Wednesday, January 10, 2007

Homosexuality in halacha IV: The Biblical Prohibition

By now, I hope that I've shown that the Biblical prohibition in a halachic sense is not defined by the Biblical text itself. Now, I would like to examine the early rabbinic (primarily Talmudic) texts used by Dorff et al (2006), and Roth's responses (2006), interspersed with my own analysis.

Most of the discussion of Talmudic sources in Roth's 1992 teshuva focused on whether the rabbis of the Talmud could envision (and thus could have knowingly prohibited) the modern, monogamous, loving homosexual relationship. These sources, while they have halachic import, do more to establish social context than to determine the nature of the Biblical prohibition as a technical issue.

Dorff et al acknowledge that some form of homosexual behavior is not only Biblically prohibited, but is in the category of גילוי עריות (gilui arayot, illicit “uncoverings of nakedness”). Transgressing these prohibitions is considered so serious that one is halachically expected to die instead of submitting to a forced transgression of them.

Our analysis could begin in many places, but, perhaps the most appropriate is at BT Sanhedrin 55a:

א"ל רבינא לרבא: המערה בזכור מהו? המערה בזכור "משכבי אשה" כתיב ביה!

Ravina asked Rava: What are the illicit sexual relations concerning a man [and another man]? [Rava answered:] About that it is written: "The lyings of a woman!"



So, the Talmud defines the Biblically forbidden homosexual relations as whatever is legally included in the two verses in Leviticus. Based on their halachic analysis, Dorff et al interpret that to mean “anal intercourse”, and based on analysis of many of the same sources, Roth interprets it to mean all penetrative contact between men. In its discussion of the verses in question, the Talmud addresses three key points. The first is that the term “lyings of a woman” is not clear. The second is that it is written in plural. The third is that it is in a Biblical context dealing with other manners of forbidden sexual relations, such as between male and female relatives, between people and animals, and between men and menstruant women.

The plural “lyings of a woman” is addressed with the same Talmudic statement in three places, BT Sanhedrin 54a, BT Yevamot 56b, and Sifra Kedoshim 9:14 (92b):

“משכבי אשה” מגיד לך הכתוב ששני משכבות באשה. הרי זה בא ללמד ונמצא למד.

“The lyings of a woman” comes to teach us that there are two lyings with a woman. This passage comes to teach one thing, and it also teaches about another.


Rashi defines the two “lyings” as follows (emphasis added):

משכבי אשה - שתי משכבות יש באשה, שוין זה לזה לחייב בכל עריות, כדרכה ושלא כדרכה. הרי זה בא ללמד - על זכר, שחייב אפילו שלא כדרכה. ונמצא למד - למשכב זכור לא איצטריך קרא, דפשיטא לן דכל משכב זכר שלא כדרכו הוא, אלא האי משכבי לאשמועינן אתא דהבא על אשה, בין כדרכה, בין שלא כדרכה חייב.

“‘there are two lyings with a woman’ . . . that are equivalent to each other for legal liability with regards to all illicit sexual relations; the usual way [vaginal intercourse] and the unusual way. ‘This passage comes to teach one thing.’ That a man is liable [for illicit relations] even though they are done the unusual way. ‘and it also teaches us about another.’ For the purposes of homosexual relations, we don't need a Biblical verse, because clearly all relations between men are not performed the usual way. Instead, the verse comes to teach us that a man who has illicit sexual relations with a woman is liable, whether those relations were the usual way or the unusual way.”


The primary dispute here is the definition of “the unusual way.” Dorff et al argue that it means anal sex specifically, while Roth argues that it includes all nonvaginal penetrative intercourse. As a side note, this last Rashi undermines Dorff et al's note 29, where they write: “We are not aware of any rabbinic text which employs the term biah shelo kedarkah to describe homosexual sex.”

