Male Homosexuality - What Are the Halachic Issues?

I am going to begin by diving straight into the Halachic heart of this issue.  In this post I am going to list what the potential prohibitions are in the halachic literature that pertain to male homosexual acts.  At this point, I am going to focus on rules and prohibitions.  It is going to be a long list of "do-nots".  It is crucial for our discussion that we begin with the potential problems.  We can then discuss the various halachic attempts at mitigating these apparent prohibitions.

I apologize in advance for the harshness of this post, I know that it will sound like a sanctimonious attempt at telling other people what they should not do.  That is not my intention.  Quite the contrary, my intention is to lay the foundations of our discussion.  This way, when we attempt to find real solutions they will not be shallow and fake.  Without acknowledging a problem first, one cannot seriously attempt to find genuine solutions. However, allow me to introduce some reading material first.

There are two books, both written by Orthodox Rabbis, that have had significant influence on the discussion of male homosexuality in the Orthodox world.  In virtually all of the ensuing discussion in the Orthodox Jewish world, these two books have loomed large in the background.  Not much has changed in the halachic discussions of homosexuality since these two books have been published.  I am therefore introducing you to both in the beginning of this blog series.  In some cases I will directly use them as source material, sometimes I will agree with their positions, and in other cases I will disagree.

One of the books, is "Wrestling With God and Men", written by Rabbi Steven Greenberg and published in 2004.  For the most part, this book's most important conclusions have not been accepted by Halachic authorities.  We will understand why as we continue with this series.  Despite the fact that his conclusions have mostly been considered outside the halachic pale, his ideas have most certainly been a huge influence on almost everyone who discusses the subject.  This is true whether they admit it or not (in most cases, not).  The book contains a wealth of fascinating material and at least some of his ideas have staying power.

The second book has most certainly become accepted in the majority of the halachic world.  This is the book by Rabbi Chaim Rapaport, published in 2003 with the title, "Judaism and Homosexuality".  This book makes halachic conclusions that are definitely within the halachic pale.  The book was groundbreaking, primarily because he was one of the first Orthodox rabbis to seriously take into account the developments of modern science in the understanding of human sexual orientation.  Rabbi Rapaport deserves a lot of credit for basing his book on actual science rather than on centuries of misunderstanding and bias.  His book has been incredibly influential, though it still may not have penetrated into the deepest corners of the Chareidi world.  He also had the unique experience of someone who has counselled personally many people and families within Orthodoxy who were struggling with these issues.  He reacted with compassion, and then wrote his book.

Of course, there have been many people that have written on the intersection between male homosexuality and Halachah since 2004.  However, there have been only a very few original ideas proposed that haven't already been presented in these two books. Therefore, these books remain the "must-reads" on this subject.  

Now I can begin with a list of the potential halachic issues that relate to male homosexuality.  Bear in mind that halachic rules regulate behavior, not identities, dispositions or orientations, sexual or otherwise.  Each one of these will be subjected to more rigorous analysis in future posts. Broadly, the issues can be divided into two categories:

1. Halachic rules that apply to the gay man himself and his behavior (i.e.what he may or may not be allowed to do)
2. Guidelines that relate to how we as a community should or shouldn't engage with gay men 

In this post I will begin with the first category. This is a list of four halachot that may pertain to homosexual men.  A full analysis of the scope and nature of each one will follow in future posts.

Halachic Issue # 1  Sexual Intercourse Between Males

There are two well-known verses in Leviticus that are clear prohibitions related to homosexuality.  The first is Leviticus 18:22 (translation from Sefaria.org):

Do not lie with a male as one lies with a woman; it is an abhorrence (a "To'evah")

The second verse is Leviticus 20:13:

If a man lies with a male as one lies with a woman, the two of them have done an abhorrent thing ("To'evah Asu") ; they shall be put to death—their bloodguilt is upon them

There are two terms used in both of these verses that stand out conspicuously.  The first is the comparison to "lying" with a man as with a woman, and the second is the use of the term "to'evah".  The translation of to'evah that I quoted, abhorrence, was from Sefaria.org, and most translations use similar language.  The term "as with a woman" is generally understood in the world of Halachah as penetrative anal intercourse between two men. This would be physically similar to the act of penetration that occurs during vaginal intercourse between a man and a woman.

The Talmud certainly seems to have interpreted the prohibition as an act of intercourse and penetration, here are two sources from the Talmud:

Source One - Yevamot

In Yevamot 53b the Mishna records the rule that any sexual intercourse, whether one penetrates but does not "complete the act" (usually interpreted as ejaculation) or whether one has vaginal or anal intercourse with one of the relationships forbidden by the Torah, that the violater is equally guilty for committing the act prohibited by the Torah.  The mishna makes it clear that it is only penetrative intercourse that is expressly prohibited by these particular prohibitions.  Other sexual acts may be prohibited for other reasons, but the list of forbidden relationships in Leviticus that includes sex between two men is referring to penetrative intercourse alone.

