Reinterpretation of a Verse in Halacha, Has this Ever Been Done?

In my last post, I attempted to discern if Rabbi Greenberg's hypothesis necessarily contradicts Chazal's interpretation of the verses in Leviticus.  So far, virtually all post-Talmudic Halachic authorities understood Leviticus 18 and 20 to be a prohibition against all male/male sexual intercourse.  However, there is no definitive proof that Chazal understood the verses this way.  It remains at least possible that Chazal understood that Leviticus only prohibited what I have been calling "humiliative" sexual intercourse. 

There are other potential problems with Rabbi Greenberg's hypothesis, and I am going to address one of them in this post.  As in all systems of law, the development of Halacha is dependent on precedent.  If one wants to make an argument, finding a precedent that supports his/her contentions would be extremely helpful.  Is there another place where Halachic authorities have changed the way we understand a verse with dramatic practical changes to the way halacha was understood?  If this ever did happen, did the authorities also have to understand Chazal in a manner different from the way in which previous authorities understood?

The following is a step-by-step description of what I am going to attempt to do in this post:

1. The Torah prohibits male/male intercourse
2. Chazal record the prohibition in many places, and virtually all halachic decisors until very recent history have assumed that the prohibition was against all forms of male/male sexual intercourse
3. Rabbi Greenberg and those who follow in his path have suggested that the Torah only prohibited humiliative intercourse. He was led to make this conclusion in large part due to a moral imperative and dilemma which was only understood fully in recent times.
4. We determined that if Chazal openly interpreted the pasuk according to the traditional understanding, i.e., that all forms of male/male intercourse were prohibited, then Rabbi Greenberg's suggestion could not be considered. 
5. Although the assumption has been for many years that Chazal read the verses in the traditional way, we argued that Chazal might also have only been referring to humiliative intercourse, as the sugyot in the Talmud were not conclusive either way, allowing potentially for us to consider Rabbi Greenberg's hypothesis
6. Is there another place in halachic history where this has occurred? 

I have been spending quite some time thinking about this, and the first place that came to mind was not perfect, but it seemed like a start.  Although I will conclude that we cannot use this as a precedent, I believe that a thorough review will still help us in our search for a possible precedent.

 

An Ammonite May Not Enter the Congregation

 

The Torah in Devarim (Deuteronomy) 23:4-5 says as follows:

No Ammonite or Moabite shall be admitted into the congregation of the LORD; none of their descendants, even in the tenth generation, shall ever be admitted into the congregation of the LORD, 5) because they did not meet you with food and water on your journey after you left Egypt, and because they hired Balaam son of Beor, from Pethor of Aram-naharaim, to curse you.

The simple meaning of the verse is that a descendent of the nations of Ammon or Moab may not marry into Israel, one would initially assume this refers to both males and female descendants of Ammon or Moab. However, the Mishna in Yevamot teaches us differently:

Ammonite and Moabite converts are prohibited from entering into the congregation and marrying a woman who was born Jewish, and their prohibition is eternal, for all generations. However, their female counterparts, even the convert herself, are permitted immediately. (Mishna Yevamot 76b)

As we are about to see, until the time of Boaz and Ruth, which was several generations after the Jewish people entered the Land of Israel, the general assumption was that the prohibition applied to both genders.  However, during the time of the judges, as recorded in the Book of Ruth, this understanding was challenged. Therefore, when Boaz declared his intention to marry Ruth, a convert from Moab, it became established that the biblical prohibition only applied to males. Female converts from Moab or Ammon could marry into Israel.

The Gemara discusses the Mishnah above as follows:  

