Marrying Within the Tribe - A Precedent for Verse Reinterpretation?

The plan was to discuss next whether or not it is halachically possible to have an act be permissible in one context and prohibited in another. I will get to that discussion. However, a reader of this blog, Rafi Ganz, sent me a copy of his article on the topic of marrying within the tribe. I owe him a great debt of gratitude for bringing these sources to my attention. Please check out his blog where he recently posted his thoughts, which I draw upon extensively in this post. 

In the previous post I described in detail what I am trying to accomplish. I explored two potential precedents for reinterpreting a verse and changing the accepted Halacha. The prohibition against marrying a Moabite, and the exclusion of gentiles from many categories in Halacha.

My conclusion was, that if the appropriate criteria are met (as I described in detail), a verse can be reinterpreted even when it has practical Halachic ramifications and remain within the accepted boundaries of Orthodoxy. Thanks to Rafi, I now have a third precedent.

Tribal Intermarriage

In the story of the daughters of Zelaphechad, the law is established granting women the right to inherit property if there are no male siblings. A faction of the members of the Tribe of Menashe were concerned that their tribe could potentially lose property to another tribe should such a woman marry a male member of another tribe.  In response to their concern, Moshe instructed:

So Moses, at the LORD’s bidding, instructed the Israelites, saying: “The plea of the Josephite tribe is just. This is what the LORD has commanded concerning the daughters of Zelophehad: They may marry anyone they wish, provided they marry into a clan of their father’s tribe. No inheritance of the Israelites may pass over from one tribe to another, but the Israelites must remain bound each to the ancestral portion of his tribe. Every daughter among the Israelite tribes who inherits a share must marry someone from a clan of her father’s tribe, in order that every Israelite may keep his ancestral share. Thus no inheritance shall pass over from one tribe to another, but the Israelite tribes shall remain bound each to its portion. (Bamidbar 36:5-9)”

The simple understanding of this verse is that due to the concern for the integrity of inherited tribal lands, there is a prohibition against a woman with tribal property to marry someone from another tribe.  The potential ramifications of such a prohibition are staggering. It is easy to imagine how to the ultimate fracture of the Israelite nation. It should be obvious that encouraging intermarriage among the tribes is crucial to building a sense of unity and peoplehood among the tribes of Israel.  Any restrictions on intermarriage would clearly have the opposite effect, and bring about division and tribalism.  Furthermore, it places an onerous burden on women seeking appropriate marriage partners.  The Talmud however, describes how this problem was handled:

The mishna taught that Rabban Shimon ben Gamliel said: There were no days as happy for the Jewish people as the fifteenth of Av and as Yom Kippur. The Gemara asks: Granted, Yom Kippur is a day of joy because it has the elements of pardon and forgiveness, and moreover, it is the day on which the last pair of tablets were given. However, what is the special joy of the fifteenth of Av? Rav Yehuda said that Shmuel said: This was the day on which the members of different tribes were permitted to enter one another’s tribe, by intermarriage. It was initially prohibited to intermarry between tribes, so as to keep each plot of land within the portion of the tribe that originally inherited it. This halakha was instituted by the Torah in the wake of a complaint by the relatives of the daughters of Zelophehad, who were worried that if these women married men from other tribes, the inheritance of Zelophehad would be lost from his tribe (see Numbers 36:1–12). What did they expound, in support of their conclusion that this halakha was no longer in effect? The verse states: “This is the matter that the Lord has commanded concerning the daughters of Zelophehad, saying: Let them marry whom they think best; only into the family of the tribe of their father shall they marry” (Numbers 36:5). They derived from the verse that this matter shall be practiced only in this generation, when Eretz Yisrael was divided among the tribes, but afterward members of different tribes were permitted to marry. On the day this barrier separating the tribes was removed, the Sages established a permanent day of rejoicing. (Taanit 30b)

Apparently, at some point in history the scholars were faced with a dilemma.  It is reasonable to assume that the problem they faced was the resulting disunity between the tribes and the limitation of women's marriage choices. The scholars examined the verse carefully, and noted the use of the term "Zeh Hadavar - This is the matter".  This term, based on its usage elsewhere and the context, suggests that the tribal intermarriage prohibition was only meant as a temporary measure for the generation that divided the land originally.  Thus resulted the declaration that the prohibition was null and void.

This change in Halacha was very well received by the people.  It helped facilitate a positive change in the relationships between the tribes, and was likely an important step in the unification of the tribes into one national entity.  Hence the people celebrated and declared a special holiday of Tu B'Av.

Interestingly, many Rishonim and Geonim (early Halachic authorities) still maintained that at least part of this chapter in Numbers was meant to be forever. They felt that only the restriction against intermarriage was nullified, but the restriction against transferring tribal property remained in force forever (at least as long as the tribes retained distinct boundaries, which ended completely with the destruction of the first Temple). This results in a strange combination of verses.  How would this work?  the Ramban in Bamidbar (Numbers) 36:7 explains as follows: If a woman from Dan who owns property in Dan's tribal lands marries a man from Asher, any property would revert to her family in Dan upon her death, and not to her husband or children in Asher. 

This opinion raises a serious difficulty.  As long as the concern for intertribal land transfer was only the reason for the prohibition of intertribal marriage, then the ban against marriage would accomplish its purpose.  upon nullification of the marriage ban, there is no longer an issue of land transfer either.  The concern for national unity outweighs the concern of an exchange of property.  However, if we claim that the ban against transfer of land is a separate and distinct prohibition, and thus it remains in force even after the nullification of the marriage ban, then why do we need a marriage ban at all?  Land transfer is no longer a concern, even for the first generation! Rav Yerucham Fishel Perlow deals with this issue extensively here and attempts to reconcile this obvious incongruity, with limited success.

