Conservative Teshuvot on Mikveh: The Language Issue

For Shabbat Tazria-Metzorah, I spoke about the teshuvot on mikveh recently released by the CJLS. These were not very well publicized, mainly, I imagine, because they were overshadowed by the teshuvot on homosexuality.* I intended to blog about the mikveh teshuvot once I finished blogging about the ones on homosexuality, but I don't seem to be making much progress with the latter, so I may as well address the mikveh teshuvot now. Like my d'var torah, however, this post will focus on the issue of terminology rather than the technical halakhic aspects of the teshuvot, which I'm still working through.

Okay. A few preliminary points:

1. The biblical concept of tum'ah (usually translated "impurity" or "defilement") is unambiguously negative. The clearest evidence of this is its frequent use as a metaphor for sin. This does not mean, of course, that contracting impurity is inherently sinful; impurity is caused by all sorts of unavoidable things, such as illness, sexual intercourse, and handling a corpse (someone's gotta do it). An analogy that I like to use is illness: Being sick doesn't reflect negatively the person who suffers from the illness, but we do recognize the condition as negative, and we therefore often use illness as a metaphor for morally negative traits ("that man is sick").


2. In biblical law, menstrual impurity (niddah) is no more severe than forms of impurity that affect men (ejaculation, penile discharge) or men as well as women (scale disease, contact with a human corpse, etc.).


3. Since the major consequence of impurity is that it bars one from contact with the sancta, rabbinic law as it ultimately developed regards most purity regulations as irrelevant for practical purposes now that the Temple is no longer standing. Niddah is an exception for a purely technical reason: Leviticus 18:19 prohibits sex with a woman in a state of menstrual defilement (tum'at niddah). This, according to rabbinic reasoning, necessitates that a menstruating woman refrain from sex with her husband for a fixed duration of time (see below) and then immerse in a mikveh.


4. Over time, the laws of niddah became increasingly stringent. Perhaps the most significant stringency was the conflation of the categories of niddah and zavah, with the result that couples had to wait seven days from the cessation of menstruation rather than from the onset of menstruation before resuming intimacy. This approximately doubled the length of the period of separation to about half of every month (for those who struggle with arithmetic). This is the halakhah as it is observed in contemporary Orthodox communities (at least in theory).

Now, a summary of the teshuvot:

Rabbi Miriam Grossman, following an argument advanced by Rabbi Joel Roth, rules that niddah be observed for seven days beginning at the onset of menstruation (or until bleeding ceases), in keeping with the original Torah law. She also differs from traditional Orthodox opinion in permitting non-sexual physical contact between husband and wife during niddah, eliminating the requirement of internal self-exams (bedikot), and accepting certain other leniencies. The purpose of these leniencies is to make the laws easier for more Jews to observe and to avoid putting strain on relationships. Grossman also advocates mikveh use outside marriage, particularly by women who are sexually active (in keeping with the Conservative movement's current position on premarital sex: "We don't approve, but we know you'll do it anyway").

At least as important for Grossman as these practical halakhic matters is the terminology used to refer them. She rejects "purity" language (that is, the terminology I've used throughout this post) in favor of the language of "holiness." Mikveh use, in her opinion, should be viewed as a means of sanctifying the body and sexual relationships rather than as a means of determining a woman's ritual status. In a 1992 article in Conservative Judaism Magazine entitlted "Feminism, Midrash, and Mikvah," she wrote:

one cannot talk about purity (taharah). . . without calling to mind -- if only subconsciously-- the fact that it is a relative state in contradistiction to impurity (tum'ah)... [S]uch an association has a negative impact for women. (Similarly, we would not want to use the term Niddah laws, as niddah can also be defined as "defiled.")

In the article, Rabbi Grossman proposed using the phrase kedushat mishpachah, "family sanctity." In her teshuvah, she proposes substituting kedushat yetzirah, "the sanctity of God's creation," to shift the emphasis away from the marital relationship and toward a woman's own relationship with her body. (Personally, I think it's a bit idealistic to try to introduce language that no one familiar with the subject will understand, but I appreciate the conundrum.)

Miriam Berkovitz maintains the rabbinic model of waiting seven days following the cessation of menstruation, though she rules leniently with regard to non-sexual contact, internal exams, and various other matters. Berkovitz concedes that it might be a good idea to use the language of holiness rather than purity, but she considers it important to maintain the traditional focus on marital life, so she opts for Grossman's earlier phrase, kedushat yetzirah.