(a discussion begins regarding the first encounter between King Saul and the future King David) .... Upon seeing that his clothes fit David, Saul began to fear that it might be David who was destined for the throne, and he therefore inquired into his background. At that point, Doeg the Edomite said to Saul: Before you inquire as to whether or not he is fit for kingship, inquire as to whether or not he is even fit to enter into the congregation. What is the reason for such doubts? It is that he descends from Ruth the Moabite, and Moabites are permanently barred from entering the congregation. Abner said to him: We already learned that there is no room for such concern. As the verse states: “An Ammonite or a Moabite shall not enter into the congregation of the Lord” (Deuteronomy 23:4), teaching that an Ammonite man is barred from entering into the congregation, but not an Ammonite woman; and similarly, a Moabite man is barred from entering into the congregation, but not a Moabite woman. Doeg said to him: However, if that is so, say that the verse that renders it prohibited for a mamzer to enter the congregation renders prohibited only a male mamzer, but not a female mamzer. Abner replied: It is written: “A mamzer,” which should be understood not as a noun but as an adjective, denoting a strange blemish [mum zar], one who is defective due to a forbidden relationship, and this applies to males and females alike. Doeg retorted: If so, say that it is prohibited for only an Egyptian man to enter into the congregation, but not an Egyptian woman. Abner answered: Here it is different, as the reason for the prohibition recorded in this verse with regard to Ammonites is explicit: “Because they did not meet you with bread and with water on the way, when you came forth out of Egypt” (Deuteronomy 23:5). Since it is the way of a man to go forth to meet guests but it is not the way of a woman to go forth, females were not included in this prohibition. Doeg countered: Still, the men should have gone forth to meet the men, and the women to meet the women. Abner was silent, as he did not know how to respond to this objection.  Immediately: “And the king said, inquire you whose son is this lad” (I Samuel 17:56). The Gemara comments: There, in the previous verse, Saul calls him youth [na’ar], and here he calls him lad [elem]. This change in the wording hints at the following discussion. Saul said to Doeg as follows: The halakha is hidden [nitalma] from you, and you are ignorant of the law. Go and inquire about the matter in the study hall. He went to the study hall and asked. They said to him: The halakha is: An Ammonite man is forbidden, but not an Ammonite woman; a Moabite man is forbidden, but not a Moabite woman. Doeg raised before them all those objections from the others who are disqualified from entering into the congregation, and they were silent, not knowing how to respond. Doeg then wanted to proclaim that David was disqualified from entering into the congregation. He was immediately answered. Here it says: “Now Amasa was the son of a man, whose name was Jithra the Israelite, that went into Abigal the daughter of Nahash” (II Samuel 17:25), and yet elsewhere it is written that Amasa’s father was named “Jether the Ishmaelite” (I Chronicles 2:17). Rava said: This teaches that he girded his sword like Ishmael, i.e., like an Arab, and said: Whoever does not accept this halakha and act accordingly shall be stabbed with the sword. This is the tradition that I received from the court of Samuel from Rama: An Ammonite man is prohibited from entering into the congregation, but not an Ammonite woman; a Moabite man is prohibited from entering into the congregation, but not a Moabite woman. The Gemara asks about this incident: And is he trusted to offer such testimony? But didn’t Rabbi Abba say that Rav said: With regard to every Torah scholar who issues a halakhic ruling based on a tradition he claims to have received from his teacher, and that ruling has practical ramifications for himself as well, if he stated the ruling already before the incident, i.e., before it had a bearing on his own case, one listens to him; but if not, if he reported the tradition only after it was personally relevant to him, one does not listen to him, as he is an interested party. Since Amasa was the son of Jesse’s daughter Abigail, as stated in the aforementioned verse in Chronicles, the matter certainly affected his own status. The Gemara answers: Here it is different, as Samuel and the other members of his court were still living, and the truth of Amasa’s report could be easily verified. The Gemara asks: In any case, the unanswered question raised by Doeg is difficult. The Gemara answers: Here, in Babylonia, they explained the matter based on the verse: “The king’s daughter is all glorious within” (Psalms 45:14), which indicates that it is unbefitting for a woman to venture outside at all, and therefore the Ammonite women would not have been expected to go forth to meet the Jewish women. In the West, Eretz Yisrael, they say, and some say it was Rabbi Yitzḥak who said: The verse states: “And they said to him: Where is Sarah your wife? And he said: Behold, in the tent” (Genesis 18:9), which teaches that it is praiseworthy for a woman to remain inside her home. The Gemara comments that this disagreement with regard to the source of the halakha that it is permitted for an Ammonite or Moabite woman to enter into the congregation is like the following dispute between tanna’im: The verse states: “An Ammonite or a Moabite” (Deuteronomy 23:4); an Ammonite man is barred from entering into the congregation, but not an Ammonite woman, and similarly, a Moabite man is barred from entering into the congregation, but not a Moabite woman. This is the statement of Rabbi Yehuda, who derives the halakha from the masculine form of these two terms. Rabbi Shimon says: The verse states: “Because they did not meet you with bread and with water on the way” (Deuteronomy 23:5). Since it is the way of a man, but not the way of a woman, to go forth to meet guests, females were not included in the prohibition. With regard to the same issue, Rava taught: What is the meaning of that which is written: “You have loosened my bands” (Psalms 116:16)? David said before the Holy One, Blessed be He: Master of the Universe, You have loosened the two bands that were on me, on account of which I and my entire family might have been disqualified, i.e., Ruth the Moabite woman and Na’ama the Ammonite woman. Owing to the allowance granted to Moabite and Ammonite women, we are permitted to enter the congregation. Rava further taught: What is the meaning of that which is written: “Many things have You done, O Lord my God, Your wonders and Your thoughts are upon us” (Psalms 40:6)? Upon me is not stated, but rather “upon us,” which teaches that Rehoboam, son of Solomon and grandson of David, was sitting on the lap of David, who said to him: These two verses were stated about me and about you, as Rehoboam’s mother was Na’ama the Ammonite.