Interestingly, as Rafi Ganz points out, the law prohibiting transfer of land from one tribe to another is only found in the Ramban and other earlier Geonim such as R' Saadiah Gaon in his Sefer HaMitzvot. It is nowhere to be found in the Talmud or Chazal.  The later authorities clearly are interpreting the verse directly and inferring a mitzvah.  This is important for our case, as this is similar to what we are trying to do with our analysis of male homosexuality. There are two major distinctions though between our case and this one.  First, intertribal property transfer is a prohibition that they are inferring from the verse, while we are attempting to permit something that previous generations assumed was prohibited.  Secondly, we are dealing with a practical and relevant mitzvah, while the idea of inheritance of tribal property was only relevant during that period of history when the Land of Israel was settled and divided along tribal lines.  Nonetheless, it is still an important precedent.

Our analysis in not over though. Let's look again at the Gemara in Taanit.  What exactly happened on Tu B'av?  Did they really change an accepted Halacha? There are several explanations of the Gemara in the Rishonim:

1. Rashbam (Bava Batra 121a) - Tu B'av was simply the date of transition between the first generation and the second generation.  
2. Tosafot Rid (Bava Batra 121a) -  The limited nature of the law was known to a select few from the outset.  At this later point in history it was revealed that the prohibition of intermarriage between tribes was only meant to be temporary.  The reason for the concealment was out of respect for the original law.  
3. Rashi - In his usual fashion, Rashi writes somewhat cryptically.  He writes the language "Ve'Amdu Ve'Hiteeru davar zeh"  ("they stood up and permitted this action")  It seems likely that Rashi understood until a certain time intertribal marriage was thought to be prohibited, and then at a certain time in history the scholars got together and declared it to be permitted.

If we explained the Gemara according to Tosafot Rid or Rashbam, there is no indication that any law can be changed by reinterpretation.  However, the simple reading of the Gemara and Rashi's commentary is that the law was changed by a reinterpretation of the verse.  The ramifications of this idea for our discussion should be obvious now.  An accepted Halacha that prohibited certain marriages was changed.  this change came about because of a serious moral and communal problem, and a reinterpretation of the meaning of a verse in the Torah.

The famous Rabbi Aryeh Leib of Metz, known as the "Sha'agat Aryeh" after his popular book, asked several questions on the explanation of the Rashbam.  Primarily, if Tu B'av was the date between the two generations, then what kind of celebration could have been warranted?  Those of the first generation were still prohibited, and the children who are of the second generation had been permitted the entire time! In other words, no one was actually given permission to marry who hadn't already been permitted to marry!  due to this difficulty and others, he rejects the Rashbam's explanation.

The Tosafot Rid also has some glaring problems. Primarily, it seems extremely inappropriate to prohibit countless women from marrying for an unknown number of generations just to respect a law that was known to be no longer relevant!  How could the Rabbis enforce a marriage restriction that didn't exist?

On the other hand, if we revert to the simple reading of the Gemara and Rashi's explanation, everything would make perfect sense.  It was originally assumed that the prohibition was meant to be forever. At some point the scholars reevaluated the verse and determined that it was only meant to be temporary,  R Aryeh Leib (translated by Rafi Ganz) thus declares that the proper explanation in like our understanding of Rashi:

Rather, it appears to me that it was on the fifteenth of Av that they initially inferred that the prohibition only applies to the first generation. This is similar to the idea found in the Midrash in which Boaz tells Ruth that if she would have come earlier she would not have been accepted (i.e. they would not have been able to marry) because the specific exegesis limiting the marriage prohibition to a Moabite man but not a Moabite woman, had not yet been derived. From here we see that not all the interpretations of Torah were received from Moshe (Gevurot Ari, Ta'anit 30b)

R' Aryeh Leib makes his point clearly, and even compares it to the case of the Moabite that we discussed in the last post.  According to R Aryeh Leib, in both of these cases,  the verse was understood one way by the authorities for an extended period of time, and certain marriages were prohibited.  At a later date, presumably due to the pressing need, the authorities reevaluated the verses and thus nullified the prohibitions.  Thus a holiday of Tu B'Av was born!

We had discussed previously several understandings of the Ruth story, so I wasn't sure if I could use it as a precedent for our discussion.  However, according to R' Aryeh Leib, this is clearly a precedent as well.  He explicitly states, in no uncertain terms, that some interpretations, even ones with major practical halachic ramifications, were not received by Moshe.  These were left for later authorities to determine from their understanding of the verses themselves.

Most importantly, he clearly states that the intertribal marriage prohibition was nullified based on a new understanding of the Torah's words.

We now have three clear precedents for the reinterpretation of verses. The Moabite prohibition according to R' Aryeh Leib, the gentile restrictions according to Meiri, and now the tribal intermarriage restrictions according to Rashi.  All three of these precedents canm be applied to Rabbi Greenberg's interpretation of the verses in Leviticus regarding male homosexuality. 

The statement of R Aryeh Leib regarding Torah rules learned through exegesis should not come as a shock. He is only reiterating a well known opinion of the Rambam:

When the Great Beit din, that derived through the rules of exegesis, according to what seemed to their perception that a law is as such and they thus issued a ruling, and another court succeeded them and they perceived another reasoning that contradicted the original ruling, the second court can contradict the first and judge according to what seems correct to them, as it states "To the judge who will be in that age. (Deuteronomy 17:19)" You are only obligated to follow the court in your generation. (Mishna Torah, Hilchot Mamrim, 2:10)

It is clear from the Rambam, that rules derived by scholars using the accepted rules of exegesis can be reinterpreted by another future rabbinic court, even one that is of lesser stature and in a later time of history.  The Rambam has already made it clear in many places (see his introduction to peirush mishnayot for example) that when it comes to laws that have a clear tradition from Moshe that these cannot be changed.  It is worthwhile to review the notes of the Kessef Mishna, by the author of the Shulchan Aruch, R' Yosef Karo, on this passage of the Rambam.