When the Talmud discusses this Mishna on 54b,  we have the following exchange:

Ravina raised before Rava: With regard to one who performs the initial stage of intercourse with another male, what is the halakha? Is it considered to be a forbidden act of homosexual intercourse? The Gemara is puzzled by this dilemma: With regard to a male, it is written explicitly: “You shall not lie with a man as with a woman” (Leviticus 18:22), which indicates that anything considered an act of sexual intercourse with a woman is also considered an act of sexual intercourse with a man.  

It is clear from the above that the Talmud understood that anal intercourse even without ejaculation, is the prohibition of the Torah referred to in the verse above.

Source # 2 - Sanhedrin

The mishna in Sanhedrin 54a, refers to one who is "Bo'el Ha'zachar"  which clearly means one who has intercourse with a male.  "Bi'ah" in all of the talmud is a uphemism that literally means to "come onto" . However there us no question that it is a Talmudic term for sexual penetration. This is made even more clear in the ensuing Talmudic discussion of this mishna:

The phrase “lies with a male” is referring to any male, whether he is an adult man or whether he is a minor boy. The phrase “as with a woman [mishkevei isha],” referring to lying with a woman, appears in the plural. The verse teaches you that there are two manners of lying with a woman for which one who engages in intercourse with a woman forbidden to him is punished, vaginal and anal intercourse.

The Talmud thus derives that just as both vaginal and anal penetration are the forms of intercourse prohibited between males and females (outside of permitted relationships), so too is anal intercourse the type of penetration that is prohibited between two males. 

These two sources are enough to make the point that Chazal assume that the act prohibited by the verse is anal intercourse between men.  The meaning of the phrase "as with a woman" is understood as meaning penetrative anal intercourse between men.

The Rishonim clearly understood it this way as well, and this is how the law became codified in virtually all Halachic literature since the time of the Talmud (see Rambam Mishna Torah Hilchot Issurei Biah 1:14 and many other subsequent Halachic sources).

Halachic Issue # 2 - "Lo Tikrevu" , Other Sexual Activities

What about other non-penetrative sexual practices?  The verse, as we said above, refers specifically to penetrative intercourse. Does that mean that all other sexual activity between to men is permitted?  Not exactly. The Chizkuni, on the verse we quoted above in Levitcus 20:13, states as follows:

Mishkevey Isha (as one lies with a woman) - but this does not refer to general fondling (ma'aseh chiduddin)

The Chizkuni is simply reiterating what we just studied, that the only action prohibited by the verses in Leviticus is penetrative intercourse.   Although not prohibited by the verses in Leviticus we discussed above, the poskim bring another verse in Leviticus 18:6.  The following are the words of the Rambam (Mishneh Torah, Issurrei Biah 21:1:

Anyone who has intercourse with any of the prohibited sexual contacts through the limbs (non penetrative intercourse)or he hugs or kisses in the way of desire and he recieves pleasure from the closeness of flesh recieves lashes based on the Torah, as it states (Leviticus 18:30) Not to commit any of these abominable transgressions etc... and it states (Leviticus 18:6) you shall not come close to revealing the nakedness etc.. This means that one should not even come close to committing acts that can bring one to transgress the prohibition of revealing the nakedness (a euphemism for penetrative intercourse)  

The exact nature of the prohibition referred to by the Rambam is hotly debated by the Rishonim.  We will have to attend to these debates when we discuss the issue in more detail in a later post. 

Halachic Issue # 3 - Hotza'at Zera L'Vatalah "Wasting Seed"

We discussed the prohibition of "wasting seed" at length in our blog before, so I will limit my discussion here. I refer you to the extensive series of posts which began here.  I highly recommend that you read through that series before you draw any conclusions.

If one understands that any extravaginal ejaculation falls under this prohibition, then clearly many homosexual practices between males would be prohibited even if they don't invove penetrative intercourse.  Even according to the conclusions of my analysis, one is left with some questions about homosexual acts between men.  For the most part we concluded that masturbation in the context of a marital relationship or masturbation that occurs occasionally due to sexual stimulation that is non deliberate are not prohibited.  How does or doesn't this apply to homosexual relationships?  We clearly have some work to do.