That sex the “unusual way” is sufficient to incur Biblical liability is made somewhat clearer from an unrelated discussion in Horayot 4a (brought up by Roth but not addressed in Dorff). The case the Talmud is discussing involves a sanhedrin (court) that makes an incorrect ruling. Ordinarily, this would make the court liable for having to bring a sacrifice, but anyone who followed the incorrect ruling would not be liable. The exception (mishna, Horayot 3b) is when the court annuls an entire Biblical law, for example, it removes the niddah prohibitions, the Sabbath, or the prohibitions against praying to foreign gods from the Torah in their entirety. In that case, the court is not liable to bring the sacrifice, and anyone who followed the ruling is liable for violating the “overturned” prohibition. The reasoning is that it should have been obvious (even to a Biblical literalist, such as a Sadducee) that the ruling was wrong, because it so obviously overreached the authority of the court.* The mishna also presents a borderline case, in which the court annuls only a specific portion of a Biblical law. For example, it states that the niddah prohibitions are in force, but that a woman may consider herself pure (and thus have sexual relations with her husband) while she counts the days until her time of immersion; or that the Shabbat laws are in full force, except one may carry between a private domain and a public domain; or that the prohibitions against foreign worship are in full force, but one who merely bows before other gods is not liable. In these cases, when the court finds that it ruled incorrectly, it is liable for a sacrifice. When the Talmud discusses the first of these cases, it touches on issues relevant to our discussion. The Talmud is in the process of suggesting and rejecting what the court could have said in this case that was wrong, but not “obviously” Biblically prohibited. One of the suggestions is:

דאמרי: כדרכה אסירא, שלא כדרכה שריא, הא כתיב: "משכבי אשה."

[If] they say: the usual way is OK, the unusual way is forbidden, [they are answered: ] It is written: “the lyings of a woman”.


The conclusion is that it should be obvious that the phrase “the lyings of a woman” implies that both types of intercourse, the “usual” and “unusual” ways are Biblically forbidden.

The connection to the Biblical context is made in BT Yevamot 54b:

אמר ר' יונה, ואיתימא רב הונא בריה דרב יהושע: אמר קרא: "כי כל אשר יעשה מכל התועבות האלה ונכרתו הנפשות העושות" הוקשו כל העריות כולן לנדה. מה נדה בהעראה, אף כל בהעראה.

Rav Jonah said, and there are some who attribute it to Rav Huna son of Rav Joshua: The verse says: "All who do any of these abhorrences will have their souls cut off [from among their nation]" (Lev 18:29). All of the illicit sexual acts [listed in Leviticus 18] were connected to niddah. Just as for niddah, initiation of sexual contact [is sufficient for liability], so in all of them, initiation of sexual contact [is sufficient for liability].



The Talmud Yerushalmi, Kiddushin 1,1 (2a), is even more specific:

ר' יוסי בעא: הערייה בזכור מהו? הערייה בבהמה מה היא? וכל העריות לא מן הנידה למדו? זכור מינה, בהמה מינה.

R. Jose asked: What is the forbidden initiation of sexual contact between a man and another man? What is the forbidden initiation of sexual contact between a man and an animal? [He was answered:] Have we not learned about the forbidden sexual relations from the case of the menstruant woman? We learn the case of a man from there, and we learn the case of an animal from there.


This passage defines the Biblical injunction against the “lyings of a woman” with a man as the equivalent of what is forbidden with a menstruant woman. As far as I can tell, this source is not addressed in Dorff et al.

So, now, we know that העראה (I've been translating it as “initiation of sexual contact”) of ביאה שלא כדרכה (“sex the unusual way”) is sufficient to incur a Biblical penalty**. Both of these remain undefined terms.

The Talmud defines העראה (initiation) in a discussion in Yevamot 55b as “הכנסת עטרה”, the entry of the crown of the penis. Both Roth (pp8-9) and Dorff (note 25) agree on this point. Their primary disagreement is into which orifice(s) the penis must be inserted in order to incur a Biblical penalty.

One Talmudic case considered strong proof by Dorff et al that “the unusual way” only refers to anal intercourse is that of the androginus, a human with two sets of genitalia. (Simplifying, ) The halachic definition of a male is one with a penis, so, the androginus is male according to halacha, and, thus can be liable for relations with another man. From BT Yevamot 83b:

אמר רב שמואל בר יהודה א"ר אבא אחוה דר' יהודה בר זבדי אמר רב יהודה אמר רב: אנדרוגינוס חייבין עליו סקילה משתי מקומות. מיתיבי: רבי אליעזר אמר אנדרוגינוס חייבין עליו סקילה כבזכר. בד"א בזכרות שלו, אבל בנקבות שלו, פטור. הוא דאמר כי האי תנא דתניא רבי סימאי אומר: אנדרוגינוס חייבין עליו סקילה משתי מקומות. מ"ט דרבי סימאי? אמר רבא בר המדורי: אסברא לי "ואת זכר לא תשכב משכבי אשה." אי זהו זכר שיש בו שני משכבות? הוי אומר: זה אנדרוגינוס. ורבנן אע"ג דאית ביה שני משכבות "את זכר" כתיב. ורבנן זכר גרידא מנא להו? מ"ואת אשה." באשה שלא כדרכה מנא להו? מ"אשה."