His words are lengthy and complex, so I will not quote them in full.  However I will mention several points that are clearly obvious from the words of R Yosef Karo:

1. "... If the basis of the argument is such that one (beit din) derives using one of the rules of exegesis and another uses a different rule (to come to a different conclusion) then certainly (the second court) is able to nullify the decision (of the first court) even if it is not as great (as the first) in wisdom and in number"  The Rambam is of the opinion that as long as one is using the appropriate methods of interpretation, a future court can reinterpret the verse.  This is because the rules derived from verses by this method are not based on Sinaitic tradition.
2. "...If this is true, why can't the Amoraim (in the Talmud) disagree with the Tannaim (of the mishna ....maybe one can say that at the time when the Mishna was completed, they established accepted (upon themselves) that later generations should nom longer argue on the earlier ones, and they did the same at the time of the completion of the Talmud ..."  It is clear that the "beit din hagadol" referred to by the Rambam was not just the great Sanhedrin (as some incorrect translations seem to suggest, see the Chabad website for example). It refers to any court of Rabbinic scholars,  as the Mishna was completed several generations after the destruction of the Temple.

In principle then, a court today is allowed to contradict the words of a previous court, as long as it is over a matter of interpretation of a verse. We no longer may contradict the Talmud, due to the acceptance mentioned by Rav Yosef Karo.  However, as long as one is not contradicting the Talmud, there is no reason not to engage in the interpretation of the verses of the Torah.  Even when there are practical Halachic ramifications.

Rav Kook addresses this very question with regard to changing laws that were established by Chazal.  He was asked a question as to whether or not the Torah can go through "development" and change over time in response to changes in the historical understanding of morality.  His response is as follows (my translation):

(he describes the conditions of the Jewish people being restored to their land, the Great Sanhedrin being seated once again in Zion etc...) ... and if there should arise a question regarding some established law in the Torah that according to the contemporary morals and ethics it seems that this law needs to be understood in a different manner, then if in a truthful way in the hands of the great Beit din, it is decided that this law was only stated in a certain time (of Chazal) under certain conditions that no longer exist, the certainly they would be able to find an origin (for this decision) in the Torah and due to the confluence of the historical changes and the exegesis of the verses these would not be things that just happened by chance, but rather they would be signs of the wisdom derived from the Light of the Torah, and they (would demonstrate) the truth of the Oral Law, that we are required to listen to the Judge who will be in that age .... (he continues to describe that in our current degraded state of spirituality we cannot go against the words of Chazal)" (Iggerot Ha'Reiyah vol 1, page 103)

A careful reading of the above quote makes it clear that a Sanhedrin in the Temple is only required in order to change a law that was established by Chazal. In such a case, if there is a serious moral concern and the verse can be reasonably reinterpreted, a law may be changed.  The serious moral concern is certainly present in our conundrum related to male homosexuality.  However, we are not changing any laws established by Chazal.  I have attempted to demonstrate in this blog so far that there is no place in Chazal where they declared emphatically that the verse includes both humiliative and penetrative male/male intercourse. (PLEASE read my prior posts if you haven't done so already.  Every post MUST be understood only with the understanding of the arguments I have previously made.) so there is no reason why we should not be able to convene the appropriate scholars and determine if such an understanding of the verse could be accepted as practical Halacha.

Korban Pesach (Paschal Lamb) on Shabbat

Thanks again to another reader of this blog, whom I do not yet have permission to mention by name, I have come across another valuable precedent.

The Gemara in Pesachim deals with the question of Erev Pesach that falls out on a Shabbat.  Can one bring the Paschal Lamb on Shabbat:

The Sages taught a baraita with regard to the basic halakha governing the eve of Passover that occurs on Shabbat: This law was forgotten by the sons of Beteira, who were the leaders of their generation. The fourteenth of Nisan once occurred on Shabbat, and they forgot and did not know whether the Paschal lamb overrides Shabbat or not. They said: Is there any person who knows whether the Paschal lamb overrides Shabbat or not? They said to them: There is a certain man in Jerusalem who came up from Babylonia, and Hillel the Babylonian is his name. At one point, he served the two most eminent scholars of the generation, Shemaya and Avtalyon, and he certainly knows whether the Paschal lamb overrides Shabbat or not. The sons of Beteira sent messengers and called for him. They said to him: Do you know whether the Paschal lamb overrides Shabbat or not? He said to them: Have we but one Paschal lamb during the year that overrides Shabbat? Do we not have many more than two hundred Paschal lambs, i.e., sacrifices, during the year that override Shabbat? They said to him: From where do you know this? He said to them: “Its appointed time” is stated with regard to the Paschal lamb and “its appointed time” is also stated with regard to the daily offering, for the verse says: “Command the children of Israel and say to them, My offering, the provision of My sacrifice made with fire, for a sweet savor to Me, shall you observe to offer Me at its appointed time” (Numbers 28:2). From here we learn that the daily offering is brought even on Shabbat. Thus, the daily morning and afternoon offerings are brought on more than fifty Shabbatot over the course of the year, and two sheep are offered every Shabbat as additional offerings, for a total of more than two hundred sacrifices a year that override Shabbat. Just as the expression “its appointed time,” which is stated with regard to the daily offering, indicates that it overrides Shabbat, so too “its appointed time,” which is stated with regard to the Paschal lamb, indicates that it overrides Shabbat.. And furthermore, it is an a fortiori inference: If the daily offering, the neglect of which is not punishable by karet, overrides Shabbat, is it not right that the Paschal lamb, the neglect of which is punishable by karet, should override Shabbat? After Hillel brought these proofs, they immediately seated him at the head and appointed him Nasi over them, and he expounded the laws of Passover that entire day. In the course of his teaching, he began rebuking them [mekanteran] them with words. He said to them: What caused this to happen to you, that I should come up from Babylonia and become Nasi over you? It was the laziness in you that you did not serve the two most eminent scholars of the generation living in Eretz Yisrael, Shemaya and Avtalyon (Pesachim 66a)

It is clear from this Gemara, that although Hillel was appointed the Nasi and thus considered a greater scholar, the other scholars were still comfortable presenting their alternative views regarding this Halacha.  In all of these cases, the argument hinged upon the exegesis of the verses and their meanings.