Halachic Issue # 4 - Marriages Between Same-Gendered Individuals

Another potential Halachic issue related to homosexual relationships is related to the marriage of same-gendered individuals.  The source of this is the following Sifra, in Acharei Mot 8:8:

"Do not do like the actions of the people of Egypt or the people of Canaan  (Leviticus 18:3) One might think that this means that one should not build buildings or plant trees as they do?! the Torah teaches U'Vechukoteihem - and in their ways you shall not go.  I (God) only spoke negatively of the ways (chukim) that have been set in place in their societies for them and their ancestors for generations.  and what did they do? A man would marry a man, and a woman would marry a woman, a man would marry a woman and her daughter, and a woman would marry two men, therefore it states "In their ways you shall not go"

This Sifra is often quoted during discussions of gay marriage and Halachah.  It would certainly seem to be prohibiting the consecration of homosexual relationships through marriage.  

As I said above, each of these issues need to be analyzed and taken apart in detail as we explore the Halachic ramifications that may or may not apply to homosexual male relationships.  In my next post, I hope to begin our discussion of the nature and scope of the first Halachic issue, penetrative intercourse between two men.

Homosexuality and Halacha

The subject I am about to begin is another extremely challenging one. Before I begin the halachic discussion, I must mention a few of my limitations and intentions. This is going to be quite different than my previous topics. I will explain why.

First, I am not an expert in the subject of homosexuality. Since I am going to begin with a focus on male homosexuality, my field of medicine does not expose me very often to the direct care of male homosexuals. I am deliberately not going begin this series with an analysis of the entire spectrum of human sexuality. This would be broad indeed, and would include the entire spectrum from exclusive heterosexuals to all of the LGBTQ identifications and beyond. The reason is not because the rest of the spectrum is not important, rather it is because my expertise, in this blog, is Halachic. One of the primary halachic conflicts that relate to sexual orientation arises with male same-sex activity. While there are myriads of other issues that raise potential halachic issues, this is the conflict that is most direct. So, I choose to discuss this first. In later blog series, I plan to cover the halachic issues that relate to lesbian relationships, transgender issues and more. 

I am also not a counselor or therapist that has experience in the counseling of gay men in the Halacha observant community. I am also not a community Rav. I therefore have no experience in helping families of gay men navigate the challenge of remaining integrated with a community that is often hostile to people with a homosexual orientation. 

However, I am a concerned Orthodox Jew, with many male friends who have "come out" and identified themselves as gay, and I am proud to consider them wonderful friends and members of my community. I am also the author of this blog, which is a halachic blog, and my purpose is to understand health care related issues in a halachically valid way. It is therefore very much within my level of expertise to discuss the halachot that are related to homosexuality. 

The issue of male homosexuality in halacha has some strong similarities to some of the other issues I have discussed so far, and some especially significant differences. Those of you that have been following my blog would be familiar with my discussions of organ donation and time of death, abortion, treating gentiles on shabbat, male masturbation, and more. You hopefully are also familiar with the "five principles" of rationalist medical halacha that I wrote in my first post. I suggest that you review those principles here. 

In almost all of the topics I have discussed so far, there has been a recurring theme. That is that throughout the centuries, the halachot have been heavily influenced by the perception of medical reality of the poskim of the time. The concurrent scientific and philosophical understandings of each issue had a heavy influence on the halachic decision-making process. This in turn influenced the development of halacha in subsequent centuries. This theme recurs in the most blatant way with the understanding of human sexual orientation. In this sense, the issue of halacha and homosexuality is like the other issues we have discussed. Our understanding and appreciation of human sexual orientation has changed dramatically within the lifetime of most of the readers of this blog. What was once thought to be a deviant psychological disease, is now understood to be simply a part of a large spectrum of naturally occurring human sexual orientations. 

That is the similarity between this topic and the previously discussed topics. But there is a significant difference as well. The difference lies in the all-encompassing nature of sexual orientation and a person's identity. Whether we like it or not, for better or worse, when a person identifies himself as homosexual the consequences are much more than that he must deal with a few halachic questions. The male identified homosexual must contend with social, communal, familial, religious, and many more issues that unfortunately come along with the territory. Not that it should be that way, but it is that way. 

This is more than a question of whether a certain act is or is not permitted according to Halacha. It will inevitably influence almost every aspect of a person's life within his community. This is true of all communities, but especially true within the Orthodox Jewish community. 

I cannot solve all the social and other issues.  However, I can examine the halachic issues there may bee, and how halacha may or may not determine what is or is not acceptable.  

My general plan is to discuss the following issues from a halachic perspective. Please do not hold me accountable to this particular order, and I may add or subtract a few of these topics as my blog develops. 

1. The halachic/legal status of the male homosexual (how his sexual orientation should/shouldn't affect the way he is treated in the community)
2. the halachic prohibitions that may or may not apply to same-sex male sexual activity
3. how the obligation to procreate does/doesn't apply to a male homosexual
4. the halachic status of male same-sex relationships

I have spent the last few months since my last post reading books, articles and other materials related to this topic, and of course studying the various relevant halachic source texts.  This by no means indicates that I know everything.  I therefore urge all of you to feel free to send me any source material that you think might be helpful for me to increase my knowledge and therefore enhance the quality of this blog.  I also urge you of course to comment publicly (preferred) or send me an email offilne if you have any comments, suggestions, disagreements etc.  I publish the overwhelming majority of comments to this blog, even when the opinions expressed are very different from my own.  I will not publish comments though that are rude or abusive in any way.