There are a few points that are clear from this section of the Talmud:

1. The general understanding of the scholars of the time was that this verse was a blanket prohibition on all descendants of these two nations.
2. A recognized scholar was allowed to claim that he had a tradition to interpret the verse in another way, even though it had practical Halachic implications.  However, the point was emphasized that had there been personal ramifications for his own situation he could not declare a tradition that contradicted what was generally understood by everyone else.
3. If there was no tradition, the verse would have been interpreted according to the context, as this was Doeg's claim.  

Item #3 above is a crucial point.  If not for the tradition, the interpretation would have been up to the Rabbis of the time to determine the meaning of the verse based on the context and language of the verse.  Once a tradition was revealed, context was no longer important to determine the meaning of the words.

Is this comparable to our situation? There certainly are similarities.  If my argument from the last post is correct, then we have no specific tradition regarding the meaning of this verse as it relates to humiliative versus relationship intercourse between men.  This is because it is not clear from Chazal which type of male/male intercourse they were referring to.  In such cases, it would therefore be acceptable to interpret the verses according to their context, which is what Rabbi Greenberg is suggesting we do.

On the other hand, in this case, "Yether the Ishmaelite" declared that he had a tradition from the prophet Samuel that established the true Halachic meaning of the verse.  In our case, we have no tradition that declares that the Torah is only referring to humiliative intercourse.  Can it be argued that we have a tradition that the Torah is referring to both humiliative and relationship male/male intercourse?  I would say this is not a viable argument.  In the case of the Moabite restrictions, a clear and specific historical tradition had to be declared by a recognized authority of the time.  In our case, no Halachic authority in history has ever made a claim that they received a tradition from Sinai regarding the meaning of this verse.

It seems clear from the Gemara that had there been no tradition, the meaning of the verse would have been determined based on context and language alone.  Clearly, Doeg would have declared that all descendants of these nations were prohibited, as he felt that both men and women should have welcomed the Jewish people with food and water.  However, Rabbi Yehuda and Rabbi Shimon would have interpreted the verse to be referring only to males. Rabbi Yehuda would have argued this case due to the masculine form of the words used, and Rabbi Shimon would have argued based on the idea that women are not expected to go out to greet guests. 

However, one may contend that the case of the Ammonite is different because Rabbi Yehuda and Rabbi Shimon are both stating their opinions after they already know by tradition what the meaning of the verse truly is.  It is plausible that had there not been a tradition at all, that they may not have made the same inferences from the verses.

Another potential problem with this analogy is that it is also possible to claim that this never was a practical Halacha until the time of Ruth.  It could be argued that the Halacha until this point was unclear, and now that it was a practical question, it was then debated and determined by tradition.  The Talmud we quoted above does not make this issue completely clear.  However, the following passages from the Midrash Rabbah suggest that the tradition declared by Yether did establish a "new" halacha:

Another interpretation: "And Shacharayim": this is Boaz, and why was he called by the name Shacharayim? Because he was freed (meshuchrar) from his sins. "Begot children in the field of Moab", this is because he begot from Ruth, the Moabitess. "After he sent": this is from the tribe of Judah, as it is said: "and he sent Judah before him unto Joseph (Genesis 46:28)". "Hushim and Baara his wives", he was a man who was the progenitor of his wives? Rather he was strong like a tiger and he understood the halakhah "Ammonite and not Ammonitess; Moabite and not Moabitess". "And he begat again from Hodesh his wife (1 Chronicles 8:9)": this is not desire for her; rather he begat from his wife Baara, and it is better understood that in his days the halakhah "Ammonite and not Ammonitess; Moabite and not Moabitess was new (RMH - "nitchadshah"). And further the scripture says: "Jether the Ishmaelite (1 Chronicles 2:17)".  (Medrash rabbah Ruth 4:1)

... This proves the point that Rabbi Samuel the son of Nachman said that he (RMH - Ploni Almoni) was ignorant of the words of the Torah. He said: "the first ones did not die but rather because they took her and I am going to go and take her? I certainly am not going to take her. I will not pollute my seed and I am not going to create unfitness for my children". And he did not know that the halakhah had been changed (RMH - "nitchadshah")  "Ammonite and not Ammonitess; Moabite and not Moabitess (Medrash Rabbah Ruth 7:10)

The use of the language "nitchadshah" in two separate places suggests that the accepted Halacha was to interpret the verses one way, and then at this time in history, due to the newly publicized tradition, it changed. This is no proof, but one certainly gets the sense that had there been no tradition, Rabbi Yehuda and Rabbi Shimon would have remained with the understanding that apparently was held until the days of Doeg and Yether the Ishmaelite.