Rabbi Avraham Reisner, like Susan Grossman, argues for returning to the biblical seven-day model, though he does so on slightly different halakhic grounds. He differs from Grossman in retaining the category of zavah, meaning that a woman experiencing an irregular flow of three days or more must wait seven days following the cessation (rather than the onset) of bleeding. Reisner also argues forcefully for maintaining the language of purity. Here's a bit of his argument that I found particularly eloquent:

Fundamental to the biblical description of reality is the notion of the twinned states of tum'ah (impurity) and tohorah (purity), one of which (tum'ah) is incompatible with the sacred....It would be convenient, but inconsistent with the Biblical foundation of our religion, to simply profess disbelief in a system described by the Torah at length. It might be noted, in this regard, that God, the soul and the metaphysical reality of Shabbat in the fabric of the universe are all Biblical notions that remain impervious to scientific address.

Reisner goes on to discuss the theory, promoted by such scholars as Jacob Milgrom and Baruch Levine, that the biblical attribute of impurity is rooted in an association with death. Menstrual blood, like semen, according to this theory, causes impurity because it constitutes a loss of potential life. On this basis, Reisner proposes that the cycle of niddah and purification can be viewed as a process of continual rebirth and renewal.

When I read the voting records for the three teshuvot, I was struck by the fact that Susan Grossman voted in favor of Miriam Berkovits's teshuvah in spite of their radically different practical conclusions, while she voted against Avraham Reisner in spite of their basic agreement on practical halakhah. This brought home like nothing else how important the language issue is to Rabbi Grossman.

Frankly, I can see where both Grossman and Reisner are coming from. On the one hand, I think that the concepts of purity and defilement are worth trying to understand and apply to our lives. On the other hand, applying these consequences to women alone can have troubling implications.

These are my thoughts for now. More later, God willing.

* I'm told that congregational rabbis weren't informed of their existence, which led to some rather awkward moments.

News Flash: Conservative Rabbis Supposed to Keep Kosher

"Do you eat dairy out?"

It's one of those phrases that only makes sense to a select group of people, in this case, Jews with some traditional background. The question refers to the relatively common practice of keeping a strict separation between meat and dairy at home while eating non-meat products at non-kosher restaurants, even though such establishments obviously do not use separate meat and dairy utensils. For the most part, the practice has persisted as a folk custom without rabbinic endorsement. In the mid-twentieth century, when kosher restaurants were few and far between, some Conservative rabbis and a few liberal Orthodox rabbis found ways to make limited exceptions, but for the most part, those who considered themselves bound by traditional halakhah were forced to concede that food prepared at non-kosher establishments was not kosher. Mordecai Kaplan, the spiritiual father of the Reconstructionist movement, endorsed the practice of keeping kosher at home while "eating out" as a way to maintain Jewish culture while allowing Jews to experience the modern world and interact freely with their gentile neighbors. This position was based on sociological considerations, however; Kaplan had no interest in preserving the traditional halakhic system.

It is not surprising that many Conservative Jews (as well as some nominally Orthodox Jews) continue to eat dairy out. People aren't entirely consistent by nature, and not everyone who keeps kosher does so for strictly halakhic reasons. Nor is it surprising that many Conservative rabbis eat out, as many are essentially Reconstructionist in theology. What continues to amazing me is how many Conservative Jews, including so-called rabbis, seem to think that "eating dairy out" is a coherent halakhic position. Many, in fact, seem to think that it is the only coherent halakhic position, and that anyone who doesn't eat at non-kosher restaurants is a religious fanatic, while anyone who doesn't keep separate utensils at home is "non-observant."

According to an article in the New York Jewish Week, a recent survey found that 71% of Conservative rabbis eat hot dairy food in non-kosher restaurants, while 92% eat hot food in vegetarian restaurants lacking rabbinic supervision. This has prompted Rabbi Paul Plotkin to begin to compose a teshuvah opposing the practice. The word teshuvah means "answer." Traditionally, teshuvot responded to specific questions, which means that they usually expressed halakhic positions that weren't maddeningly obvious. Unfortunately, the Conservative movement has apparently reached a point at which its rabbis can't appreciate what would be apparent to any outsider who gave it a moment's thought.

I fell into the Conservative movement more or less by default. For a while, I found its peculiar foibles amusing, but lately, it's really started to piss me off. I'm thinking of starting my own Deconstructionist community. Any takers?

(Cross-posted to the Kosher Blog)

The Tucker Teshuvah

or Theology and CJLS Politics

In my last post on the CJLS teshuvot on homosexuality, I tried to show that the Jewish legal tradition, rigidly conceived, does not reflect a hierarchy of sexual values with which many contemporary committed Jews can identify.