Wrapping up the "Husband in the Delivery Room" Topic

I would like to wrap up the "Husband in the delivery room" topic and tie up a few loose ends.

First, I have one more item from the list on the Yoatzot website that I need to deal with, which was item #5.  This was in reference to the rabbis who prohibit versus those who permit a husband from being present in the labor room.  Obviously, the reason for those who prohibit is based on their concern for the potential transgressions that we have been discussing in this series. The reasoning for those who permit is because they accept that one can take the precautions mentioned to avoid these transgressions.   

I noted that it seems from the language used by the website, that none of these rabbis actually encouraged the presence of the husband. However, the logical result of the arguments I have presented in this series should now be obvious to readers of this blog. If the husband's presence in the room will provide comfort to his wife and she will feel less anxiety, than it is a mitzvah for him to be there.

A few more comments are now called for. An anonymous commentor has been paying very close attention to my series and has made many helpful comments and criticisms.  In many cases, I was forced to amend and correct some statements that I had made. It is my goal to pursue Truth.  I capitalized the word "Truth" for a reason, as we know that "Chotamo shel HKB'H Emet" - "The seal of God is Truth".  I sincerely appreciate comments that are made with the goal of the pursuit of truth. I am very happy that this anonymous commenter has engaged me in real conversation.  Even if we disagree on some major points.

This blog differs from some other blogs in one fundamental way.  As I am anonymous myself, I completely respect the fact that many people do not want to share their identity.  I actually find that in some cases, anonymity allows people to speak their minds honestly and say things they may not have been willing to say had their identities been known.  Obviously, if one uses anonymity in order to speak dishonestly or in vulgar or demeaning ways, such comments will not be allowed to appear on my blog.  But respectful comments in search of truth will always be welcome, no matter how much they agree or disagree with me.

Two issues must be discussed before I wrap up this subject.

Where does early labor bleeding come from?

Back in my post here, I argued that the bleeding of the early stages of labor is generally from cervical dilation and not uterine blood.  Uterine blood however usually begins in a significant way after the delivery of the baby, and especially with the separation of the placenta.  I therefore argued that even if there is some "bloody show" in labor prior to delivery, we can assume that it is "dam makkah" (non-uterine blood that comes from another known source such as from cervical dilation) and therefore she would not be a Niddah until the delivery of the baby.  At that point, even if there was no bleeding (which is essentially impossible anyway, as there always will be some bleeding) the bleeding would be from a uterine source, as the "opening of the womb" ("petichat haKever") has occurred with the delivery, and she would now have the status of a Niddah (or a "Yoledet", but for our purposes now that is essentially the same thing).

Some obstetricians, (mostly offline or in emails), challenged me by stating that there still could be some bleeding from within the uterus during labor.  They agreed with my basic premise that until delivery most of the bleeding would be attributable to the cervical dilation. They also agreed that unless there was a problem such as a placental abruption, that bleeding from the uterus would likely be a small amount, but it still "could be" that there is some uterine blood.

I responded to this objection by stating that as long as we have a clear "makkah" or "wound" to attribute the bleeding to, and she has a "chezkat tahara" - which means that she is in a known state of purity, we can always assume that the blood is from a cervical source.  She would not be a Niddah until she had definite uterine bleeding, which occurs with delivery.  This is a basic halachic concept, and I stand by this assertion.  The fact that Poskim have assumed that cervical bleeding is not "impure" is well known from the many poskim who assume that bleeding from "stripping  the membranes" or a doctors exam of the cervix is not considered blood of a Niddah.

"Dam Koshi" or "Bleeding Due to Labor" is always considered impure in modern times.

This was a serious objection to my idea that bloody show in early labor does not cause a woman to have the status of a Niddah.  It can get quite complex, so please allow me to summarize as follows.

The Talmud in Niddah 36b discusses the concept of bleeding that occurs as a result of the pain of labor.  It is clear from the discussion of the Talmud that the bleeding under discussion is from a uterine source, and that as a result of labor pain there can be uterine bleeding.  The Talmud therefore has a lengthy discussion regarding the need to determine if this bleeding occurred during her "days of Zivvah" or her "days of Niddah".  In the terminology of the Talmud, uterine blood can be of two major types, "Zivvah" blood, or "Niddah" blood.  How this is determined is dependent generally on timing. There are certain days within which the bleeding is considered "Zivvah" and certain days when it is considered "Niddah".  There is no modern scientific equivalent that can explain what these concepts refer to, so I cannot translate those terms into English. 

