Tuesday, January 09, 2007

Jewish Sexual Ethics

It's been over a month since the CJLS released their teshuvot on homosexuality, and those of you who care are probably wondering why I haven't yet posted any comments. The primary answer is that DH and I (all right, mostly DH) have been working through the halakhic sources utilized in the teshuvot, and some of them are very complicated.

I've realized, however, that before commenting on the nitty-gritty legal issues, it's probably worth saying a few words by way of introduction. In this post, I'd like to address a question that I've raised before, namely: what are the essential Jewish values in the realm of sex and relationships, and where do they come from?

Michelle Shain offers some of the most articulate criticism of the Dorf/Nevins/Reisner teshuvah* that I've seen from a Conservative layperson:
These authors and the ten rabbis who voted with them on Wednesday, have chosen to ignore divine will as expressed by centuries of clear and uncontested halakhic jurisprudence, in favor of a 21st-century American value.

This is actually a reasonable characterization of the teshuvah. But then, it's worth examining what the Torah and all those centuries of halakhic jurisprudence have to say about sex and relationships in general. Contemporary Jewish leaders who address these subjects typically stress such values as honesty, fidelity, and mutual respect.** At the very least, they mention monogomy: sex is supposed to occur within a committed, sanctified relationship between two adults. One could make a reasonable argument that these values are promoted in our textual tradition, but as far as Jewish law is concerned, strictly speaking, they are barely on the register. Premarital sex may be considered licentious behavior, but it is not strictly prohibited as long as the laws of menstrual purity are observed. [See CORRECTION below.] On the other hand, if a married couple that has sex without the woman visiting the mikveh, the man, at least, is liable for karet, the most severe penalty in halakhah. Extra-marital sex is prohibited for a married woman, but a married man who has sex with a single woman has not transgressed the letter of the law. True, polygamy was outlawed for Ashkenazim by Rabbi Gershom ben Judah around the year 1004 CE, but that was merely a takkanah (rabbinic injunction), and it was set to apply for a mere 1000 years (you do the math). The Torah does not prohibit pedophilia or even rape per se -- the penalty for sex with a virgin is compensation for her depreciated value, either monetarily or by taking her as a wife.

So I ask again, what are Jewish sexual ethics, and where do they come from? To suggest that they do not come from the Torah or from the halakhic tradition would seem to be a recipe for chaos, but I'm not sure that we can honestly assert the contrary.

[CORRECTION: As Mar Gavriel points out in this long and intricate post, pre-marital sex is probably prohibited rabbinically, if not midde'oraita' (that is, according to the rabbinic understanding of Torah law), at least in situations that cannot be defined halakhically as pilagshut (usually translated "concubinbage.") My point stands, however: the penalty for marital sex without mikveh use is unquestionably more severe than the penalty for premarital sex with mikveh use. This is not consonant with the hierarchy of values to which most of us are accustomed. I will discuss this further in the near future, God willing.]


*In case you missed it, the teshuvot are here. The press release on this page offers a summary, although its characterizations of some of the teshuvot are somewhat misleading.
**See, e.g., Elliot Dorff's Rabbinic Letter on Intimate Relations, quoted at length on pp. 37-38 of Leonard Levy's teshuvah, "Same-Sex Attraction and Halakhah."

18 comments:

elf said...
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Anonymous said...
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Will said...

My suggestion is that sexual ethics come from a carefully considered playing out of the consequences of a set of rules created in response to human needs in a particular context (which include inherited values created in other contexts). A great demonstration of this thesis is Etan Levin's "Biblical Women's Marital Rights" in PAAJR 63: 87-135.

Agnoxodox said...

I don't see why you expect the conservative movement to produce decisions based in halacha, when JTSA requires students to take more hours of biblical criticism than talmud or gemara.

so why is it surprising when they ignore halacha? They are effectively taught its not important.

This is the same reason why comitted conservative people have problems, because they are surronded by people who are not comitted and they know what type of message that sends their kids.

Mar Gavriel said...

I think I address some of these problems in my famous post.

You write:
Premarital sex may be considered licentious behavior, but it is not strictly prohibited as long as the laws of menstrual purity are observed.

On a דאורייתא level, you're probably right (though the Rambam disagrees). On the דרבנן level, I would think that the gezeiro against yiHudh would prohibit non-marital sex. (Yes, the ריטב"א would permit it מדין פילגשוּת, as I explain in that post, but [a] I don't think his opinion makes that much sense, and [b] it is not widely accepted.)

On the other hand, if a married couple that has sex without the woman visiting the mikveh, the man, at least, is liable for karet, the most severe penalty in halakhah.

Why just the man? I know that halokho applies all the penalties for sexual prohibitions to both parties (except in cases of clear rape), and a brief glance at Leviticus 20:18 confirms that this is clear even from the Biblical text itself.

So I ask again, what are Jewish sexual ethics, and where do they come from?

Hmm. I think that one of the primary features of Jewish sexual ethics (if such a thing exists) is restraint. This is evident from the number of prohibitions.

(Off to minHo.)

elf said...

Will: I'm not sure what you mean by "a carefully considered playing out of the consequences of a set of rules." Could you give a simple example?

Agnoxodox: I don't see what your comment has to do with this post.

Mar Gavriel said:
On a דאורייתא level, you're probably right (though the Rambam disagrees). On the דרבנן level, I would think that the gezeiro against yiHudh would prohibit non-marital sex.

I finally read your "famous post" and the comments on it thoroughly and looked at what I think are the most important rabbinic sources. As of now, I agree with you that premarital sex is most likely prohibited midderabbanan, at least in contexts that cannot be halakhically defined as pilagshut. I will correct my post accordingly.

I think that one of the primary features of Jewish sexual ethics (if such a thing exists) is restraint.

Hard to argue with you there. (FYI, I am planning another post on this question.)

Agnoxodox said...

I was reacting mostly to your quote of Michelle Shain.

Mar Gavriel said...

Will: Are you who I suspect you might be?

Mar Gavriel said...

As Mar Gavriel points out in this long and intricate post...

Ooops! You forgot to include the link.

elf said...

agnoxodox said:
I was reacting mostly to your quote of Michelle Shain.

In that case, you are really arguing with her, not with me.

Mar Gavriel said:
Ooops! You forgot to include the link.

Strangely enough, I actually did not forget to inlcude the link, but blogger seems to have mucked up the html when I hit "publish" (or something). Even stranger: the link continued to display properly in the preview, but not in the post itself.

Anyway, I think it's fixed now. Thanks for pointing out that the link was missing.

Mar Gavriel said...

If I ever get around to it, I really should re-write that post. I just re-read it today, and found it to be one of my worst-written posts, largely a brain-dump of scattered sources.

Anyway, my current thinking on the topic is a possibility that I raised in that post, which is that the Gezêro against yihudh, attributed to King David's court, did make pilaghshuth forbidden; that Rabbinic law would consider King Solomon a sinner for having "taken" pilaghshim; and that I do not agree with the claim of the Ritb"a, as quoted in the ברכי יוסף.

Agnoxodox said...

elf, perhaps, except I was working off of your concurrence with what she said, "some of the most articulate criticism" and "reasonable characterization".

elf said...

I think it's reasonable and articulate. That doesn't mean that I agree.

ari said...

"a married man who has sex with a single woman has not transgressed the letter of the law"

Can you please post the references that lead to your conclusion?

Ibn Avraham said...

Regarding rapists: while there is no explicit "don't do it" line, Rambam counts punishing rapists as a positive mitzvah - the rough equivalent of declaring rape prohibited.

To that end - they can receive lashes, which of course, is a punishment set aside for assur actions.

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