Phyllis A. Bird writes in "The Bible in Christian Ethical Deliberation concerning Homosexuality: Old Testament Contributions," that "debate is a constituent feature of the biblical canon, reflecting its origins in the conversation of a community over time...That conversation spans a millennium in its recorded memory, but it does not end with the last canonical writing, it continues today.” Bird's views in the work were inspiring to Robert A.J. Gagnon, so much so, that he addressed them in his 2001 book The Bible and Homosexual Practice and again in a 2005 article "The Old Testament and Homosexuality: A Critical Review of the Case Made by Phyllis Bird." Gagnon concludes that "it would appear to be very difficult to discount in contemporary religious debate the OT's strong negative witness regarding homosexual behavior." Gagnon presents some interesting discussions but fails to take into account some possible effects of political, social, and cultural events of the time. I feel that I must enter into the debate of Bird's biblical cannon with a response to Gagnon's review of Bird's work. I contend that, with particular respect to Deuteronomy and Leviticus, that The Torah‘s, or to Bird and Gagnon, The Old Testament‘s, negative witness regarding homosexual behavior is far easier to discount than Gagnon believes.
Despite a cultural bias against homosexuality, I propose that the original Levitical and Deuteronomic references were a response to cult practices and an effort to maintain social and sexual order. When these acts did not go away with the dismantling of cult practices, the social disapprobation combined with fear of a resurgence of the cult to engender a redaction of the first Levitical prohibition to stifle the activity.
It is a popular belief that Leviticus 18:22, , is tied to Deuteronomy 23:18. Deuteronomy 23:18 forbids bringing a male or female cult prostitute into the Temple. Leviticus 18:22 states that “and a male, you shall not bed the lyings of a woman, it is abhorrent.“ The “abhorrent” is, in Hebrew, תועבה. In both of these verses, the word תועבה is used to describe the proscribed practices. According to Bird, תועבה does not signify an evil act, but rather “serves to characterize practices as incompatible with Yahwistic practice.” The description is “common in late Deuteronomic. texts....where it carries connotations of foreign/pagan cultic practice.” Gagnon does not refute the presence of male Temple prostitutes, but he insists that the prohibition of them has much to do with their homosexual acts.
“When the biblical authors rejected homosexual cult prostitutes- and surely not just because they were connected to Asherah, as the epithet “dogs” indicates-they were in effect rejecting the whole phenomenon of homosexual practice.” Gagnon fails to take into account the drive toward monotheism and removal of Asherah as a separate identity from יהוה. It is more probable that the biblical authors primarily supported the removal of קדים because of their connection to Asherah and that the "whole phenomenon of homosexual practice" picked up a heavier negative connotation from the outlawing of the קדים. Coupled with the cultural idea of emasculation of the passive participant and it’s incipient threats to the societal role of masculinity, it is easy to see how bias against the activity could grow out of proportion to it’s occurrence.
If the culture rejected "whole phenomenon of homosexual practice," why wasn’t it outlawed before. Bird observes that, from verse 22’s position in chapter 18 of Leviticus, “it appears that male homoerotic activity was not viewed as threatening to male interests in the family...in contrast to bestiality, which is treated in both of the older law codes.” Gagnon responds with the possibility that "Deuteronomic law crystallized in a period when the only type of homosexual intercourse practiced in Israel was in the context of cult prostitution and even then only rarely." Gagnon overlooks the simpler explanation that private homosexual activity, due to it’s rarity and private nature, did not concern D. With the cultural bias against homosexual activity, an understood “Don’t ask, don’t tell” arrangement would have been sufficient to minimize homosexual displays, when combined with the social prejudice. In this argument Gagnon again ignores D’s primary concern of eliminating threats to יהוה.
The “dogs” epithet was transcultural and international. Gagnon places too much emphasis on it’s negative connotation. Such terms may last long after the original connotation of the word has changed. Additionally, the term could have arisen from the actual sexual positions of the קדים, the modern “doggie-style” rather than as a comment on status. Either way, Gagnon makes the colossal leap of assuming that the rejection of the קדים could not have come solely due to their Asherah connection. Surely a culture shifting toward monotheism and surrounded by polytheistic cultures would feel more threatened by acolytes of a competing idea of God than by the sexual activities performed by a minority of the population.
