In the Tradition...Sort Of

Matters of Life and Death: A Jewish Approach to Modern Medical Ethics.
By Elliot N. Dorff.
Jewish Publication Society. 456 pp. $34.95.

The fact that the now regular advances in biomedical technology affect the lives of everybody in our society in new, unprecedented ways has made biomedical ethics a conversation in which many different voices are striving to be heard. Philosophers want to be heard in order to show others that theoretical ethics offers clarity and direction for dealing with real moral dilemmas. Theologians want to show others that their religious traditions speak to the concerns of the present. Jewish theologians are no different. Indeed, Jews have a special historical need to show themselves and others that the Jewish tradition can thrive outside any ghetto of time or place.

Elliot N. Dorff is rector of the University of Judaism in Los Angeles, a long time member of Conservative Judaism’s Committee on Jewish Law and Standards, and an official representative of Conservative Judaism on a number of U.S. government commissions––which is to say he is a leading philosopher and theologian of that major branch of contemporary Judaism. In this book, he addresses a variety of important issues in biomedical ethics from his standpoint within Conservative Judaism, a standpoint which, as he candidly notes, is sometimes not that of other members of his community.

Dorff is on top of both the classical Jewish sources with their modern interpretations and the vast biomedical and legal literature, yet he is epistemically humble. He does not presume to present the Jewish point of view, which, because of Judaism’s current fragmentation, is not something anyone can honestly pretend to do. Dorff hopes to persuade his fellow Conservative Jews to accept his specific conclusions, then persuade other, non-Conservative, Jews to accept his Conservative approach to the Jewish tradition because it offers a better interpretative application of the tradition as a whole than do the Reform or Orthodox alternatives. Finally, Dorff hopes to persuade morally serious non-Jews that some of his interpretations of the Jewish tradition offer rationally cogent guidance for them.

On many issues, Dorff’s approach has firm grounding in the Jewish tradition. He uses the classical sources skillfully and clearly shows just how, and often why as well, those committed to the Jewish tradition must be opposed to practices that many others in both the Jewish and non-Jewish worlds have accepted as morally valid. Thus, in his treatment of abortion, he states that “by and large the Jewish tradition prohibits abortion.” This is stated in the context of a discussion of the various dispensations from this prohibition when the life or health of the mother is at stake, dispensations that could justify only a very small percentage of the abortions in our society. The Jewish tradition is essentially pro-natal, a position Dorff suggests needs emphasis now when the Jewish birthrate is so dangerously low. Dorff courageously takes this stand against the dominant position of the laity in Conservative Judaism, most of whom follow the current liberal position that abortion is a woman’s right, subject to no moral restrictions.

Dorff takes another nuanced, traditional, yet courageous stand on the question of euthanasia (and the related issue of physician-assisted suicide). While recognizing situations where futile extensions of a terminally ill human life are to be avoided, Dorff makes it clear that “according to Judaism God created and therefore owns the entire universe, including each person’s body, and we therefore do not have the right unnecessarily to destroy or damage God’s property.... We each have a fiduciary responsibility to God to preserve our life and health.” Many Conservative Jews, by contrast, see their lives as theirs to do with as they choose, again without any moral restrictions.

Yet, in puzzling fashion, Dorff abandons his traditionalist reasoning when he gets to the subject of human sexuality, specifically homosexuality. Dorff argues that the ban on homosexual acts, male or female, should be abrogated on “moral grounds.” This is a truly radical position, since Jews have always understood the ancient ban on homosexual acts as scriptural in origin, hence immutable. Lifting the ban would be what the rabbis called “uprooting a whole body from the Torah”; no Jew who hears the Torah read in the synagogue could possibly think it valid Jewish teaching.

Indeed, a Jew is supposed to die rather than perform a homosexual act, a stricture that applies to almost no other transgression. Furthermore, the prohibition of homosexual acts is one of the seven “Noahide” commandments, those acts that are considered binding on all humankind. As another talmudic passage notes, even the decadent Romans were not so decadent as to formalize homosexual unions, something that Dorff suggests modern Jews ought to do. While certain other scripturally based prohibitions-those pertaining to bastards, for example––have been qualified by subsequent tradition, no one in the Jewish tradition has ever tried to qualify the prohibition on homosexuality, let alone question its validity. It is not too much to say that as far as the Jewish tradition is concerned, it would be easier to permit a Jew to eat pork on the fast day of Yom Kippur than it would be to permit a Jew to engage in a homosexual act. This prohibition, like that of idolatry, is exceptionless. As the Dorff of the other chapters might argue, the same God who tells us what we may do and not do with our lives also tells us what we may do and not do with our genitals.

Rabbi Dorff knows this as well as any other Jewish scholar. Yet he is relentless in his opposition to this prohibition and all its ramifications. At this point, one must raise questions not only about his grounds for radically deviating from the Torah and its tradition on this issue but, more basically, about the adequacy of his general theological position.

In explaining why he views the ban on homosexuality as immoral, Dorff writes that it is “downright cruel.... I, for one, cannot believe that the God who created us all produced a certain percentage of us to have sexual drives that cannot be legally expressed under any circumstances. That is simply mind-boggling––and, frankly, un-Jewish.... It is Christian to see human beings as endowed with urges that should ideally be forever suppressed.”

