, over the course of thousands of years of history, they lost their manual.  But all is not lost as Israel held onto not only their own manual but also the manual that explained how the non-Jews would be able to be loyal to their Covenant with G'd made with Noah after the Flood.
 
Now, Noahides could very well say that they don't trust the Jews to have faithfully preserved the details of the Noahide Covenant (even though it was also the covenant that Jews, themselves, had to follow before a new Covenant was made with them.)  Fair enough, but they have no alternative.  No one else made any effort to preserve the contract.  But, because this line of thinking can lead to anarchy with many Noahide factions claiming to have the authentic manual, it became essential that all Noahides acknowledge that the manual preserved by Israel is the authentic one.  This is why Maimonides wrote that the Noahidic Covenant must be accepted because it was so commanded by G'd and transmitted to us by Moses. [Maimonides, Yad, Kings 8:11] thus accepting the chain of transmission.
 
Those who would dispense with the Talmud when considering the Noahide Covenant need to consider that, without the Talmud, they would not even know that there was such a thing as a Noahide Covenant containing Seven Mitzvot!
 
Let us now proceed to the specific commandment under discussion: that of male homosexual activity.
 
The Talmud (Sanhedrin 58a) derives from Genesis 2:24 that man shall cling to his wife and not to a male.  The question before us is to what extent does this ban on homosexual acts go.  Is it restricted to actual marriage (see Talmud, Chulin 92b, that the writing of marriage contracts for homosexual men is an expression of extreme immorality) or does it apply to sexual activity even without marriage?
 
It has been suggested that the prohibition should only apply to coercive sex and not to consensual sex.  This cannot be correct for a number of reasons as I will explain.
 
Forced sex would be prohibited under the more general principle of not causing physical harm.  We would not need a separate category for sexual sin if all consensual sex was permitted.  I would presume that whoever wishes to permit consensual homosexual sex would also permit consensual incest and adultery (in a situation where all parties are in agreement.)  The simple fact that there even is a separate category for forbidden sexual activity tells us that even consensual sex falls under the prohibition.
 
The law applies to both parties engaging in the activity. [Minchas Chinuch 209:8 and quoted in Toldos Noach 7:24]  If the man on the receiving end of the activity, so to speak, was coerced, he should not be considered at fault.  If he is deemed worthy of punishment it must mean that he was a willing partner.  Despite the consensual nature of the act, it is forbidden.
 
That homosexual marriage is specifically repugnant also indicates that the consensual versus coercive nature of the act is not an issue.
 
However, it does seem that a ban on lesser forms of homosexual activity (anything other than anal penetration) for Noahides is not clearly stated and there is some dispute in the rabbinical literature.  As is customary when the law is not clear, one may incline to be lenient.  Here is where social norms can play a part.  Noahide communities would be able to determine for themselves how far they wish to extend the prohibition.
 
In conclusion, it must be stressed that these are very serous sins that, in theory, carry the death penalty.  Those who would play with these issues applying their own logic in place of the wisdom garnered from millennia of Torah study should tread with great trepidation.
 
RMK
Miami, Florida