Fleurdelis28 had an excellent response, but Blogger was being a meanie that day, so she sent it to me by e-mail. Here's a snippet:

[A]ll those nice values we want to call Jewish may be much more evident in the narrative of the Bible than in its laws themselves. In spite of a radically different social context, there seem to be a lot of couples who do substantially love and respect each other, and when they aren't honest with each other, things don't go so well. . . .Avraham's and Yaakov's situations illustrate nicely why polygamy, though acceptable, is not such a great arrangement emotionally (even when it was your wife's idea in the first place). . . .Whatever you think is going on in the Song of Songs, it's clearly not about the relationship you'd expect from the worldview of the laws stated in the Torah. I don't have the time at the moment to go poring over the rest of the Tanach -- granted, a rather heterogenous narrative -- but I think by and large things go better for the sort of couples that do behave in accordance with those values you cite.

Yes, the Bible is quite heterogenous, but fleurdelis28 makes an important point: Biblical narratives often temper, or even undermine, the apparent thrust of biblical legislation. This is true of the rabbinic tradition as well, which consists not only of legal texts, but also of aggadah (narrative). And in fact, this very issue -- the often fraught relationship between Jewish law and Jewish narrative, including the narrative that modern Jews continue to live and create -- is one of the centerpieces of Gordon Tucker's argument for the normalization of Jewish gays and lesbians.

Fundamental to Tucker's teshuvah is the premise that the Torah is not the infallible word of God. He writes:

The deeper consequence of our theology, is that the Torah (and a foriori subsequent expressions of religious law) is not a record of commanding utterances from God, but rather a record of the religious quests of a people, and of their understanding of how God's will commands them. The long-standing -- and understandable -- tendency to divide up religious literature into halakhah (law) and aggadah (narrative) has thus always been a mistake. The law is given cogency and support by the ongoing story of the community that seeks to live by the law. . . . The ongoing, developing religious life of a community includes not only the work of its legalists, but also its experiences, its intuitions, and the ways in which stories move it. This ongoing religious life must therefore have a role in the development of its norms, else the legal obligations of the community will become dangerously detached from its theological commitments. (P. 19; emphasis in original)

My sentiments are with Rabbi Tucker, but I wonder whether the "enhanced" Halakhic* system that he advocates can practically be put into effect. Can we maintain a commitment to halakhic precedent on a daily basis while making exceptions when our consciences demand that we do so? Even if this is possible on an individual basis, is it really possible on a communal basis? And if so, what is to be the role of the CJLS in this process?

This brings me to an interesting point regarding CJLS politics. While Gordon Tucker is not the first to advocate this sort of reimagined halakhic system, he is, as far as I know, the first to do so in the context of the CJLS. Apparently uncertain what to do with his unconventional teshuvah, the members of the CJLS labeled it a takkanah (which I usually translate "rabbinic injunction," but perhaps "amendment" is more appropriate in this context). According to the CJLS's recently relaxed rules regarding takkanot, a majority of votes (13) is required in order for a takkanah to pass, as opposed to the six votes required for an ordinary teshuvah. (From what I've observed, there are normally a large number of abstentions.) The Tucker paper received seven votes in favor, which means that it failed to earn CJLS approval only because of its takkanah status. Unsurprisingly, Rabbi Tucker argued against the paper being considered a takkanah, maintaining that historically, the term was reserved for legal innovations that derived their authority from that of a particular Rabbi. This teshuvah, in contrast, "does not seek any extraordinary authority [nor does it] seek to create an unchallengeable innovation" (p. 3). Notwithstanding the semantic point, I think that the members of the CJLS were correct in recognizing that the teshuvah does demand something extraordinary, namely, to alter the parameters of halakhic discourse in such a way as to change the very role of the CJLS as a judicial body (even if it does operate in a merely advisory capacity). In effect, this paper is neither a traditional teshuvah nor a takkanah, but a recommendation for changing the entire system by which teshuvot are written. It hardly seems self-evident to me that such a document should require a mere six votes to pass.

That said, the approach to halakhah advocated in this essay is closer to my own ideas about Judaism than the more traditional approach of Joel Roth,** and I daresay that the same is true of a large proportion of Conservative rabbis, not to mention laypeople. Perhaps it should be given more of a voice in the CJLS.

* Tucker recommends using a capital "H" when referring to this more expansive type of Halakhah (p. 20). I am finding this a bit difficult to get used to, since a Reconstructionist rabbi I admire refers to a similar phenomenon as "halakhah with a small 'h'."