Indeed, the famed Rav Meir Simcha of Dvinsk understood the Gemara this way as well.  In his commentary on the passage of the Rambam that we quoted earlier regarding the ability of one beitdin contradicting another as long as the argument revolves around the understanding of the meaning iof a verse, he says as follows:

....(Rabbi Meir Simcha proves that regarding areas of dispute over the interpretation of a verse, any group of scholars can contradict earlier scholars regardless of the size of the beit din or the stature of the beit din, he then continues) .....Therefore it is understandable how they issued a judgement that the Paschal Lamb supersedes Shabbat, As although it is frequent that Erev Pesach falls on Shabbat, they still forgot the tradition, and they held therefore that one should derive the law from the usual rules of Torah exegesis, just as Hillel responded by judging (through exegesis of the verse), and then they argued on Hillel (with their own textual analysis) This makes it clear that one smaller and later beit din is allowed to change the law based on textual analysis, until Hillel eventually proved his point by remembering the tradition passed down to Shemaya and Avtalyon. (i.e. if not for the tradition being remembered, the post-Hillel Beit Din would've been within their rights to prohibit  bringing the Paschal Lamb on Shabbat, despite disagreeing with the great Hillel) (Ohr Samayach, Hilchot Mamrim 2:1)

This is a clear and obvious fourth precedent for our case.  Despite an earlier Beit Din having determined the law based on their understanding of the verses, a later Beit Din is allowed to contradict that law if they understand the verses differently.  Rabbi Meir Simcha adds a fifth precedent as well.  Rabbi Yochanan ben Zakkai was of the opinion that a loaf of bread that contracted "third degree impurity" was considered impure.  He dervied this through the standard accepted method of exegesis by using a "Kal VaChomer" (and a fortiori inference).  He then stated:

After hearing Rabbi Akiva’s statement, Rabbi Yehoshua said: Who will remove the dirt from your eyes, Rabban Yoḥanan ben Zakkai, so that you could live and see this? As you would say: In the future, another generation is destined to deem pure a loaf that contracted third-degree impurity, as there is no explicit verse from the Torah stating that it is impure. (Sotah 27b) 

Once again, the Gemara makes it clear that when a law was derived from a verse, a later rabbinic court has the right to reexamine the verse and rule against the original law as long as they are using proper exegetical processes.  Rabbi Meir Simcha brings this as another proof to this opinion of the Rambam.

There are likely more such examples, and I would be happy to add more if the readership sends me any ideas.  But I think it has sufficiently been demonstrated that reinterpreting a verse even when the conclusions contradict a previously established law, is well within the bounds of Orthodox Halacha.

Now we can move on to the question we were going to address regarding an action being both permitted and prohibited.

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.

Does the Torah Actually Prohibit all Homosexual Intercourse?

I apologize for the time lapse between this post and my last one.  Honestly, I have been thinking about and reading about and studying this issue for quite some time.  Since we are about to read the portion of Leviticus this week  in synagogue that is the center of this discussion, I decided it was time to release this post.  I hope that all of my readers are willing to join me on this journey through a very challenging subject.  Those of you that have been following me for the last ten years have learned that this blog is not designed for those people who like to read a rant in which I express an opinion and throw around a few things to support my opinion.  You can go to FaceBook for that.  I will take the time necessary to take apart an issue from beginning to end, even if that takes several years and a lot of work.  More importantly, even if it means finding out that my preconceived ideas were completely wrong. 

We established in previous posts here that the prohibition in Leviticus 18 and 20 prohibits penetrative anal intercourse between two males.  We also wrote that this was how Chazal understood this prohibition, and how it was interpreted by Halachic authorities ever since.  Presumably, this would mean that if two adult men, both of whom are gay, had a consensual, loving, and committed long-term relationship, that sexual intercourse would be forbidden.

In chapter 13 of his book, Rabbi Steven Greenberg presents an analysis of the verses in Vayikra.  Many other scholars have made similar analyses over the years, and I cannot review all of them and their arguments.  I had to pick one, so I picked Rabbi Greenberg.  Very similar ideas were also presented in a famous (or infamous, depending on your perspective) speech given by Rabbi Joseph Dweck in May 2017.  He presented almost the same ideas but stopped short of claiming that we should apply these ideas in practical Halacha.  You can see his lecture here. I will present his basic argument, and then analyze if we can practically apply them and remain within the bounds of accepted Orthodox Halacha. 

I am aware that an exact definition of the term "accepted Orthodox Halacha" is not so easy to find. Please allow me to define it the way I understand it for the purposes of this blog.  Orthodox Halacha means that we interpret the Torah She'beKtav (the written Torah) according to the way that Chazal (the rabbis of the Mishna and Talmud) taught us in the Torah She'be'al Peh (the oral Torah).  If Chazal tell us how to interpret a verse in the Torah and then teach us practical Halacha on that basis, Orthodoxy demands that we follow that interpretation.  While it is true that there are "Shivim Panim La'Torah" (seventy "faces" - potential interpretations) to the Torah, we cannot decide on our own that we can change practical Halacha if it means interpreting a verse in the Torah in a manner expressly different from the way it was interpreted by Chazal. 

I will present Rabbi Greenberg’s argument as a series of points rather than by developing his entire narrative. If you want to see his entire argument, please see his book. These points are meant to read as a progression of arguments and observations leading to a conclusion. The numbering is not random. Forgive me please if I am oversimplifying his ideas. I ask his forgiveness in advance if I misrepresent his ideas, though I do think I do a pretty decent job summarizing them.  My goal is to present what is necessary for the purposes of my halachic discussion on this blog.  