To conclude our analysis of this potential precedent, the primary reason for the change in the interpretation of the verse in this case was the revelation of a previously unpublicized tradition.  In our case, we do not have a clear tradition from Chazal.  What we do have is a case where the verse has been interpreted one way by the general Halachic public, and now we want to reanalyze the pasuk with significant practical implications based on context and language.

So, we are back to the drawing board for a better example.

Jews, Gentiles, and the Meiri

 

For those of you who have been following my blog, this topic should sound familiar.  I will be required to review some things that I covered in detail in previous posts, so forgive me.  Fortunately, I did put together all of my posts in the form of an article several years ago here.  Please feel free to review that post in all its detail.  If anyone would like a pdf or word version with footnotes and all, just email me and I would be happy to provide it.  By far, that was my most popular post, and I am extremely proud of the measurable impact it has had on contemporary Halachic discourse.  Despite my anonymity, with God's guiding hand, tens of thousands have downloaded and disseminated that article. It has even found its way into school curriculums, it has found its way to a quite high google ranking, and I hope it will continue to spread.

So how is that relevant to the topic we are currently discussing? Let me explain. 

There are countless occurrences in the Talmud where verses are interpreted to be referring to Jews, to the exclusion of "Nochrim" (literally: strangers) or "Ovdey Kochavim" (literally: star worshippers).  

The list is very long, but here are some examples:

1.  Bava Metziah 59a, regarding the sin of overcharging or misrepresenting while buying or selling, the verse in Leviticus 25:14 quoted in the Talmud says: "When you sell property to your neighbor, or buy any from your neighbor, you shall not wrong one man his brother".  The Talmud derives from the word "neighbor" ("ameetechah") that this specific prohibition only applies to an "am" or a nation that also keeps "Torah U'mitzvot".  This has been interpreted by mainstream Halacha to mean that this specific prohibition of "ona'ah" does not apply to gentiles.
2. Bava Kama 113b, regarding the command to return a lost object, the verse in Deuteronomy 22:3 says, "You shall do the same with his ass; you shall do the same with his garment; and so too shall you do with anything that your brother loses, and you find: you must not remain indifferent." The Talmud derives from the term "your brother" ("achichah") that this mitzvah does not apply to one is not your brother. Mainstream Halachic authorities understood this to exclude gentiles.
3. Sanhedrin 57b Regarding the punishment for murder, the Gemara states that a Jew who kills a non-Jew is not liable for the death penalty.  The origin of this Halacha is the following Mechilta.  The Mechilta is discussing the verse in Exodus 21:14 "When a man schemes against his neighbor ("Re'eyhu") and kills him treacherously, you shall take him from My very altar to be put to death"
    "a man" — to exclude a minor (who killed); "a man" — to include others (i.e., gentiles who killed); "his neighbor" — to include (his killing) a minor; "his neighbor" — to exclude (his killing) others. Issi b. Akiva says: Before the giving of the Torah, we were exhorted against the spilling of blood (of gentiles). After the giving of the Torah, instead of being more stringent, shall we be more lenient? In truth, they said: He (one who kills a gentile) is exempt from the laws of flesh and blood, but his judgment is relegated to Heaven. (Exodus, Ibid.)
   Here the Talmud derives from the word "Re'eyhu" to exclude gentiles 
4. There are numerous other similar ideas scattered throughout the Talmud, and it would take a while to review them all.  Here are some references: avodah zarah 20a, bava kamma 37b, avodah zarah 37b, Yoma 84a and more. Please see my previous writings as well for more discussion.

The moral questions surrounding these sugyot are many, and much ink has been spilled discussing the nature of these derivations of law that the Talmud makes from the various verses quoted. It is not my place here to discuss each one.  However, it is clear that the verses were interpreted by Chazal as differentiating between the people that are in the categories of "rey'acha, acheecha, and amitecha" (your friend, brother or compatriot) and the people who are not in those categories.  The very large quantity of extremely practical and real halachic ramifications of who is included and who is excluded from these groups is self-evident.   