Rav Samuel son of Judah said in the name of Rabbi Aba brother of Rabbi Judah son of Zveidi who said in the name of Rabbi Judah who said in the name of Rav: An androginus is liable for [the Biblical penalty of] stoning [for homosexual relations] from two places. They asked of him [from the mishna]: “Rabbi Eliezer said: An androginus is liable for stoning as a man” — “As a man” means to say “with his maleness” (בזכרות שלו), but in his femaleness (בנקבות שלו), he is not liable!? This tannaitic ruling agrees with another [Beraita]: “Rabbi Simai said: An androginus is liable for stoning from two places.” Why does Rabbi Simai rule this way? Rava son of Hamduri said: Explain to me [the verse, Lev 18:22] “Do not lie with a man the lyings of a woman”. What man has two “lyings”? This is the androginus! The opinion of the [other] rabbis is that even though he has two “lyings”, it is written “And a man” [that is, he is only liable for sex with male parts (Rashi)]. [But] according to the opinion of the rabbis [where the word “a man” is being used to remove the liability from the female part of the androginus], from where do we derive the law [against homosexual relations] in relation to a normal male? From “and to a woman”***. [According to both Rabbi Simai and the other rabbis, ] from where do we derive the law in relation to [illicit sexual relations between a man and woman] that the unusual way [is sufficient to incur a Biblical penalty? (We had thought that it was from the plural form of “lyings”, but this is already being used for different legal derivations -- Rashi)] From “a woman” (most likely referring to Lev. 18:22).


The ultimate ruling with regard to the androginus is unimportant for our purposes. Dorff et al would like “two places” to mean “two and only two”. There are a number of linguistic problems with the interpretation of this passage. One is pointed out by Roth (p12). “Femaleness” is universally equated with a vagina. The question then is the meaning of “maleness” in this context. Dorff et al equate it with an anus, following the Ritv"a (Rabbeinu Yom Tov ben Avraham Asevilli, 1255-1300; Dorff, note 31), who explicitly defines “maleness” as the “behind”. Roth prefers the term I translated as “maleness” to be understood according to its more frequent usage — “penis.” What Dorff's definition loses in linguistic fidelity, it gains in textual symmetry: the text refers to the two places an androginus can be penetrated and thus incur a penalty. The textual symmetry in Roth's definition is that both “maleness” and “femaleness” refer to genitalia. Either way, at least one “place” that is known to that author to result in a Biblical penalty is missing. For Dorff, it's the penis. For Roth, it's the anus (or the mouth, for that matter!). Both would argue based on their own versions of the textual parallelism that it is not expected to be there. This passage is therefore inconclusive.****

Colloquially, “sex the unusual way” likely means any nonvaginal sex. Roth suggests that it means any nonvaginal penetration (for reasons discussed below). However, from the Talmudic sources alone, there is little evidence of its legal definition. It could be specifically anal, or it could be more general. In some places, it could have one meaning, and in others, it could be a specific euphemism. Other sources are introduced by both Roth and Dorff. But, they are similarly inconclusive.

There is later evidence as to the possible meanings of “sex the unnatural way”. Dorff et al suggest that the Rashi on the language used in the rape of Dinah (Gen 34:2) proves that “the unusual way” is painful, and therefore, it must refer to anal sex. Rashi derives this from the midrash Bereshit Rabba chapter 5. Once again, however, this is not absolute proof, since there is no evidence that the term has only one meaning. In that case, Rashi had one of many specific meanings of the “unusual way” in mind when he wrote the commentary on Genesis.

The closest we come to an actual definition is Rashi on Yevamot 34b:

שלא כדרכה והעראה משכבת זרע נפקא - שלא כדרכה אינו מקום זרע העראה לאו שכבת זרע הוא דאין כאן זרע הלכך תרוייהו משכבת זרע מימעטי:

The unusual way and initiation are differentiated [legally] from [the Biblical category of] “intercourse involving seed” - The unusual way [means] ‘not in a place with procreative potential’, and initiation of sexual contact is not [considered intercourse involving seed] because there is no ejaculation. Both are eliminated [from incurring legal liability] wherever [the Torah says] “intercourse involving seed”.


This would seem to support Roth's more general understanding of sex “the unusual way”.