“Yahwism rooted out, as a matter of principle, those elements in her religious ideas which had become infected with...the fertility-ritual“ and “the sexual rites that were it’s issue.” Scholars reason that much of these portions of the Bible were “to set out...the idea that the rites practiced...must disappear along with ...other forms of religion, and that the only sanctuary should be the Temple at Jerusalem.” This reconciles easily with some biblical scholars’ consideration of the Priestly Code as an alternative to the JE epic designed to promote centralization of the cult in Jerusalem and Aaronid supremacy. Gagnon also takes exception to Bird’s characterizing תועבה as “applied only or even primarily to antiquated notions of ritual purity.” תועבה is, in his words, ”generally applied to forms of behavior whose abhorrent quality is readily transparent to contemporary believers.” I view this comment as an appeal for the dubious “natural reaction of disgust” that religious fundamentalists describe as engendered by the idea of male homosexuality and I find it beneath one of Gagnon’s scholarship. In all of the sexual prohibitions in Leviticus 18, which are described, as a group, as תועבה in verse 26, only in the verse mentioning sex between males is the word תועבה repeated. Surely Gagnon does not imply that contemporary believers find sacrificing their child to Molech (verse 21) as less abhorrent than anal sex.
Bird view is that "the two lists of sexual prohibitions within the Holiness Code (Lev. 18 and 20) point to changing views of sexual relations in response to social, political, and religious conditions." One possible reason for the new law: Patrilineal inheritance of the land. “If their system of land tenure fails..., the ‘sons of Israel’ will find themselves to be landless.” While Leviticus 18 was written, the focus was surely to prevent threats to יהוה and the Temple. Afterwards, the perceived threat to population of the land could have created the perceived need for redaction. This is supported by Milgrom, to whom "the basis for the ban....is the need for procreation."
While there were Temple Prostitutes, homosexual intercourse, by it's rare nature and the societal pressures for its participants to, in addition, marry and maintain a family posed little threat to the family structure. Only later, after קדים were outlawed, did H redactors include the death penalty and both participants. It is probable that the newly unemployed קדים, as well as their clients, may have continued the activity outside of the cultic boundaries. Without קדים, the continued occurrence of homosexual activity could have confounded the H writers. It is believable that they, being heterosexual could not conceive of a man choosing to have male-to-male sex for any reason other than the cultic purposes. If the law as written was serving it's purpose of preventing cultic prostitution, but the continuing homosexual activity masked this, it would have encouraged the writers to redact the prohibition to include both participants as well as to include a greater penalty. Bird supports the idea that Chapter 20 is from a later redaction of Chapter 18, writing “The two lists of sexual prohibitions within the Holiness Code point to changing views of sexual relations in response to social, political, and religious conditions.” Gagnon himself allows for the possibility of Chapter 20 as a separate creation: "Some distance may be placed between the two chapters, assigning the latter perhaps to a period when the social nucleus in ancient Israel shifted from the family to the community and then to the state."
Gagnon makes an issue regarding the low status of the קדים and the Near East's propensity to allow men of different status to engage in coerced sex. His response to the question "Why not permit...high-status men to coerce sex with low-status men...?" completely ignores the threat to masculinity. The implied threat is not to the status of the individual, at least not the greatest perceived threat, but rather to the status of all males. If a male is allowed to be dominated sexually, then males can be dominated. It removes the quality of being inviolable from "maleness." In a culture so concerned with masculine dominance, this threat held enormous magnitude. Even today the threat remains. The same cultures where machismo is elevated have the lowest incidences of open homosexuality. The current "Down-Low" phenomenon exemplifies the continued existence of this trend.