1. In ancient societies, penetrative sex was perpetrated by the powerful against the weak. It was a demonstration of dominance over the weaker or younger party, and it was humiliating. (Such practices still exist of course, for a graphic and contemporary example, think of those prisoners who abuse other prisoners by sexually assaulting them. They are usually not homosexual predators; they are just predators)
2. Sadly, women were considered inferior, and the fact that men penetrate women during intercourse was seen as a way of showing domination. The domination of male over female was an integral part of the institution of marriage in much of the ancient world. 
3. Men who were on the receiving end of such intercourse were looked upon as if they were like women, in the sense that they were inferior and somehow beneath the "dominant" penetrator. In many ways, they were seen as if they had made themselves "like women". This was like willingly accepting an inferior and degraded status.
4. Homosexual relationships, in the sense of two men who were committed to each other in bonds of love and respect were just "not a thing" in those days. 
5. The verses in Leviticus are written in the context of other prohibitions against incest. By its' very definition, incest is an act in which someone abuses the trust that one has in a family member. The vulnerability of someone dependent on his/her family while a family member dominates and degrades the victim, is well understood by modern psychologists. The victim is typically helpless and has nowhere to turn, as the people who are supposed to protect them are the perpetrators. 
6. In this context, it makes sense that the Torah prohibits male/male intercourse as it is degrading to the victim, and even the willing victim is guilty of allowing himself to be degraded in a way unbecoming of God's creation.
7. When the Torah writes that one may not "lie with a man" it was already obvious that the intent was to prohibit penetrative intercourse, as this is what it always means and what it meant in every other verse. 
8. The only reason the Torah needed to add the term "as one lies with a woman" is to tell us that it is this type of denigrative and abusive penetrative sex that is prohibited between males. This would not apply to a loving, consensual, long-term relationship between two homosexual males. 

The attractiveness of accepting this as the reading of the verse is obvious. It would end our conundrum with which I began this blog thread.  It would both leave the prohibition of Leviticus intact, while still allowing for sexual activity between two gay and committed men. But can this be acceptable halachically? Does this violate the rule that we cannot interpret a verse contrary to the interpretation of Chazal when it changes practical Halacha?

I will henceforth refer to the type of intercourse prohibited by the Torah according to rabbi Greenberg as "humiliative", and the type of intercourse that would be permitted as "relationship".

The truth is that this interpretation of the verse feels forced.  I have always read the verse my entire life the standard way and concluded that the Torah prohibits male/male penetrative intercourse, period.  Every time I have read the sugyot in Shas, I assumed that Chazal read it this way as well.  Clearly, the poskim throughout history understood it this way.  I asked myself to play a thought experiment.  What if I had been taught Rabbi Greenberg's interpretation of the verses from childhood, how would I have learned the sugyot in shas?  What if I lived in a society like the one I just described in ancient times?  What if I had always assumed that what God found abhorrent was humiliative intercourse between men? Is it possible that Chazal really also understood it this way, and that if I started with a different idea of the meaning of the verse, maybe I would have read the gemara differently too? 

I am virtually certain that this post will be misunderstood by some readers, so I am going to try to be very clear about what I am about to do in this post:

1. The verses in Leviticus have been understood throughout the Halachic literature to be referring to all types of homosexual male/male penetrative intercourse
2. The poskim read both the Torah and Chazal with the above assumption intact
3. Rabbi Greenberg suggested that the Torah was only referring to humiliative, and not relationship intercourse (my terms, not his)
4. If Chazal interpreted the verse to be referring to all types of male/male intercourse, then we cannot as Orthodox Jews accept Rabbi Greenberg's suggestion, no matter how much we may want to
5. Is it possible that we have read Chazal incorrectly as well? Maybe Chazal also understood the verses to be referring only to humiliative intercourse?
6. If we can demontstrate that the above assumption is even possible, then although Rabbi Greenberg's suggestion certainly goes against many centuries of Halachic understanding, but it isn't completely outside of the Orthodox range of possibilites

The rest of this post will be discussing this one problem only. That is the question of whether it is possible that we have been reading Chazal wrong for all these years.  I am only asking if it is possible, not if it is true or not. There are many other issues that will be dealt with in future posts. Please bear in mind that this will be an exceptionally long journey. I beg the reader to allow me the opportunity to go through this process before you think you know what my conclusions will be. Here goes: 

In our previous discussion, we brought two Talmudic sources, one from Yevamot and one from Sanhedrin, which established that Chazal understood the prohibition of leviticus to be referring to penetrative intercourse between males.  Chazal certainly do not point out this differentiation between two types of male/male intercourse (which I will now refer to as "humiliative" versus "relationship" intercourse).  However, let's assume for the moment that Chazal understood it as a given that the male/male intercourse being prohibited was humiliative, as we described above.

While this may seem surprising to many of us at first, let me present the following analysis of every known reference in the Talmud regarding homosexuality.  I want to see if it is possible that Chazal, when they wrote of this prohibition, only meant humiliative intercourse.  If it is plausible, then Rabbi Greenberg's theory might be able to remain within the bounds of Orthodox halacha.  If not, then no matter how nice his explanation sounds, it cannot be considered acceptable within Orthodoxy.

Berachot 43b

Six things are disgraceful for a Torah scholar: He may not go out perfumed into the marketplace; he may not go out of his house alone at night; he may not go out wearing patched shoes; he may not converse with a woman in the marketplace; he may not recline and participate in a meal in the company of ignoramuses; and he may not be the last to enter the study hall. And some say that he may not take long strides and he may not walk with an upright posture. The Gemara elaborates on the statements of the baraita. He may not go out perfumed into the marketplace; Rabbi Abba, son of Rabbi Ḥiyya bar Abba, said that Rabbi Yoḥanan said: This prohibition only applies in a place where they are suspected of homosexuality. One who goes out into the marketplace perfumed, will arouse suspicion. Rav Sheshet said: We only said this with regard to his clothing that was perfumed, but with regard to his body, it is permitted, as his sweat causes the fragrance to dissipate. Rav Pappa said: In this regard, his hair is considered like his clothing. And some say: His hair is considered like his body.

Based on the context, the reason for the prohibition against a Torah Scholar going out perfumed in the marketplace, is that people may suspect that his intent is to engage in homosexual acts.  One wonders why Chazal were not concerned that he may be suspected of illicit heterosexual acts?  The next prohibition, going out alone at night, is prohibited due to this very same reason. The perfume, however, is by nature meant to attract others.  One might explain, that for someone about to engage in an exploitative activity, such as to hire a prostitute (and presumably to penetrate her sexually and exploit her vulnerability and need for money), which is what one is suspect of going out alone at night, he need not attract attention to himself.  However, if one wants to be receptive and allow another to penetrate him, he will want to make himself attractive by perfuming himself. 

