By Ira Sharkansky
JERUSALEM — The linkage here between guns and homosexuals does not refer to the killings in an Orlando gay club by a Muslim who appears to have been gay, anti-gay, and a religious fanatic.
That combination presents its own puzzles, but the discussion here is about something different.
This note might also be seen as “off the wall” by virtue of linking things that are not related. However, they are related in ways that touch much else in modern society. At issue are the knotty problems of law, interpretation, and implementation.
Virtual freedom of gun ownership in the United States is said to be enshrined in the Constitution.
The condemnation of homosexuality is said to be enshrined in the Torah.
The linkage is that both issues are somewhere close to the top of the sensitivity scale, but neither is so clearly enshrined as activists insist.
The Second Amendment to the US Constitution is actually less clear than is the Torah about homosexuals.
The Amendment reads
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
There is a long record of legal commentary claiming that the emphasis of that Amendment is on “a well regulated Militia,” that it refers to the National Guard, and that the people who can keep and bear arms is not specified.
If the Supreme Court could read racial integration into the 14th Amendment (against a precedent that enshrined separation)–leaving aside here the equally knotty issue of “equality”–then the Court could also find enough wiggle room in the Second Amendment to allow national legislation limiting the sale and ownership of weapons.
What keeps that happening is more political than legal. It ain’t gonna happen anytime soon. And not anytime soon can mean a very long time.
Leviticus 20:13 seems clearer on the subject of homosexuality
אִישׁ אֲשֶׁר יִשְׁכַּב אֶת-זָכָר מִשְׁכְּבֵי אִשָּׁה תּוֹעֵבָה עָשׂוּ שְׁנֵיהֶם מוֹת יוּמָתוּ
A conventional translation is
If a man has sexual relations with a man as one does with a woman, both of them have done what is detestable. They are to be put to death
How this impacts on Israel, and more generally Jews, is at least as complicated as how the Second Amendment impacts on Americans.
On the one hand, there is considerable State and Local regulation of guns in the US that squeaks through courts concerned about the Second Amendment.
There’s also a lot of political pressure limiting those regulations, and working against any extensions of controls.
Americans argue the rights and follies, about the capacity of guns to protect more than they threaten. There are stories about guns used successfully against criminals, and stories of guns used by children and untrained adults that kill or injure the innocent. The US leads developed countries in the incidence of death by gunfire outside the realm of warfare. However, the numbers are dicey, and perhaps two-thirds of US deaths by firearms are suicide.
In the absence of more civilized ways of ending an unendurable life spreading from a handful of states, the opportunity for a quick if messy suicide may be the most justifiable reason for keeping the Second Amendment pretty much as it is.
Israel’s regulation about gun ownership if fairly clear. One requires a license to own a gun and to purchase ammunition. Both are severely limited to those who meet requirements of need, training, and emotional fitness. Criminals evade those laws like they evade other laws, but the dangers and casualties are a fraction of what Americans endure.
The issue of homosexuality is more muddled.
On the one hand, Israeli law and authorities are pretty much free of the religious constraints apparent in the Torah. The IDF has avoided the US military’s efforts to be politically and religiously correct with Don’t ask, Don’t tell. Known homosexuals have reached high rank in the IDF. Public and private employers provide spousal benefits to partners of the same sex. Same sex couples cannot marry in Israel, but can be registered as married if the ceremony is performed in a country where it is legal.
It may not be easy for a same sex couple to persuade a religious clerk in the Interior Ministry to register their marriage, but the law is on their side.
Research indicates that homosexuality and lesbianism appears in all populations, with those having strong religious affiliations most constrained about admitting it. Orthodox and ultra-Orthodox individuals in Israel have “outed” themselves, but the constraints are strong in those communities.
Currently the media, politicians, and rabbis are wrestling with the subject, due to a rabbi who has been head of a yeshiva working with the IDF, who spoke out against the “abomination” of homosexuality, and advocated retraining to “normality.”.
A cartoonist for Ha’aretz was quick to respond. He portrayed the rabbi pointing to a shapely and barely clad young lady to a group of men under the flag used by gays, in a military post labeled “Camp for Change, under the Management of Rabbi Yigal Levenstein.”
Rabbi Levenstein has been condemned by a wide range of Israelis, including Orthodox rabbis and Naftali Bennett, head of the Jewish Home, the party of Orthodox settlers. The IDF began procedures to limit the Rabbi’s access to soldiers, and perhaps to end the IDF’s relationship with his Yeshiva. Other Orthodox Rabbis signed a petition that was less explicit in condemning homosexuality than in supporting Levenstein’s capacity to express his interpretation of religious law.
Despite Leviticus, religious law is not so clear on the issue. From the time of the Talmud onward, religious law has respected the laws of the state where Jews live as well as the laws of the Torah and rabbinical interpretation.
So if the State and the IDF are not bothered by homosexuality, lesbianism, bis-sexuals or transgenders, rabbis might say that they are abominations in the eyes of the Torah, but go along with them under the umbrella of religious law (הלכה).
The commotion about Rabbi Levenstein occurred under the shadow of Jerusalem’s annual parade by gays, lesbians, bi-sexuals and transgenders..
Last year’s parade in the Holy City, where a third of the Jewish population is ultra-Orthodox, saw an attack by a knife-wielding ultra-Orthodox man, who killed a teenage girl and injured several others.
This year’s parade attracted 25,000 marchers, compared to 5,000 last year. It came along with the secular mayor expressing his support for the parade, but saying that he would not march, out of respect for the sentiments of those opposed. The police assigned considerable people power to protect the marchers, and took some 30 potential troublemakers into temporary custody.
No one should expect an early resolution of America’s gun problem, or Jews’ (or anyone else’s) controversies about sex.
Both issues are somewhere on the borders of law and politics, and both arguably show that politics prevails. Politics affect the drafting of law and the selection of judges. The latter is explicitly political as in the US, and affected more subtly by bureaucratic politics in Israel and other countries that claim to have “professional” justice as opposed to the populist American variety.
The issue of politics in the creation of the Torah is more subtle. The Orthodox doctrine is that it came from God. Scholars, including many who are religious, concede that it came from a variety of hands, includes many perspectives, and that it’s vagueness and contradictions require interpretation. While the Torah seems clear about homosexuality, issues of lesbians and transgenders are not apparent in the text. And the Book of Samuel, only slightly less revered, suggests that no less a figure than David may not have honored the Torah, on the matter of homosexuality as well as on other issues.
As always, comments are welcome, including from those hard pressed to see the connection between American guns and Israeli homosexuals.
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Sharkansky is professor emeritus of political science at Hebrew University. He may be contacted via ira.sharkansky@sdjewishworld.com. Comments intended for publication in the space below MUST be accompanied by the letter writer’s first and last name and by his/ her city and state of residence (city and country for those outside the United States.)