Our Gemara on Amud Beis discusses the scriptural source for אשת אחיו שלא היה בעולמו. What is אשת אחיו שלא היה בעולמו? Although there are variations, the simple case is that of Reuven who married Rachel, and then dies childless. After Reuven dies, Reuven’s father has another boy (through Reuven’s mother or another wife), Shimon, who is of course Reuven’s brother. Ordinarily Shimon, who is a brother from his father’s side, would be able to perform the Mitzvah of Yibum. In this case, because Shimon was not alive at the moment Reuven died childless, he never was activated by the Mitzvah of Yibum. His sister in law remains permanently under the original forbidden rubric of a brother’s wife, without the Yibum Mitzvah that overrides this. 

Tosafos asks, why do we need a verse to teach this halakha, as it clearly would be a violation of the principle of Darchei Noam? That is to say, there is a principle that the Torah’s ways are ways of pleasantness (see Mishle 3:17). If the Torah actually made a requirement of Yibum to such a brother, the scenarios would be untenable. 

Imagine a woman’s husband dies childless and brotherless. As a widow, she is now free to marry and does so. Then, ten years later, her former mother in law has another son. Now, after being married, she stops everything and falls to Yibum or at least chalitzah? How does that feel to her new husband or to her, never being sure if she can start any relationship, lest a new brother in law be born? Tosafos answers that in truth you would not need a verse for those cases to teach us that the Mitzvah of Yibum is not applicable. The verse only is there for a situation where the mother in law is pregnant. Since in that case it is not an endless hanging issue, and after she gives birth we can find out if a brother was born, it would not be a violation of the Darchei Noam principle.

This idea of Tosafos is incredible. Without any scriptural support, the idea that the Torah cannot make unreasonable demands is sufficient to exclude an entire portion of a major Mitzvah! This is different than the way other Gemaras use this principle. For example the Gemara in Succah (32b), based on the Darchei Noam principle, rules out a particular species for Lulav because it has thorns which would injure. The Mitzvah of Lulav is not being eliminated, rather we are just logically ruling one out of two species, which make sense - why would the Torah require using a species that is injurious if another viable alternative is available. But here, Tosafos is so so sure of the Darchei Noam principle, that there is no scriptural support required to eliminate אשת אחיו שלא היה בעולמו. 

We must wonder, is the Torah that consistent? Are there no situations where the Torah seems to make unreasonable demands? For example, there is a case in the Gemara (Niddah 65b) where a woman may end up having to be celibate because of a physical disorder that causes her to menstruate during intercourse. What could be more unreasonable than having to be permanently celibate?

The answer is that the Darchei Noam principle applies to Torah rules but not to individual circumstances, as unfortunate as it may be. Meaning that if the Torah rule is generally reasonable and applicable to all classes of people, then it is Darchei Noam. In Psychology of the Daf (Yevamos 4) we have quoted the Rambam in the Guide for the Perplexed III:34 who explains that the Torah, like the laws of nature (also from God) are designed to be generally beneficial, but not perfectly beneficial for every person at every moment. Just as the immune system is generally good, but when it is overactive can cause diseases such as Arthritis or Lupus, so too with all aspects of nature and Torah.

That brings us to a discussion about homosexuality. The prevailing “science” enforces, to the point of political repression, any kind of research to investigate the degree or even existence of innate homosexuality. From a political human rights perspective, it is understandable that it is dangerous to imply that homosexuality is a choice as opposed to innate, because it could lead to discrimination and condemnation by those who believe the behavior to be immoral. However, there are numerous mental disorders and challenges which are neither innate nor conscious choices. Instead they are part of a developmental rubric, that in time, becomes more and more baked into the personality. Depression is not a conscious choice nor is OCD, but we do not have to declare it utterly hard-wired. Rather, certain beliefs, perceptions and coping mechanisms led to the development of those behaviors.

In regard to homosexuality, if we believed that it was utterly innate and inborn, since it applies to an entire class of people, the Darchei Noam principle would represent a challenge. However, despite the politics fighting the science, there is no reason to assume homosexuality is more innate than heterosexuality, which is to say both are likely to be part of a human developmental process. In the same way that reading and language skills, perhaps even rudiments of grammar have some aspects that are hard-wired, but ultimately there is a human developmental process that encourages certain aspects and discourages, based on the grammar, words and writing of that particular culture. 

In theory, through psychotherapy, if a person wanted to understand and address what led him to be more comfortable with a homosexual attraction and attachment over a heterosexual, there is reason to believe that modification is possible. That is aside from whether or not we consider homosexuality to be a pathology. I am making this argument equally for heterosexuality. That is, if a person was born in a parallel universe where he was heterosexual and wanted to change his desire so that he could function as homosexual, the same psychotherapeutic process might be possible. It is only in our current culture that it has been declared that homosexuals are born that way, and there is no possibility for modification of these desires. Also, since objective scientific discussion and research has been militantly squelched by politics, the advances in treatment of the past 50 years that have offered new treatments for depression, OCD and anxiety are unavailable for homosexuality. Colleagues have been unable to confer and do serious academic research under a tyrannical political regime. So even if a client or therapist wanted to embark down the road of treatment and exploring the possibilities, the forms of treatment are less advanced than other areas of mental health.

One final point: It is indeed cruel and unfair to declare definitely that there has to be an effective way to psychotherapeutically modify sexual attraction, or to coerce treatment for those who do not wish for it. However, it is equally cruel and dishonest to declare it is not modifiable and to deny therapy for those who want to try.

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

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