 

This is by no means a definitive proof, but making oneself receptive to intercourse and allowing oneself to be humiliated in such a way (remember that this is how receptive male/male intercourse was viewed in the contemporary society) would be exactly the type of intercourse forbidden by the Torah.  The type of intercourse one attracts by wandering around the marketplace is not the type of loving, consensual intercourse that we are calling relationship intercourse.  So is it at least possible so far that Chazal understood the prohibition against male/male intercourse to be referring only to humiliative intercourse? Yes, so far it is at least possible. 

Kiddushin 82a

MISHNA: A bachelor may not act as a teacher of children, nor may a woman act as a teacher of children. Rabbi Elazar says: Even one who does not have a wife may not act as a teacher of children. Rabbi Yehuda says: A bachelor may not herd cattle, nor may two bachelors sleep with one covering, lest they transgress the prohibition against homosexual intercourse, but the Rabbis permit it. GEMARA: What is the reason that a bachelor may not teach children? If we say it is due to the children themselves, that it is suspected that he may engage in homosexual intercourse with them, but isn’t it taught in a baraita (Tosefta 5:10): They said to Rabbi Yehuda: Jews are not suspected of engaging in homosexual intercourse nor of engaging in intercourse with an animal. Rather, the reason is as follows: A bachelor may not be a teacher of children due to the mothers of the children, who come to the school from time to time, with whom he might sin. Similarly, a woman may not serve as a teacher to children because she may come to be secluded with the fathers of the children. The mishna teaches that Rabbi Elazar says: Even one who does not have a wife may not act as a teacher of children. A dilemma was raised before the students in the study hall: Does Rabbi Elazar mean one who does not have a wife at all, or perhaps he is referring even to one who has a wife, in a circumstance where she is not residing with him? Come and hear: Even one who has a wife but she is not residing with him may not act as a teacher of children. This statement is in accordance with the opinion of Rabbi Elazar and indicates that his restriction applies even if the man is married.

Here we have several important statements which require analysis.  First there is the discussion regarding two men sleeping with the same blanket. Rabbi Yehuda prohibits it, as he is concerned that they may transgress the sin of homosexual intercourse. The Chachamim are not concerned about this, and they allow it. Is Rabbi Yehuda concerned about humiliative intercourse or relationship intercourse? There is no way to prove either way, but it is certainly plausible that Rabbi Yehuda was concerned that one of the men might take advantage of the other and engage in humiliative penetration. So, it remains at least possible that Chazal only prohibited humiliative intercourse.  

The Chachamim were not concerned about this, why? Perhaps it is because humilative intercourse would require that one man subordinate himself to the other and that this is not so likely? Maybe people are not generally suspected of allowing themselves to be abused (at least in situations where is there is no power differential between the two)?  I don't know for sure, but it remains a possibility. 

The second statement is the prohibition of an unmarried person, or according to Rabbi Eliezer even a married man whose wife is not living with him, from being a teacher of children. By its' very definition, this Chazal is discussing a prohibition of humiliative and exploitative sex between an adult and a child. This is obvious and requires no further discussion.  This is definitely prohibited by the Torah according to any reading of the verses. 

Sukkah 29a

The Sages taught that on account of four matters the sun is eclipsed: On account of a president of the court who dies and is not eulogized appropriately, and the eclipse is a type of eulogy by Heaven; on account of a betrothed young woman who screamed in the city that she was being raped and there was no one to rescue her; on account of homosexuality; and on account of two brothers whose blood was spilled as one.

The context of this Gemara would clearly suggest that the homosexuality for which the world is punished is humiliative and exploitative.  The other examples are the rape of a young girl, murder, and disrespect of the dead.  It would certainly fit the pattern if Chazal were discussing humiliative homosexual intercourse. 

Pesachim 91a

Rav Ukva questioned this answer and said to him: Do we make a group that is entirely composed of women? But didn’t we learn in the mishna: We do not make a group for a Paschal lamb that consists of women, slaves, and minors. What, is the mishna not referring to forming a group that is composed exclusively of women by themselves and slaves by themselves and minors by themselves? Rava said to him: No, the mishna is referring only to forming a group that is composed of women and slaves and minors together, but a group composed exclusively of women, or slaves, or minors would be permitted. It is prohibited to form a group containing both women and slaves, due to a concern that it may lead to frivolity. It is prohibited to form a group of minors and slaves, due to a concern that it may lead to promiscuity, i.e., homosexual behavior. 

For starters, slaves (with the obvious exception of children), are the group that in these ancient societies were the most vulnerable to being the recipients of humiliative sexual penetration.  Furthermore, including them in groups specifically with children would put the children at risk in a very vulnerable environment.  This clearly fits the pattern of humiliative intercourse, and thus would support the idea that Chazal considered the prohibition to be that of humiliative intercourse. 

Chulin 92b

Ulla says: These are the thirty mitzvot that the descendants of Noah initially accepted upon themselves; but they fulfill only three of them. One of these three mitzvot is that they do not write a marriage contract for a wedding between two males; although they violate the prohibition against engaging in homosexuality, they are not so brazen as to write a marriage contract as for a regular marriage.

This Gemara is consistent with the Sifra that we quoted in our previous post here.  I will discuss this Gemara in a later post when I discuss the prohibition against marriage between males.  We will get there, but please forgive me for postponing that discussion.

Sanhedrin 54a

On this page there are two discussions that are relevant.  The first is the discussion regarding one who has penetrative intercourse with his father or uncle. There is much discussion back and forth about this in the beginning of this page of Talmud, and since the details are not relevant for this discussion, I refer you to the Talmud for the specific quotes.  What is important for our discussion is the assumption that one who sexually penetrates his male family member violates both the prohibitions of incest AND that of homosexuality.  In all relationships involving incest, modern scholarship has taught us that there is always an exploitation of trust and abuse involved.  While typically the father or uncle is the perpetrator and not the recipient, one can imagine situations in which the son or nephew would be in the position to exploit the older generation.  This certainly is an example of Chazal discussing humiliative intercourse as the type of intercourse prohibited by the Torah. 