One thing is certain though, and that is that both categories of blood are from a uterine source.  The laws of each category are very different, and thus determining whether a woman is in her "Zivah" days or "Niddah" days is halachically important. In modern times we cannot be certain whether bleeding is "Zivvah" or "Niddah", therefore custom has become to be stringent in all cases and assume the worst.  

There is a third possible cause of uterine bleeding, and that is "dam Koshi" or bleeding due to labor. This refers to uterine blood that flows as a result of contractions.  My assumption has been, and remains, that when the Gemara refers to "dam Koshi" the gemara is discussing blood with a uterine source.  This is why the Gemara states that if the labor stops, we then would have to determine if she is a "Niddah" or a "Zavvah".  This only makes sense if we are talking about uterine bleeding. Obviously, if the bleeding was determined to be "Dam Makkah" (blood from a wound), there would be nothing to talk about.  She would be still considered in a state of purity.

The conclusion of the Halacha is that "dam koshi" (which as I just explained is blood of uterine origin) that results from labor, is considered pure if she is in the days of "Zivvah", and impure if she is in the days of "Niddah".  Since in modern times we have no way of differentiating between when a woman is in either state, we assume that she is in the days of "Niddah" and thus uterine bleeding as a result of labor would be considered impure no matter what.  

However, if we know that the likely source of the blood is a makkah, such as from cervical dilation, there would be no reason to assume that the woman is a Niddah at all until the actual birth, from which time she has the impurity of a Yoledet (a woman who gave birth).

I therefore still stand by my assertion that a woman in labor, even if she has bloody show, is not a Niddah.  I do admit that in cases where blood is "flowing", in which cases many doctors would have a suspicion that it may be coming from inside the uterus, that would be considered "Dam Koshi" and we would have to assume that she is a Niddah.  This is because we no longer differentiate between "Niddah" and "Zavvah" nowadays.  I can tell you as an experienced physician myself, that when such cases of "flowing" blood in early labor do occur, we are usually very concerned about the potential for a serious problem called an abruption or other types of obstetric complications.

It seems clear to me that the Talmud is referring to what the rabbis of the Talmud assumed to be uterine bleeding, not "dam makkah".  We now know, through our extensive knowledge of the physiologic process of parturition, that there can be both cervical and uterine sources of bleeding during labor. We also know that in most normal cases, the early bloody show if of cervical, not uterine, origin.  It is exceedingly reasonable to therefore state that Chazal were discussing uterine bleeding, not cervical.  The terms that the Talmud uses, such as "shefa", denote a flow of blood, which is very different than what most women experience.   One can say this regardless of your opinion regarding the much-debated issue of Chazal's understanding of modern science.  Whether you believe in the infallibility of Chazal regarding scientific issues, or whether you believe that Chazal's expertise in science was limited to the science of their contemporaries, this explanation remains the most coherent and understandable reading of the Talmudic discussions.

Allow me to summarize my conclusions in this series, so that I can move on to the next topic.

1. A husband should be encouraged to be there for the support of his wife in the delivery room, if his wife feels comforted by his presence.
2. A woman is not a Niddah until the birth of the baby, unless she has a significant flow of bleeding (more than just what is often called "bloody show")
3. Any supportive touch that gives comfort to the woman in labor, can and should be given by a husband to his wife, even if she already has the status of a Niddah
4. What the husband does or does not see should not be a matter of concern when in the delivery room.  Obviously, and it shouldn't be necessary to say this but I will anyway, he should always act in an appropriate, respectful, and modest manner.
5. How a woman dresses and whether or not she wants to use a mirror to help her push, is a decision that should be made by the woman in labor base on whatever she is comfortable with.  What the husband may or may not see should not even enter into the discussion.

I would love suggestions for new topics, you can feel free to send me messages by email or in the comments.

Observing One's Wife Undressed When she is NOT a Niddah

I have received some comments and emails that suggest that I need to be more clear about a few things before I move on with this topic.  I have been writing about what parts of his wife's body the husband may or may not see. There are many couples who are Halacha observant for whom the husband's close involvement in the process of labor is important. For these couples, the woman in labor feels comforted by his presence and his touch.  The strict rules as they are formulated in many contemporary books of Halachic guidance can be a serious problem for these couples, as they feel as if they are not being adherent to the Halacha.

Following the guidance of some of these sources can cause a potential problem. It can cause the focus of the couple's attention to be on things like what the husband may or may not see. Such as, does she need to be covered this way or that way in order to prevent him from seeing this or that. (see on the Yoatzot website the suggestions of a screen or not using a mirror etc...) 