 

The halachic literature consistently assumes that the Gemara means to exclude gentiles and to include only Jews.  This has permeated the Halachic discourse all the way through the Shulchan Aruch and beyond.  

 

The Meiri however, clearly bothered by the moral implications of these interpretations, looked at the verses and saw something completely different. In my previous writings when I covered the subject extensively, I demonstrated what many other scholars have noted as well.  The Meiri understood these verses primarily as an inclusive verse, as opposed to being an exclusive verse.  This means that every time the Torah uses one of the above terms, the purpose is to INCLUDE all peoples who are our brothers in the sense that they live according to basic ethical morals.  Yes, it also does exclude others who are members of inherently amoral societies, but the Meiri essentially understood the verse as being primarily inclusive.

 

Once he understood the verse this way, the Meiri was then able to look at all the discussions in the Talmud, and thus interpret those discussions in a way that contradicted virtually all of the preceding commentators.  In virtually every single subject in which Chazal mention this topic, the Meiri consistently interprets the intention of Chazal to be including "all who are brothers in the ways of morality and religion".  It was very important for the Meiri to demonstrate how every statement of Chazal was consistent with his reading of the verses so that one could not provide proof against him from Chazal.  Even when the simple reading of the Gemara seemed to indicate an understanding that would support almost every other Halachic authorities reading.  In Sanhedrin 57b, the Meiri emphasizes his reading of Gemara that one who kills a gentile is also liable for the death penalty, against the simple reading of the Gemara. He concludes his words with the following (my translation), "Although the simple reading of this discussion seems to indicate a diffferent understanding, be careful not to make a mistake and explain this in any other manner".

 

Most importantly, the Meiri mentions numerous practical Halachic consequences of his "new" understanding.  These consequences include permitting violation of Shabbat to save a gentile life, and many other similar Halachot.  The Meiri thus solved a major moral conundrum that seemed to arise from the Halachot as his immediate predecessors understood it.  The moral conundrum clearly was the difficulty in assuming that these basic laws did not apply to people other than Jews.

 

The long list of questions and debates about the Meiri and his opinions I have already discussed in great detail previously. I beg you to read my previous thread before commenting or questioning.  Once you do read what I've already wrote, feel free to say whatever you want, and we can have a healthy discussion. 

 

I can hardly imagine a better precedent for what Rabbi Greenberg is trying to accomplish, especially after my previous post in which I demonstrated that the words of Chazal can be understood to be referring to humiliative intercourse. Please look back at the six steps I wrote in the beginning of this post to delineate exactly what I was going to attempt to accomplish.  Here are how those same six steps are applicable to the case of the Meiri and the Gentiles:

1. The Torah differentiates between members of "our" people and "them"
2. Chazal record this differentiation in many places, and virtually all halachic decisors until very recent history have assumed that this differentiation was meant to include Jews only and exclude all Gentiles
3. Meiri and those who follow in his path suggest that the Torah means to include moral people of all religious traditions. He was led to make this conclusion in large part due to a moral imperative and dilemma which was felt acutely in his times.
4. If Chazal had openly interpreted the verse according to the traditional understanding, i.e. that all gentiles no matter what their moral status excluded from these verses, then Meiri's suggestion could never have been made. 
5. Although the assumption has been for many years that Chazal read the verses in the traditional way, Meiri argued strongly that Chazal were only referring to pagan and immoral people, as the sugyot in the Talmud could be interpreted this way as well, allowing Meiri to make some dramatic and sweeping practical Halachic decisions.
6. We have now identified a clear precedent in Halacha to do exactly what Rabbi Greenberg is suggesting we do.

I do believe that this proves that it is valid to interpret the verses in Leviticus according to their context and language.  As long as this interpretation is not directly contradicted by Chazal, it is therefore legitimate to understand the practical halachic ramifications differently from the way the established Halachic authorities have.  In cases where the moral imperative for doing so is very powerful, similar to the Meiri, I believe that we are obligated to try.  Even if you disagree with Rabbi Greenberg's analysis, I think we are closer to bringing his ideas into the "Orthodox" Halachic discourse. 

We are very far from finished though. In the next post I would like to discuss another potential problem with Rabbi Greenberg's idea.  This is the question regarding whether it is possible that a specific action can be Halachically permitted in one case and prohibited in an another based on the context of the action alone.  If an action is prohibited, shouldn't it be prohibited no matter what? This will be the subject of my next post, and we will continue on this very long journey, with God's help.