**See pp. 28-31 of the Roth Teshuvah for a critique of Tucker's approach.

Jewish Sexual Ethics

It's been over a month since the CJLS released their teshuvot on homosexuality, and those of you who care are probably wondering why I haven't yet posted any comments. The primary answer is that DH and I (all right, mostly DH) have been working through the halakhic sources utilized in the teshuvot, and some of them are very complicated.

I've realized, however, that before commenting on the nitty-gritty legal issues, it's probably worth saying a few words by way of introduction. In this post, I'd like to address a question that I've raised before, namely: what are the essential Jewish values in the realm of sex and relationships, and where do they come from?

Michelle Shain offers some of the most articulate criticism of the Dorf/Nevins/Reisner teshuvah* that I've seen from a Conservative layperson:

These authors and the ten rabbis who voted with them on Wednesday, have chosen to ignore divine will as expressed by centuries of clear and uncontested halakhic jurisprudence, in favor of a 21st-century American value.

This is actually a reasonable characterization of the teshuvah. But then, it's worth examining what the Torah and all those centuries of halakhic jurisprudence have to say about sex and relationships in general. Contemporary Jewish leaders who address these subjects typically stress such values as honesty, fidelity, and mutual respect.** At the very least, they mention monogomy: sex is supposed to occur within a committed, sanctified relationship between two adults. One could make a reasonable argument that these values are promoted in our textual tradition, but as far as Jewish law is concerned, strictly speaking, they are barely on the register. Premarital sex may be considered licentious behavior, but it is not strictly prohibited as long as the laws of menstrual purity are observed. [See CORRECTION below.] On the other hand, if a married couple that has sex without the woman visiting the mikveh, the man, at least, is liable for karet, the most severe penalty in halakhah. Extra-marital sex is prohibited for a married woman, but a married man who has sex with a single woman has not transgressed the letter of the law. True, polygamy was outlawed for Ashkenazim by Rabbi Gershom ben Judah around the year 1004 CE, but that was merely a takkanah (rabbinic injunction), and it was set to apply for a mere 1000 years (you do the math). The Torah does not prohibit pedophilia or even rape per se -- the penalty for sex with a virgin is compensation for her depreciated value, either monetarily or by taking her as a wife.

So I ask again, what are Jewish sexual ethics, and where do they come from? To suggest that they do not come from the Torah or from the halakhic tradition would seem to be a recipe for chaos, but I'm not sure that we can honestly assert the contrary.

[CORRECTION: As Mar Gavriel points out in this long and intricate post, pre-marital sex is probably prohibited rabbinically, if not midde'oraita' (that is, according to the rabbinic understanding of Torah law), at least in situations that cannot be defined halakhically as pilagshut (usually translated "concubinbage.") My point stands, however: the penalty for marital sex without mikveh use is unquestionably more severe than the penalty for premarital sex with mikveh use. This is not consonant with the hierarchy of values to which most of us are accustomed. I will discuss this further in the near future, God willing.]


*In case you missed it, the teshuvot are here. The press release on this page offers a summary, although its characterizations of some of the teshuvot are somewhat misleading.
**See, e.g., Elliot Dorff's Rabbinic Letter on Intimate Relations, quoted at length on pp. 37-38 of Leonard Levy's teshuvah, "Same-Sex Attraction and Halakhah."

The Teshuvot Are In

The responsa on homosexuality discussed at the last CJLS meeting are now available online. I hope to read them and offer a few comments some time in the near future. In the meantime, DH has some preliminary observations.

Surprise Surprise

As expectehttp://beta.blogger.com/img/gl.link.gifd, the Conservative movement's Committee on Jewish Law and Standards just approved three contradictory responsa on homosexuality. The best summary I've seen comes from Andrew Sullivan (of all people):

Conservative Judaism will now allow congregations, seminaries and synagogues to have gay rabbis - or not.

Seriously, though, I think everyone involved knows where the movement is headed on this issue. It's just a question of how much time Chancelor Eisen decides that decorum requires before the new policy is implemented.

(FYI, in addition to the three rabbis mentioned in the JTA article, Rabbi Joel Roth has apparently resigned. He will be missed, but it's time for the movement to move on.)

No Hekhsher Required

A recent Kosherblog post by Jabbett discussed the ethics of kashrut agencies certifying products that do not actually require rabbinic supervision. The post focuses on rubbing alcohol, which clearly does not require certification, as it is inedible (and also toxic). However, there are many edible products that do not require certification, either -- some less intiuitive than others. It is mainly due to ignorance that the very observant (even many rabbis) tend to insist that all processed foods be certified kosher.