This is the reason why I believe that my posts regarding this topic are important.  My goal is to point out that there is no Halachic issue with what he does or doesn't see in the labor room. Of course he should not be gazing at her with sexual innuendo as this would be completely innappropriate in this environment. The only issue that matters is her comfort and the ability of the staff to take care of her.   The husband is an integral part of her support system.  How she is dressed is a matter of concern, but only because we are concerned for her comfort.  Every woman is different.  Some would rather not have the husband there at all, some would rather be more dressed than others.  

This issue should be considered as part of the context of this entire series of posts. I am trying to paint a halachically valid picture of a birth where the issue is not about Niddah, when or where or whom can touch whom,  exactly when he is no longer allowed to touch her, what should be covered and not covered, and myriads of other questions.  I have personally seen cases where husbands are spending more time asking sha'alot then taking care of their wives. The picture I am trying to paint is one where the husband does what it appropriate to care of his wife when she needs him the most. The laws he should be concerned with are the laws of derech eretz, empathy, kindness and concern.

Now I would like to address item # 4 from the Yoatzot list I have been quoting this entire series.  That was the assertion that one is never allowed to look upon the genitalia of his spouse, even when she is not a Niddah.  This clearly contradicts almost everything I wrote in the last post. I brought a long list of sources, including the Talmud in Nedarim itself, that only prohibit this when she is a Niddah. So where does this come from? How can we reconcile all of this?

I will start with the Shulchan Aruch (SA) (Rabbi Yosef Karo 1488-1575), trace ourselves back to his sources, and then try to figure out what is going on:

One may not look in that place (the genitalia) because anyone who looks in that place has no shame and he is trangressing the (command of) "one shall be modest as he goes with God (Micah 6:8)" (Shulchan Aruch, Orach Chaim 240:4)

The SA is discussing the appropriate behavior between man and wife when she is not a Niddah.  Didn't the Talmud in Nedarim 20 explicitly state that this prohibition only applied to a Niddah? Where did the SA get this from?   

The Tur (Rabbi Jacob ben Asher 1270-1340) is the source of the SA, as can be expected.  While discussing appropriate sexual behavior between a man and his wife, the Tur quotes the Talmud in Nedarim, which he quotes almost verbatim.  However, he only quotes the begniing of the Talmudic passage, not the conclusion:

Rabbi Yoḥanan ben Dehavai said: The ministering angels told me four matters: For what reason do lame people come into existence? It is because their fathers overturn their tables, i.e., they engage in sexual intercourse in an atypical way. For what reason do mute people come into existence? It is because their fathers kiss that place of nakedness. For what reason do deaf people come into existence? It is because their parents converse while engaging in sexual intercourse. For what reason do blind people come into existence? It is because their fathers stare at that place. (Nedarim 20a, as quoted in the Tur, Orach Chaim 240)

The Tur does not quote the conclusion of the Gemara which states:

 Rabbi Yoḥanan said: That is the statement of Yoḥanan ben Dehavai. However, the Rabbis said: The halakha is not in accordance with the opinion of Yoḥanan ben Dehavai. Rather, whatever a man wishes to do with his wife he may do. He may engage in sexual intercourse with her in any manner that he wishes, and need not concern himself with these restrictions. As an allegory, it is like meat that comes from the butcher. If he wants to eat it with salt, he may eat it that way. If he wants to eat it roasted, he may eat it roasted. If he wants to eat it cooked, he may eat it cooked. If he wants to eat it boiled, he may eat it boiled. And likewise with regard to fish that come from the fisherman. (Nedarim 20b)

The second quote was the conclusion of the Talmud, which was also quoted by Maimonides, and we have already discussed several times in this blog. Why does the Tur choose to mention the earlier discussion when the conclusion is that these sexual restrictions are not valid?  The conclusion of the Talmud actually is that all of the above sexual behaviors, including "staring at that place" is permitted! So why would the Tur choose not to mention the conclusion?  Also, remember the statement of Rav Yosef that explicitly limits the restriction of looking to a Niddah:

Rav Yosef said: And this relates to all women, including his wife when she has the status of a menstruating woman. Rabbi Shimon ben Lakish said: The heel of a woman that is mentioned is not the heel of the foot, but the place of uncleanliness, i.e., the genitalia, and it is called a heel as a euphemism, as it is situated opposite the heel. (Nedarim 20a) 

The source of the Tur is explained in the Beit Yosef (same author as the SA). The Beit Yosef brings the source from the Ra'avad (Rabbi Avraham ben David 1125-1198) (my translation):

