The Kedoshim Question: Aural Argument

 For Congregation Ner Shalom ~ April 19, 2013, Netzach sheb'Netzach

Heaven was abuzz this week. Abuzz in a way that on earth you might perceive as an unusually high incidence of static electricity in the air, or gooseflesh for no particular reason. In the high reaches Malakhim and Cherubim gathered at fountains and courtyards to wonder together; Seraphim enfolded themselves in their six wings in disbelief. Ofanim exchanged meaningful glances with the animal faces of the Chayot. There was a holy hubbub of curious talk and rarely felt trepidation. How could this even be taking place? How could Holy Beings oppose the Holy Writ?

It is admittedly a most unusual case. A celestial challenge of divine law. Not a law given to angels, who need no law. But a law given to humans. A band of angels suing on behalf of humankind. Trying to upend law given at Sinai. Asking God to eat God's words!


This has never happened before. Not since the Revelation, not since Creation, not since the Singularity that preceded that. The Archangel Metatron presides over the Heavenly Tribunal, and, as is the way of judges most supreme, would not comment on a case still in controversy.

Inside, the courtroom was packed. A gavel fell and a crier called out:

"Shema! Shema! Oyez! Oyez! Let all persons having business with the honorable Yeshivah shel Ma'alah be admonished to draw near and give their attention, for the Court is now sitting." The advocates approached the bench.

One spoke.

"Your honors, Rabbi Hillel, on behalf of petitioners, the petitioners being a coalition of angels representing the interests of the Sefirah of Chesed and the steady circulation of love from God into the world and back." Rabbi Hillel had been in happy retirement since his death, spending slow days playing Scrabble with Rabbi Shammai, who always complained that Hillel was making up words; Hillel insisted that if he had a plausible definition, especially a humorous one, his words should count. But now Hillel had been persuaded out of retirement in order to argue this most unusual case. He stood at the bench and beamed, despite his slightly disheveled appearance, compounded by matzah crumbs from the sandwich he'd snuck into the chamber in his pocket.

"And opposing?"

The fiery glow was almost unbearable. "Archangel Gabriel, Solicitor Celestial, Avatar of the Sefirah of Gevurah, Keeper of Limits and Boundaries, Upholder of the Rule of Law. Your honors."

"Thank you counselors. Rabbi Hillel, you may begin."

"Your honors, as you know, the present controversy centers around a piece of Torah that begins with the words kedoshim tihyu ki kadosh ani. "Be holy because I am holy." The specific provisions that follow are considered a Holiness Code. The parties have stipulated that these mitzvot are the actions and restrictions humankind was instructed to follow in an attempt to embody holiness."

A nearly imperceptible flutter came over the gallery as the angels present imagined humans, with their seawater bodies and short attention spans, and felt a mix of amusement and pity and perhaps resentment. For the blink of an eye, the angelic drone of holy holy holy faltered; just a fraction of a second but long enough for the National Geological Survey to record tremors in three distinct points in the Pacific Ocean.

Rabbi Hillel pressed onward. "We have no dispute with the first verses of the Holiness Code, your honors. In fact, we applaud the Divine Wisdom that instructed humans to welcome the immigrant, to feed the poor, to respect elders, to observe the Sabbath, to love your neighbor as yourself. We also hold no opinion regarding the puzzling but largely benign prohibitions on planting mixed seeds and wearing linen-wool blends." With this, Rabbi Hillel suddenly became aware of his wrinkled kapoteh and moved a hand as if to smooth it before realizing the effort would be futile. "We do not object to any of those laws, your honors. However, where we see a tremendous, if previously overlooked, injustice is-- "

"Rabbi," the Chief Justice interrupted, "let us first take up the jurisdictional issue. By what authority does humankind seek to annul a law given by God? Are the earthly courts insufficient to handle the resolution of this matter?"

"Your honors," replied Rabbi Hillel, "we humans are gifted by our Creator with some sechel, some smarts, that we bring to difficult questions. We do not claim your wisdom of course; after all, as the Psalm says, just below angels are we. Yet as we humbly ponder the law and the very real lives of flesh and blood -- no offense your honors -- to which they must apply, we try to do so in the name of heaven. As it says in Talmud, eylu v'eylu divrei Elohim chayim. All of our conflicting points of view as we debate are in fact the living words of God."