The second discussion on this page, is the mishna we quoted in our previous post here.  This Mishna lists together penetrative intercourse with a male human being and with an animal. The context would suggest that we are discussing humiliative and abusive intercourse, similar to that which occurs with an animal who has no ability to choose for herself and is abused by her master.  While obviously this list could simply be listing these two together as they have the same punishment, clearly there is no indication from this Chazal that understood the verse in Leviticus to be referring to relationship intercourse.  If anything, it suggests the opposite. 

Sanhedrin 55a

Rav Aḥadevoi bar Ami asked Rav Sheshet: With regard to one who performs the initial stage of homosexual intercourse on himself, what is the halakha? Is he liable for homosexual intercourse? Rav Sheshet said to him: You disgust me with your question; such an act is not possible.Rav Ashi said: What is your dilemma? With regard to doing so with an erect penis, you cannot find such a case. You can find it only when one performs this act of intercourse with a flaccid penis. And the halakha is subject to a dispute: According to the one who says that a man who engages in intercourse with a flaccid penis, with one of those with whom relations are forbidden, is exempt, as that is not considered intercourse, here too, when one does so to himself, he is exempt. And according to the one who says that he is liable, he is rendered liable here for transgressing two prohibitions according to Rabbi Yishmael; he is rendered liable for engaging in homosexual intercourse actively, and he is rendered liable for engaging in homosexual intercourse passively.

This passage is probably the most difficult one so far to explain according to Rabbi Greenberg's hypothesis.  If indeed Chazal truly understood that the only homosexual intercourse prohibited by the Torah is humiliative, then why prohibit "intercourse" with oneself?  One interesting thing to note about this very strange passage, is that there is no pleasure involved in this act, as the Gemara states that the penis is not erect when this is being done. If this was just a strange form of masturbation, then maybe it would not be prohibited at all by the Torah. So why prohibit this? The answer to this question may lead us to the explanation we are seeking.  Perhaps this is being performed for others in some perverse pornographic presentation? If so, would it not be possible that the person he is humiliating is himself?  If so, then this passage also would not contradict the possibility that Chazal as well understood that the intercourse prohibited by Leviticus is only humiliative intercourse.  

Sanhedrin 73a

MISHNA: And these are the ones who are saved from transgressing even at the cost of their lives; that is to say, these people may be killed so that they do not perform a transgression: One who pursues another to kill him, or pursues a male to sodomize him, or pursues a betrothed young woman to rape her. But with regard to one who pursues an animal to sodomize it, or one who seeks to desecrate Shabbat, or one who is going to engage in idol worship, they are not saved at the cost of their lives.

This mishna clearly is referring to abusive and humiliative penetrative intercourse, by its very definition. Again, their isn't much to discuss here, as one man is chasing another to harm him.  The Mishna openly compares this to rape of a woman and even murder.  

Sanhedrin 58a

“And shall cleave to his wife,” but not to a male; such a relationship is not defined as cleaving. “To his wife,” but not to the wife of another man. “And they shall be one flesh” indicates that he should marry one of those with whom he can become one flesh, i.e., they can bear children together. This excludes domesticated and undomesticated animals, with which one is prohibited from engaging in bestiality, as they do not become one flesh. All these are forbidden to the descendants of Noah.

Here Chazal seem to be suggesting that the mitzvah to marry applies only to (marrying) a woman, and not to a man.  In the context of this statement, it is not referring to the prohibition of adultery or bestiality per se, but it is saying that a relationship of "cleaving" does not happen between men, or between humans and animals, or with another's wife.  In other words, this statement of Chazal is an observation regarding reality.  A meaningful relationship can only occur between a man, and his own wife.   The contradiction here is then one between our modern observation, which is that some men sometimes do "cleave" to one another and form a bond and relationship.  This would go under the category often discussed in Rationalist Judaic circles.  What does one do when a statement of Chazal is contradicted by modern science or by modern experience?  I do not want to go down that "rabbit hole" right now. 

However, if one compares it to the context, the other relationships listed are prohibited relationships.  Does this prove that Chazal viewed all homosexual penetrative intercourse as prohibited by the verses in Leviticus including what we are calling relationship intercourse?  Not really.  Firstly, this verse is not discussing a prohibition, which we mentioned above.  Secondly, this Aggadic observation of Chazal that two men cannot "cleave" to one another and develop a bond may not be true, it may simply be what they believed to be true at the time.  If you are of the school that believes that what I just said is blasphemous (because whatever Chazal stated is 100% true), then I would still argue that a psychological observation about who develops relationships does not necessarily create a Torah prohibition. 

One could argue that Chazal certainly knew of loving and intimate relationships between two men (think of David and Jonathan). However, they still would have illustrated their example of “cleaving” to one another by saying that this is the type of bond that exists between a man and his wife, and not between two men. Rabbi Greenberg’s entire argument depends on the idea that at the time of Chazal, when one mentioned a homosexual relationship between men, the image conjured in the minds of Chazal was that of a humiliative relationship, and not a loving and committed relationship between equals. 

Sanhedrin 82a

Rav then remembered that which he learned through tradition and said: “Judah has dealt treacherously,” this is a reference to the sin of idol worship. And likewise it says: But as a wife who treacherously departs her husband, you have dealt treacherously with Me, house of Israel, says the Lord (Jeremiah 3:20). “And an abomination is committed in Israel and in Jerusalem,” this is a reference to male homosexual intercourse, and likewise it says: “You shall not lie with a man as one lies with a woman; it is an abomination”

The context here, again, is one of rebelliousness and violence.  It continues with a criticism of prostitution, which also fits into the category of abusive crimes.  This is certainly consistent with humiliative homosexual intercourse. 

Yevamot 53b

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.  

We quoted this gemara in an earlier post because the Gemara is clearly defining the prohibited act as one of penetrative intercourse between males.  However, this passage does not indicate to us whether Chazal are discussing humiliative or relationship intercourse.  It could easily be referring to either type. 

