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."