"Yes, Rabbi" interrupted Chief Justice Metatron, "you are doing heaven's work; it has been delegated to humankind to do. So why bother us? Why do you humans not just do it?"

"Yes, your honor. We could; we would; we do. But there is precedent for a more direct exchange between heaven and earth in certain legal matters. For instance when there is imminent danger to God's creation -- or even to God's reputation. In such cases, petitions have gone directly to heaven. For instance, Father Abraham bargaining for the lives of the people of Sodom."

"It did him no good," spat Gabriel.

"His intervention was permitted even if his goal was not achieved," replied the sage. "And at times, in our toughest of cases, heaven has, unbidden, sent a bat kol, a prophetic voice, to guide us."

"Which guidance you have always ignored," countered the archangel.

"In any event, I would like to remind the Court that I am not here representing humankind but rather an intervening angelic body. The Coalition of Heavenly Entities Supporting Equality in Desire. CHESED." Rabbi Hillel glanced at the balcony where his clients waved a rainbow - a real rainbow in this case. He looked back at the panel. "These are angels who, observing the human struggle over the law we will discuss, are deeply moved to bring about its nullification."

"Your honor," broke in the Archangel. "These CHESED people cannot decide to challenge the law. They are angels. They have no free will. They are limbs of the divine. They respond only to Divine Thought."

"And yet," Hillel replied, "here we are. They are certainly responding to some element of the Divine Will, as are you, Counselor. We are aware of many aspects of the Divine - Truth, Beauty, Majesty, Mercy. Maybe it is time we add one: Ambivalence."

There was a collective gasp in the courtroom and this time the low monotone of holy holy holy broke off entirely. On earth, souffles fell and many thousands of individual socks instantly vanished unobserved from electric dryers.

"Rabbi Hillel will please leave the nature of the Divine to us," scolded the Chief Justice. "In the meantime, please move on to the merits of your petition."

"Thank you, your honors. Yeshivah shel Ma'lah, Judges most High, we are here today to correct a wrong. We are here to overturn Verse 13 of Chapter 20 of the third book of Torah, which says, "Man shall not lie with man as with a woman; it is an abomination; they shall be put to death." But I wish to begin with another text altogether. Shir Hashirim. Song of Songs, our people's greatest love poetry. "Let him kiss me with the kisses of his mouth, for your love is better than wine."

"Relevance!" barked Gabriel.

"His left hand is under my head; his right hand embraces me."

"Your Honor!"

"Justices, my successor in life and colleague in Paradise the great Rabbi Akiva ben Yosef, noted that Song of Songs is a holy book. Is this disputed?"

"No objection," said Gabriel cautiously.

"Akiva also said that while all the writings of our Writ are holy, Shir Hashirim is the Kodesh Kodashim - the Holy of Holies, and that the whole world is not worth the day that Shir Hashirim was created. He says this because while the other books give important laws and tell important stories, only Shir Hashirim comes close to describing the love of God for Creation, and the love of Creation for God. Human love, human longing is an earthly embodiment of this love; it is the most deeply felt way for our very limited kind to experience the Great Holiness. And so human love, human longing, in all its forms, is holy."

"What?" cried Gabriel. "Surely you are not suggesting that what Leviticus makes abomination, Song of Songs makes holy? To claim that the right to engage in such conduct is implicit in the concept of holiness is, at best, facetious."

The angels in the CHESED section began to boo, but in a loving way.

"Yes, Rabbi," probed the Chief Justice, "what are the parameters of your position. Are you saying all human sex is holy?"

"No, your Honor. Only sex that is steeped in love. Only sex approached with an open heart. Oh, and sex that is really, really fun."

"Rabbi, the Holiness Code also prohibits sex with slaves, sex with close family members, sex that is adulterous, sex with animals. Are you proposing those prohibitions be lifted as well?"

"Those prohibitions are distinguishable, your honor. They address relationships with inherent power disparities, relationships where it isn't clear that both parties have equal ability to say 'no' - or even any ability. And the adultery prohibition reflects an awareness that there are others who might be hurt by the relationship.  But the provision we challenge today, Leviticus 20:13, has no mention of power disparity; not a hint of exploitation. It applies to consenting adults. And yet their holy act of love is punishable by death."