...(commenting on the above passage in the Tur) ... The Ra'avad of blessed memory in the "Gates of Holiness" writes that those who look upon "that place" are violating the verse which states "one shall be modest as he goes with God (Micah 6:8)" and they are ridding their countenance of any shame as it also states "in order that fear (of God) should always be upon your faces (Exodus 20:16)" this is the shame that (prevents one) from sinning, as anyone with shame is prevented from sinning, and certainly those who kiss (in the genitalia) and even mores o they are transgressing the (prohibition against) "do not do disgusting things etc...(Leviticus 11:43)" and the Ra'avad writes further that anyone who looks upon the "heel" (euphemism for genitalia) of a woman will have children that are not proper, from here we see that it is not proper to look upon the place of dirtiness at all even with his own wife as anyone who does so has no shame and worse he is inciting his sexual desire ... (Beit Yosef , Orach Chaim 240:11:1

This is why the SA wrote that one may not look upon his wife's genitalia even when she is not a Niddah.  However, virtually all of the poskim we reviewed in our last post understood that the Talmud concludes against these prohibitions. The law against looking upon one's wife's genitalia was only a restriction when she is a Niddah.  The Ra'avad above quotes only the beginning of the Gemara in Nedarim that states the restriction but ignores the statement of Rav Yosef that explicitly limited this prohibition to when one's spouse is a Niddah. What is going on here? Why do the Ra'avad, the Tur, and the SA ignore the conclusions of Rav Yochanan and Rav Yosef?

For starters, we must point out that the Rama (Rabbi Moshe Isserles 1530-1572) in his comments on the SA, does point out that this is not the conclusion of the Talmud. He quotes the words of the Rambam, who concludes as the Talmud in Nedarim does, that all of these behaviors are permitted:

Note: A man may do with his wife whatever he desires (with her consent, this statement is addressing acceptable behaviors, consent is discussed elsewhere) he may have intercourse at whatever time he desires, and he may kiss her in whatever body part he desires, and he may have intercourse with her either in the normal way (vaginal) or in the abnormal way (anal) or any body parts.. Rema, Even Ha'ezer 25:2)

It is clear that the Rema is stating the Halacha is that the restrictions of Rabbi Yochanan ben Dehavai stated were not the conclusion, and that as the Rambam said, and as we explained in the previous post, there is no restriction against looking upon one's wife's genitalia when she is not a Niddah and is permitted to him.

In addition to the seemingly inexplicable rulings of the Ra'avad against the simple meaning of the Talmud, there is another question.  The Rama wrote his note which disagreed with the SA in Even Ha'ezer, but he did not make this same comment in Orach Chaim.  In Even Ha'ezer the topics discussed are those of forbidden sexual relations.  In Orach Chaim the SA discusses general behavior and how one is supposed to live a holy lifestyle.  In order to explain all of this, I am going to answer these two questions together. 1) why did the SA seem to ignore the conclusions of the Talmud? and 2) Why did the Rama not write his comment in Orach Chaim? 

There are three general approaches that attempt to explain these discrepencies.

The most stringent - both the SA and the Rama agree that it is prohibited

One understanding is that there is no disagreement between the Rema and the SA regarding the law of not looking at the genitalia of one's spouse. This opinion would declare that both the SA and the Rama hold that it is indeed prohibited even when she is not a Niddah.  The basis would be the Ra'avad we quoted above. According to this understanding, when the Rama wrote in Even Ha'ezer that he may kiss "any limb" he really meant "any limb except the genitalia". This is the understanding of the Beit Shmuel (Rabbi Shmuel Feivish 1650-1706) and others. This explains why the Rama did not comment in Orach Chaim - because he simply agreed with the SA.

But doesn't this contradict the conclusions of the Gemara?  There are various explanations among those who take this approach. The most common is as follows.  It is true that when a woman is a niddah, the law is not to gaze as that may lead to transgressing the sin of relations with a Niddah.  It is also true that when she is not a Niddah, that particular law does not apply. This is the law that Rav Yosef was referring to when he said that it only applies when she is a Niddah.   

However, there is also a different law derived from the verse that teaches us not to do "disgusting" things, and a law that commands us to "walk modestly with God". It is this law that applies even when she is not a Niddah, and it is the reason that the Ra'avad prohibited this practice.  It is crucial to note that according to this understanding, these laws would not be of Talmudic origin (as the conclusion of the Talmud was clear), but rather they would be due to the understanding that such things are considered "disgusting" and "shameless' and "immodest".  The Ra'avad is simply stating that although there may be no specific sexual prohibition in the Torah aginst these acts, they would still fall under the general category of being immodest and disgusting.

This understanding is the basis of the law as written on the Yoatzot website that prohibits looking at one's spouse's genitalia even when she is not a Niddah.