It is necessary to unpack this highly charged statement in order to show why this part of Dorff’s book is so objectionable on both theological and philosophical grounds.

To begin with, Dorff seems to think that our sexual orientation (experienced as our “urges”) is something indelible, and that any attempt to suppress it or change it is either impossible or destructive of one’s personhood. It is, in his view, like not letting a left-handed person use the left hand and making him use the right hand instead. Along these lines, following the famous 1973 pronouncement of the American Psychiatric Association (to which he ascribes more authority than he does the whole Jewish tradition on this point), Dorff refuses to consider homosexual orientation as a disease that ought to be subjected to therapeutic intervention. (The vaguely defined condition known as “homophobia” now seems to have replaced homosexuality as the disease to be treated.)

To say that homosexuality is biologically indelible is to deny a fundamental teaching of Judaism about the normal prevalence and power of free choice, which Maimonides argued is the human presupposition for being addressed by commandments at all. For traditional Judaism, the possibility of choice requires cultivating proper virtues and character traits. God does not give commandments that rational persons cannot keep.

All the arguments Dorff makes for permitting homosexual acts could be made in cases of alcoholism, drug addiction, indeed any compulsive state of human being that gives the person suffering from it and acting on it immediate pleasure. The difference is that in Dorff’s social milieu active homosexuals now seem to be socially acceptable, whereas alcoholics and drug addicts are still sent to psychotherapists. But a Judaism that accepts homosexual unions and is even willing to formalize them is so far removed from historic Jewish culture that it is doubtful it can survive with its Jewish identity intact. That is a question Dorff’s fellow Conservative Jews need to ask themselves when reading this book.

Dorff’s alleged opposition between Judaism and Christianity on this point is also questionable, since Christian sexual morality is rooted in Judaism. That being the case, one might as well blame traditional Christian opposition to homosexual acts (and compassion for those suffering homosexual desire) on the Jews. It is often argued that Christians have based their sexual norms on a severe body/soul opposition that reflects the unfortunate influence of Platonic dualism. But Judaism has also been heavily influenced by Platonic dualism, which shows itself in the two main forms of medieval Jewish theology: Maimonidean rationalism and kabbalistic mysticism. One should not dismiss traditional norms because one does not agree with some philosophical explanations of them. The rule always has priority over what is inferred to be its reason. As the Talmud puts it, “We do before we fully understand.” The task of theologians is to think of better reasons than did their predecessors for observing the commandments.

Dorff’s remark about Christian moral teaching could imply that being Jewish is essentially being not-Christian, and that everything Christians believe Jews should disbelieve. The fact is that Jews and Christians have great theological differences (fundamentally about Jesus); their differences are neither philosophical nor ethical. To locate differences at the wrong level is to commit a most serious category error.

One sees why Dorff has gotten himself on a collision course with the Jewish tradition on sexuality when one looks at his theological premises, which he sets forth (too) briefly in an appendix at the very end of the book. He writes, “Religions create communities committed to their ideologies....These features make religion a powerful and popular way to speak about reality and to guide important decisions of life.” Dorff’s problem can be seen in his choice of the word ideology. It is a very modern word, and as Leo Strauss taught us, “ideology” is what falls between theology and philosophy. It is arbitrarily constructed, not intending nature as does philosophy, and not intending revelation as does theology-and thus lacking the strength of either discipline.

It is because of his equation of religion and ideology that Dorff cannot relate coherently to the authority of the Jewish tradition. Despite all his talk of “our tradition,” by refusing to acknowledge an authoritative revelation underlying the tradition, Dorff can only look upon that tradition sentimentally, that is, using it when it conforms to his morality and just as easily discarding it when it doesn’t. He seems to prefer the feel of tradition and its modes of discourse to its actual content. Like so many modern theologians, Dorff does not seem to recognize a God who says “no.” A religious tradition has real authority only when it is taken to be the legitimate interpretation by a community of what it understands as God’s word. But for Dorff, morality clearly “trumps” the tradition, which is the line Reform Judaism has taken since its inception early in the nineteenth century.

Dorff tries in a number of places to distinguish himself from the antinomianism of Reform Judaism, an antinomianism that is also untraditional. The great liberal (or “Reform”) Jewish thinkers, such as the philosopher Hermann Cohen or the rabbi Leo Baeck, saw the priority of ethics over law in Judaism, but by ethics they meant traditional Jewish morality, for which they argued with philosophical rigor and rich theological citation. Today’s Reform Judaism has waffled on the issue of homosexuality, and without much philosophical justification, let alone theological citation. In place of morality and ethics, we find only the mores and ethos of our day.

Elliot Dorff’s difference from Reform Judaism is one of degree rather than kind, even if for institutional reasons he cannot admit it. Whether his fellow Conservative Jews have arrived at the same point remains to be seen. In the meantime, those Jews looking to the Jewish tradition for authority, and those non-Jews looking to that tradition for guidance, will have to look to Jewish orthodoxy, in one form or another, for views that correspond to the teachings revealed in the Torah and coherently interpreted and applied by those who have faithfully handed on its truth.

David Novak holds the J. Richard and Dorothy Shiff Chair of Jewish Studies at the University of Toronto.