Another cited proof text is the Rashi on Niddah 13b that defines another term, sex דרך אברים, “by way of the limbs”, which the Talmud explicity excludes from the category of “lyings of a woman”. Rashi defines:

דרך אברים - היינו שכבת זרע לבטלה, ואינו משכב זכור דבמשכב זכור כתיב: "משכבי אשה".

[Sex] by way of the limbs -- This [is a sexual act that] wastes seed, but it is not considered [the legal equivalent of] “lying with a man” because all of the cases for “lying with a man” must be included in “the lyings of a woman” (Lev 18:22).


Roth's interpretation is that “by way of the limbs” refers to nonpenetrative sex acts, and “the unnatural way” refers to penetrative sex acts. Dorff et al include only anal sex in “the unnatural way”, and the remainder in “by way of the limbs”.

The earliest quoted primary source of an absolutely clear broad legal definition is in an edition of the Shulchan Aruch published in Venice in 1594 (Roth p10). The Ram"a on Even Haezer 25:2 which reads: “And has intercourse with her the usual way or the unusual way, but not by way of the anus, God forbid”. The proof text itself (italicized), which clearly includes non-anal intercourse in “sex the unusual way” is not in our editions of the Ram"a. I don't know whether the Venice 1594 edition is a more or less reliable one than the one we have.

The later commentators and halachists include ever broader definitions of the Biblical prohibition (see Mainmonides, the Shulchan Aruch, Tur, etc. quoted by Roth p13), deriving the prohibition against intercourse from “the lyings of a woman”, and the prohibition against all other sexual activity from Lev. 18:3.

To this point, all that we've determined is that the early sources can be read such that anal intercourse is the only Biblical prohibition. It is a plausible reading, but, truthfully, not that conclusive nor convincing. Roth's understanding is most consistent with the greatest number of halachic texts, including the Talmud and post-Talmudic codes. To this point, the differentiation is all just an academic exercise. Even if the remainder is not Biblically prohibited, it is certainly Rabbinically prohibited. A future post will (hopefully) look at the logic used by Dorff et al to overturn the remaining prohibitions.

Roth provides a number of philosophical objections to defining the Biblical prohibition narrowly. The first, from a halachic perspective, is the principle ספיקא דאורייתא לחומרא, that when there is an uncertainty with regard to application of a Biblical law, we rule stringently. The counterargument would be that this is a cop-out. The uncertainty here is not (yet) in application, it is in whether the law is actually Biblical. To the best of my knowledge, this principle is a guideline for deciding practical applications, not for categorizing. The second objection is essentially a slippery-slope argument. Roth argues that should we decide to limit the Biblical prohibition against homosexuality, there is no reason not to do the same for all the other sexual prohibitions in Lev. 18. However, deciding on the nature of the Biblical prohibition does no such thing automatically. Rabbinic prohibitions still prevent one from making any forms of bestiality or incest halachically legitimate. The ultimate question is whether there is any compelling reason to reconsider the Rabbinic prohibitions. Dorff et al are not suggesting that Rabbinic halacha is nonbinding. On the contrary, much of their case relies on Rabbinic jurisprudence. Roth's third objection is more sociological. He argues there is a difference between what a decisor would say to someone privately and what should be enshrined in law for all to read. But, the fact that this issue has come up as a societal issue rather than as a private issue demands a societal answer.

* A cynic would snicker at the parallels to the issue currently under discussion.

** I want to make absolutely clear here that when a halachist talks about a liability for a Biblical or Rabbinic penalty, it is not equivalent to a statement that the halachist thinks that someone should actually go out and punish another according to that penalty. Penalties are being used to make legal distinctions. Nothing more.

*** The text here is severely corrupted and it's a bit hard to tell which proof-verse is intended.

**** I should point out that even though the language is inconclusive, if you're willing to accept Dorff et al's perfectly reasonable understanding at face value, this passage is pretty much the only one presented that would strongly indicate that the sole definition of “sex the unusual way” is anal sex. (Updated: 1/12/2007)

Many thanks to DW for helping me proofread and copy-edit.

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Comments:
Excellent summary. A few points:

Regarding the sugya on Sanhedrin 55a, your translation and interpretation is a bit off. It should be:

Ravina said to Rava: "One who does me'areh with a man, what is the law?"
[The gemara interpolates:] One who does me'areh with a man?! [I.e., how can you ask such a stupid question?!] "Mishkavei ishah" is written regarding it [i.e., me'areh]!

That is, Rava is not given a chance to respond, because the stam elects to change Ravina's question. (Rava's response is hard to parse, since it's written in stammaitic language and would require a fuller analysis to see if there's a kernel of a response to the original question.)