The middle road - it is an argument between the Rama and the SA

The second approach is to assume that the Rama and the SA disagree on this matter. This approach is taken by the GRA (Rabbi Elijah of Vilna, also known as "the Vilna Gaon" 1720-1797).  He explains that the Rama does not mention the same objection in Orach Chaim as he did in Even Ha'ezer simply because he assumed that you know what he had already written elsewhere. So the lack of a comment means nothing, and the opinion of the Rama does not need to be "ammended" in the way that the Beit Shmuel did.  The SA holds like the Ra'avad in the same way that we explained in the first approach.  The Rama holds like the Rambam who clearly holds that these behaviors are permitted.

If this is true, then Sephardic Jews who generally follow the rulings of the SA would thus be more stringent and not allow this even when she is not a Niddah.  Ashekanzic Jews who generally follow the Rama would thus be more lenient and allow it. (It is worth noting that the GRA himself rules according to the Ra'avad and the SA that it is forbidden, despite his understanding that the Rama permitted it.) Rav Yehuda Henkin (Jerusalem 1945 - present) in a responsa in his book Sefer Bnei Banim 4:16#3 brings many opinions on both sides of this issue, some that land on the side of Rambam and Rama, and others that land on the side of Ra'avad, the SA, and the GRA.  He determines that there are ample authorities that would allow one to be lenient like the Rama.

This second understanding would lead to the conclusion that it should depend on whether one follows Ashkenazic or Sephardic customs.

The most lenient - both the SA and the Rama agree that it is permitted

This third and most lenient approach seems to me to be the most consistent with all of the evidence.  This approach contends that the SA in Orach Chaim was not discussing law at all, but rather he was discussing "Midat Chassidut" or "pious behavior". Even the SA agrees with the conclusions of the Talmud that these behaviors are permitted by the letter of the law. The reason that the Rama did not comment in Orach Chaim is that he had no reason to argue with the Sa when all the SA was doing was discussing advice on how to be holy.  

In other words, we need to differentiate between laws and spiritual advice.  We have referred in this series to laws known as the "harchakot".  These were instituted by the Rabbis to prevent a couple from transgressing the sin of relations with a Niddah.  One of these is the law against gazing at the genitalia of one's wife.  This was the prohibition referred to in the Gemara in Nedarim. When she is not a Niddah, there is no such law.

However, in Orach Chaim the SA is simply discussing "proper" sexual behavior and how a person seeking holiness should behave.

This third approach assumes that even the Ra'avad himself only meant to give advice for holy behavior   when he stated that one "may not" look at his wife's genitals.   This makes sense, because when the Rambam discussed the Niddah restrictions, the Ra'avad that we quoted last post commented and added the restriction against looking at one's wife's genitals.  He only mentioned this as a rule in the context of niddah, but not where the rambam discussed general sexual behavior.  I know this is not a proof, but it certainly seems that way.

The general language of the Shulchan Aruch in the entire chapter 240 certainly seems to indicate that this chapter is about advice on piety and not about actual laws. Here are a few examples, beginning with the first statement of the chapter:

If a person is married, he should not be too frequent in his relations with his wife, but rather according to the schedule specified in the Torah. Idle men, who have means of living and do not pay taxes, their schedule is once every day; hired hands who work in another town and sleep every night at their homes, once a week; and if they work in their own town, twice a week; donkey drivers, once a week; camel drivers, once in thirty days; seamen, once in six months; the schedule of Torah Scholars is from Friday night to Friday night  (Shulchan Aruch, Orach Chaim 240:1)

Clearly, the statement of "not being too frequent" in sexual intercourse with one's spouse is a not a law, but rather it is advice on piety. Nowhere does the Torah tell us that there is a limit on how many times someone can have intercourse with his spouse.

Another example:

Even when he is with her, he should not seek his own pleasure, but be like someone paying his debt that he owes her at her schedule, and to fulfill the obligation of his Creator  (Shulchan Aruch, Orach Chaim 240:1)

Clearly, the Torah does not require a man to try not to have pleasure when he has intercourse.  This is obviously just advice for piety.  How relevant this is to us today and whether this is how we should behave today is an issue we will have to leave for another blog series.  But it is obvious that the SA is not discussing "laws" in this chapter. This third approach is taken by many modern poskim, including Rabbi Elyashiv Knohl (Rabbi of Kibbutz Kfar Etzion, 1948 - 2018) in his book Sefer Et Dodim, and Rabbi Shmuel Kedar (Jerusalem, 1953-2006) in his book Sefer Kedushat Ohel.

The conclusion of this third approach, there simply is no law that states that the husband may not see his wife's genitalia when she is not a Niddah.  Not according to anyone.

We have presented the case for or against item #4 on the Yoatzot list.  In the next post, I plan to address item #5, which will complete our discussion. I also plan to comment on a few issues that people have raised in various emails and comments on the blog.  Hopefully, the next post will thus wrap up the issue of "the husband in the labor room".