The world’s first out Orthodox Gay Rabbi, Stephen Greenberg sees this threat to masculinity as the impetus to the bibles regulations of homosexual behavior. He compares the laws in Leviticus to Deuteronomy 22:5, where men and women are prohibited to wear clothing associated with the opposite sex. “It seems more likely that the two prohibitions, cross-dressing and male homosexual relations, are both abominated because they both threaten gender-role identity.” Male-to-male sex threatens up-ending of the social sexual order. “If the great male-female divide is at stake, if the acting-acted upon dichotomy is debunked, then everyone is affected. Male sexual intercourse then becomes not only a grave personal sin, but also a collective threat.”
Other scholars agree that the Levitical laws are used to maintain the position of males and females within the social structure. Gagnon argues that “it is evident that gender differentiation, not status differentiation, took precedence.” According to Gagnon, "it puts another male, at least insofar as the act of sexual intercourse is concerned, in the category of female rather than male. It is nothing short of a rebellion against the way in which God made humans to function..." His comment on the way that God made humans to function immediately brings to mind the modern existence of those males unable to achieve an erection in a heterosexual context. They obviously were not "made to function," by God, in this way. Gagnon admits the danger of male-to-male to the sexual order, but he misses the fact that, in Israelite society, Gender differentiation is status differentiation. Few argue the difference in religious and social status of ancient Israelite man and women.
According to Greenberg, “intercourse...confirms the hierarchy and reifies the difference between men and women...If being the recipient in intercourse makes a woman into a woman, then it makes a man into a woman.” I take this argument a step further. If the casting down in the social order can be done to one man, it leaves the door open for all men to be degraded. Homophobia stems from this idea. In modern parlance, individuals refer to Homophobia as individuals afraid to be propositioned sexually by homosexuals. The actual fear of homophobes is in being perceived, themselves, as homosexual. This represents a far greater threat. If a male is homosexual, then he holds the status of a woman, much lower than the male status to which he is entitled. “The ‘normal’ male in our social formation...is engaged in a constant project of demonstration to himself that he is not queer....This is quite different...from socialization in a society where it is assumed that men do desire other men but it is forbidden to do anything (or some things) about that desire.”
Greenberg insists on new translations of the sexual words from the prohibitions. The Hebrew words for “the lyings of a woman,“ משכבי אשה, are not found elsewhere in the bible. There is an instance of משכבי זחר, but not the corresponding משכבי אש. In his new translation, “the lyings of a woman” takes on an intention for humiliation. Why then was this not clear in the original text? He ascribes this to the lack, at the time, of the writers’ ability to perceive women being penetrated as demeaning. According to him, “there is simply no way to speak about the sexual penetration of women in intercourse as potentially humiliating and demeaning in cultures where women are beneath men in the hierarchy and where, by their station in society and in the creation itself, they are made to be mounted and penetrated.”
Some use the creation stories, women’s creation, and their function as mothers to justify anti-homosexual bias and interpretations. I contend that, were the problem with "homosexuality," even if unknown as a concept, then lesbian sex would have been addressed. The lack of reference to female-female sex not only serves as evidence that preventing homosexual, in it's modern sense, mingling was not a dominant priority, but also that, in many ways, those acts of women which didn't directly affect men fell below the radar of inclusion in the canon. Gagnon himself must admit that the condemnation is not applied to lesbian intercourse. "It could be taken for granted that Israelite women would go on to marry men, regardless of what experimentation took place with other women before marriage. Female -to-female eroticism would thus constitute no danger to Israelite family structure. With the modern understanding that Homosexuality is not “catching,“ as well as the less prominent emphasis on procreation, this seems to support the inclusion of prohibitions against male-to-male sex for reasons unimportant in the modern world.
While modern religious authorities disavow, with varying force, the sociological factors of biblical authorship, the existence of said factors can be applied to why and in what form the laws were included in the Torah. A living document must be interpreted through a current lens. Therefore, modern understandings of homosexual nature, combined with an understanding of the culture in which the Torah was given lead the way for a more welcoming interpretation of the Torah’s treatment of consensual, non-idolic homosexuality. It only waits for modern religious authorities to take on the task.