"To the best of my knowledge, this principle is a guideline for deciding practical applications, not for categorizing."

I'm fairly certain rishonim use it in both contexts, but I need to look more carefully.

"Rabbinic prohibitions still prevent one from making any forms of bestiality or incest halachically legitimate."

But for the halakhically-minded person, rabbinic prohibitions are much easier to circumvent or rationalize away. One of the ingenious suggestions I heard (from a teacher whom I deeply respect) to resolve the whole issur de-oraita was to treat condom sex as non-sex. When I pointed out that adultery with a condom would then become OK, the response was: "Hmm, good point." What's to stop someone in a sexless marriage who heretofore has avoided having an affair at least in part because of the issur de-oraita [i.e., highly significant cultural taboo] from now saying: "Well, I guess it's just derabbanan [i.e., less significant taboo] anyway!" (Which is what many unmarried couples who plan to observe hilkhot niddah do -- avoid the deoraitas [biah ke-darkah ve-shelo-ke-darkah and just do the derabbanans [biah derekh eivarim, defined Dorff's way].)

"[T]he fact that this issue has come up as a societal issue rather than as a private issue demands a societal answer."

Indeed, and I belive Roth's societal answer is "it's all assur, if you've got an extenuating circumstance let's go talk in my office." That's the approach the compassionate Orthodox rabbis I know take (assuming they can trust the people they're giving heterim to not to spread their names around).
 
Thanks for your comment.

Regarding the sugya on Sanhedrin 55a, your translation and interpretation is a bit off.

I think the Soncino agrees with me. Your interpretation is reasonable too (although I tried to avoid using untranslated words in the English as much as possible). Either way, it doesn't matter. The same point is made.

But for the halakhically-minded person, rabbinic prohibitions are much easier to circumvent or rationalize away

But it would require someone to do it. There's no compelling reason.

What's to stop someone in a sexless marriage who heretofore has avoided having an affair at least in part because of the issur de-oraita

If it were a man who wanted to have an affair with an unmarried woman, it's rabbinic already, without any changes to legal interpretation. If the nature of the law as Biblical or Rabbinic is all that's preventing someone from having an affair, they have far worse problems than anything that can be solved by this legal nitpicking.

That's the approach the compassionate Orthodox rabbis I know take (assuming they can trust the people they're giving heterim to not to spread their names around)

The problem with this approach is that you then either have a congregant using his individual heter in the closet, or the whole community talking about how the congregant is violating halacha in public, not knowing about the heter. As the homosexuality issue is phrased now (in terms of commitment), it's a societal problem, not a problem that can be solved on an individual level.
 
As a side note, this last Rashi undermines Dorff et al's note 29, where they write: “We are not aware of any rabbinic text which employs the term biah shelo kedarkah to describe homosexual sex.”

what does that tell you about their ability to make halachik judgements? If these papers were "peer reviewed" in "scientific journals" would they be accepted or would the reviewers bat it down?

At the end of the day, one doesn't come away with a huge amount of respect for their knowledge.
 
If these papers were "peer reviewed" in "scientific journals" would they be accepted or would the reviewers bat it down?

You can still see part of the "peer review" process in effect if you read the final version of Roth's 2006 teshuva. Roth left some of his proofreading of other people's draft work in his final version, even though the others' final versions had the errors (mostly typos, although some were actual errors in translation, not differences in understanding) corrected.

I was more interested in evaluating the argument than the people. For obvious reasons, both sides present their arguments as if they're coming to trivial conclusions. My point is that neither conclusion is trivial, both are plausible, and one is more consistent.

A major difference in argumentation is that, Roth's burden of proof for his own work is that it merely be plausible, but for all others, the proof has to be beyond a reasonable doubt. From a halachic standpoint, that makes some sense - the one who has to prove his case more strongly is the one who wants to change the status quo.

I'm a bit confused about the burden of proof set by Dorff et al for themselves. Is it a plausible argument from the early sources? From p12: Yet at the conclusion of this section we must acknowledge that the established halakhah presents a comprehensive ban upon homosexual intimacy.
 
I was more interested in evaluating the argument than the people.

But in halacha isn't relatively important to evaluate the people who are making these decisions, especially if one views it as a highly human process.

That would be the problem I have from an orthodox perspective, I can respect the knowledge of some people, but if I feel their knowledge is missing real world experience, I am left wondering how their decisions effect me. In this case, their pronouncements (we know of no place...) leave one without even that respect for their knowledge.
 
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