"Your honor," chimed in the Solicitor Celestial, "other laws in the Holiness Code that exact a death penalty have simply been ignored by humankind or commuted to another type of punishment. A child cursing its parents, for example, I can't remember the last time I saw one of them stoned - well, you know what I mean. In any event, I know it is unlike me to say so, but flexibility has been demonstrated in the application of the laws of Leviticus. Humankind takes many of these rules with a grain of salt."

"However," responded the sage, plucking some stray horseradish from his beard and absentmindedly removing it to his tongue, "in the case of this one particular prohibition, humankind gets uncharacteristically literal. The law is still taken at face value in many cultures and many places on earth, and in some of them still invokes a death penalty. And in other places the death penalty takes the form of violence in the streets or the suicide of young people. No, your honors, as for taking this abomination thing with a grain of salt, it seems much of humanity is on a salt-free diet. Ah, wait, I misspeak," continued Hillel. "One flexibility is commonly granted: women who lie with women, not mentioned in the law at all are, thanks to Leviticus, treated to the same condemnation in much of human society. Living in the shadow of this prohibition is a source of profound sadness; since Sinai humans have been pressured into marriages without love, from which many more people suffer. This law has brought on of a world of suffering."

"But your honors," thundered Archangel Gabriel, "even if this is so, it is for humans to work out. Let them make change however they go about making change. I don't understand what the rabbi here expects us to do about it. Shouldn't this unfold in a human way, country by country, society by society?"

"Your honors," answered Rabbi Hillel, "I submit to you that Leviticus 20:13 was not correct when it was given at Sinai, and it is not correct today. It ought not to remain binding precedent and should be overruled."

In the gallery you could hear a pin drop, and many dancing angels falling right off of the head of it.

Rabbi Hillel lifted his hands in supplication. "It is not for our sake that I ask this, your honors, but for yours. Words of Torah should give honor to God. And this law has caused good and holy people to dismiss you, and You, and Torah itself, from their lives. They have come to trust the holiness of their love; they just think that You don't. There is imminent threat to God's reputation here; you must take note. It is not for the sake of the people sometimes called "gay" that we seek redress. They will continue on and fight their fight along with their friends and families and allies, and they will keep loving each other despite, and they will make art and song about their struggles and jokes to make light of the indignity of it. And they will change the world, with or without you. It is not for them but for heaven that this correction must be made."

"But Rabbi," said Metatron, the Chief Justice, sounding now old and tired himself, "what can we do at this point? This has gone on so long."

Rabbi Hillel thought at this moment that something passed between himself and the Chief Justice. The Chief Justice, who was the only angel in the spheres who was once a man, Chanoch, a particular beloved of God, who could not bear him to die and installed him instead in the heavenly court, alive and immortal. The Chief Justice must be able to remember back to his earthly existence, his love, his longing, his long walks with God. The Chief Justice would help. The Chief Justice would cast his vote for Chesed.

"Rabbi," the Chief Justice called Hillel back to attention. "Torah has already been given. What relief can we offer?"

Hillel held Metatron's eye as he delivered his unorthodox request. "Your honor, in the rabbinic academies, we have a phrase that guides us: Eyn mukdam um'uchar batorah." There is no before or after in Torah. Erase this error now so that it will not even exist at Sinai. Undo it now so that it will never have been. Let the world unfold without it; let love prosper; let this particular hatred and shame never get born; see how a more loving world fares; see how--"

A flame came down from the sky to rest on an altar next to the Chief Justice. Rabbi Hillel sighed. "I see I have used my time."

For a moment, the eyes of Metatron, the angel formerly known as Chanoch, seemed lost in thought.

"Rabbi, a question from upstairs. If there is no before or after, why should we act now?"

"Because, your honor, if not now, when?"

The Chief Justice seemed about to say something, but changed his mind. "Thank you, Counsel," he remarked at last. "The case is submitted."


This drash is dedicated to the memory of Rabbi Alan Lew. The last drash I heard him give was about this verse, and in it he reached the conclusion that the line of right and wrong had shifted, and that Leviticus 20:13 was now simply inapplicable, and not to be heeded. He seemed (or maybe this was my projection) dispirited that Torah process couldn't redeem this Torah problem. 

Many thanks to Reb Eli Herb and to Anna Belle Kaufman for their thoughtful feedback.