Nedarim 51a

Bar Kappara said to Rabbi Yehuda HaNasi at the wedding: What is the meaning of the word to’eva, abomination, used by the Torah to describe homosexual intercourse (see Leviticus 18:22)? Whatever it was that Rabbi Yehuda HaNasi said to bar Kappara in explanation, claiming that this is the meaning of to’eva, bar Kappara refuted it by proving otherwise. Rabbi Yehuda HaNasi said to him: You explain it. Bar Kappara said to him: Let your wife come and pour me a goblet of wine. She came and poured him wine. Bar Kappara then said to Rabbi Yehuda HaNasi: Arise and dance for me, so that I will tell you the meaning of the word: This is what the Merciful One is saying in the Torah in the word to’eva: You are straying after it [to’e ata bah], i.e., after an atypical mate

This sugya is interesting on many levels.  The quotation above is from the translation available on Sefaria.org (as are most of my quotations unless I specifically say otherwise).  On Sefaria, the bold letters are the translation, and the regular letters are filled in to allow the reader to make sense of what he is reading.  The assumption that the word To'eva in the interchange recorded is referring to the word as it is used to describe homosexual intercourse is consistent with the standard commentaries.  But this is by no means necessary.  In fact, it may well be that it is referring to other uses of the same word (such as Devarim 27:15 where it refers to idol worship).  It is quite likely that the Gemara is referring to the widespread use of the word in Tanakh.  If so, Bar Kappara is simply teaching us that the root of the word To'eva, is the Hebrew word to'eh, which means to go astray or to wander.  Thus, the teaching would be that anything that leads one astray or is a fundamental behavior or idea opposed to God's true will as expressed in the Torah is a To'eva.  This would be entirely consistent with the idea that humiliative intercourse is a To'eva. 

Kereitot 3a

The Gemara suggests: And if you would say the entire mishna is in fact in accordance with the opinion of Rabbi Akiva, and with regard to the halakha listed in the first clause he holds in accordance with the opinion of Rabbi Yishmael, that is not tenable, as doesn’t Rabbi Abbahu say: In the case of a male who engages in intercourse with another male, and a male who brings another male upon him to engage in intercourse, according to the statement of Rabbi Yishmael, who derives these prohibitions from two separate verses, from: “And you shall not lie with a man as with a woman” (Leviticus 18:22), and from: “There shall not be a sodomite of the sons of Israel” (Deuteronomy 23:18), which is referring to one who engages in homosexual intercourse passively, one who transgresses both of these prohibitions in a single lapse of awareness is liable to bring two sin offerings

The Sefaria translation translates the Hebrew word "kadesh" as a sodomite.  This is not the best translation.  Most commentators understand a "Kadesh" to be a man who sets himself aside as a receptive male prostitute.  This would be one who humiliates himself by being available for men to penetrate, either for money, or for some cultic practice. This gemara is very consistent with the idea that when the Talmud discusses "mishkav zachar", it is referring to humiliative intercourse. 

I think I have covered the entire Talmud Bavli.  If I left something out please let me know in the comments.

What I have established in this post is this: IF one would assume that Rabbi Greenberg's reading of the verses in Leviticus are correct, and IF one therefore assumes that the Torah differentiates between two categories of male/male intercourse (one forbidden and one permitted), then we have no proof so far from CHAZAL that they understood it any differently.  Chazal could theoretically be interpreted to have understood the verses this way, in concert with the environment within which they lived.  I completely and totally understand that this is not what the poskim understood or thought when they learned those Sugyot in the Gemara.  I absolutely understand that the rishonim and Acharonim did not understand Chazal this way.  However, we cannot say at this point that Rabbi Greenberg's interpretation is against Chazal's. What we can say is that he and those who write similar ideas are interpreting both Chazal and Leviticus very differently from how Poskim throughout the centuries have. But this is no surprise, as they readily would admit this. 

I have deliberately left the discussion of the meaning of Chazal's negative statements regarding marriages between members of the same gender for a later post.  We will get there. 

There are many more halachic issues we identified with male/male intercourse in our previous post.  We must analyze these prohibitions as well.  Lo Tikrevu, Hotza'at zera and some major Halachic disagreements among the Rishonim must be discussed.  For example, is it possible to have an act which can be prohibited or permited based on context alone, while on the surface the act itself is the same? Even if it is possible to claim that Chazal also understood the prohibition of mishkav zachar to be a prohibition against humiliative sex, is it legitimate to negate virtually the entire corpus of post-Talmudic Halachic literature?  Does a situation of great need allow us to do something like that?   

Another area that needs to be mentioned is the oft-quoted claim that, when the need was great, the Rabbis have so frequently found ways to "permit" things that by the Torah should have been prohibited.  These claims often arise when discussing this topic as well. The examples invariably include the use of the "pruzbul" to allow for collecting on debt after the sabbatical year ("shemita"), the use of a "heter iska" to allow for borrowing and lending money with interest, selling chametz for pesach and other cases.  

However, the difference between our case and these other cases should be obvious.  In all of those cases (each one has its own halachic history and rationale) no one ever disputed the plain meaning of the commandement in the Torah.  The meaning of the verses remained as they were understood by Chazal.  Those "loopholes" were created to deal with an extenuating need not by changing our understanding of the Torah, but by finding some legalistic trick to get around the law.  If one wanted to oppose such a law, he/she would state that the rabbinic trick was violating the purpose and intent of the Torah.  That would be a legitimate point to which the rabbis would respond that there was an extenuating circumstance.

Our case is very different though, in that Rabbi Greenberg is claiming that the Torah law itself has been misinterpreted for millenia.  I am suggesting here that if Rabbi Greenberg is claiming that Chazal themselves misinterpreted the verses, than this idea cannot be considered within Orthodox Halachic tradition.  On the other hand, if he is claiming that Chazal also understood it this way, then we can continue the discussion and try to clarify a long list of other issues to see if there is any viability to this suggestion.

I also anticipate that I may have missed some statements in the Bavli that my readers will bring to my attention.  So we still have a very long way to go ... I may dig up some more statements in the Yerushalmi or other Beraitot (Rabbinic statements not in the Mishna) that will need to be explained.  Please feel free to email, or preferably, comment in the comment section if you find any statements that are relevant and I missed.