This ignorance is fully understandable. Distinguishing between products that require rabbinic supervision and products that do not requires thorough knowledge of both the laws of kashrut and modern food processing techniques, and the latter may change at any time. In the age of the Internet, however, there is no reason why the kosher-keeping public should not be kept up-to-date on such matters. So I was happy to discover this site, via a comment by Jabbett on his own post. Rav Eidlitz is a renowned authority in the area of kashrut and is not affiliated with any particular certifying agency. His site contains a great deal of valuable information on keeping kosher, including a list of products that do not require rabbinic supervision. Here are a few that may surprise some readers:

Coconut Milk (not from China)
Corn (plain and cream style - frozen or canned)
Couscous (unseasoned)
Miso (unflavored)
Nori
Rice Pasta (containing only rice flour and water)
Wasabi Powder

There are certainly some things on Rav Eidlitz's site that are debatable, but for basic information on kosher products, it's a great placed to start. (While you're there, you should read the Kosher Alerts, although they are sometimes upsetting.)

Oh, and stay tuned: Jabbett is planning to post a more comprehensive list at Kosherblog.

UPDATE: DH says that he has known about this site for "a long time." Thanks for telling me! (J/K)

As if There Weren't Enough Confusion This Time of Year

Today's New York Times Dining & Wine Section has an article by Joan Nathan on new leniencies introduced by rabbis who are trying to "simplify" Passover observance for their constituents.

At least, that's the way it's presented.

In reality, none of these so-called leniencies are actually new. Jews who think that baking soda isn't kosher for Passover because it is "leavening" are simply mistaken. Only the "five grains" -- oats, wheat, barley, rye, and spelt -- can meet the halakhic definition of "leaven," or chametz. Baking powder typically contains corn starch, which is problematic for those who adhere to Ashkenazi custom, but the corn starch can be replaced with potato starch to make kosher for Passover baking powder. There is nothing wrong with the leavening per se.

Another supposedly new leniency is allowing legumes as well as grains such as rice and corn. According to the article, "Jews in medieval Europe began to keep beans and lentils, as well as grains, from the Passover table because until modern times they were often ground into flour." This is not precisely true. Legumes were considered problematic because they were grown alongside wheat and rye so that the grains could benefit from their nitrogen-fixing properties. Corn and rice were later restricted because they could be ground into flour. Sephardic Jews never observed these restrictions. Instead, they carefully separated the legumes from their grain before Passover.

Today, legumes are no longer grown alongside grains, so the issue should be moot. (See my rant here.) The only reason to refrain from eating legumes, or kitniyot, is the force of communal custom. In Israel Sephardim comprise a larger proportion of the Jewish population than in the U.S. and tend to dictate religious practice for less observant Jews, so consumption of kitniyot is typical. When the Masorti movement ruled that kitniyot could be eaten by Ashkenazim in Israel, they were merely codifying existing practice.

The Passover recipes accompanying the article include a Morrocan dish of Shad With Fava Beans, presumably to celebrate this "freer interpretation of the Passover pantry." Of course, since most New York Jews adhere to the stricter Ashkenazi practice, they won't be able to enjoy this dish during the upcoming holiday. For New York's Sephardim, on the other hand, eating fava beans on Passover is no novelty.

The other recipes are for cakes and cookies, two of which prominently feature "kosher for Passover" leavening. The Double Chocolate Mocha Drop Cookies and Sesame Vanilla Passover Cookies call for kosher for Passover baking powder and confectioner's sugar, respectively. Ironically, the only reason that either of these products require a special "kosher for Passover" version is that the standard formulas include corn starch, which can be eaten by anyone who will eat the fava bean dish. The Sesame-Vanilla cookie recipe is cautious enough to specifically call for "kosher for Passover baking soda." (Baking soda arguably does not require a hekhsher for Passover; at any rate, the most widely available brand, Arm & Hammer, has an OU-P.) Meanwhile, both recipes call for vanilla extract without any reference to the fact that it is typically made with grain alcohol -- that is, real chametz. Real vanilla extract is available with a Passover hekhsher, but it isn't easy to find.

Perhaps I'm being too picky. But it seems to me that American Jews have a tendency to make a big fuss over relatively unimporant matters while ignoring issues that are much more central to halakhah. This problem is exacerbated on Passover when many Jews assume a level of stringency to which they are not normally accustomed. Now, the New York Times and Joan Nathan are adding more confusion to the mix. Joan Nathan, at least, should really know better.

(Cross-Posted to Kosherblog)

International Agunah Day

Today is the 13th of the month of Adar, the Fast of Esther. As I mentioned last year, the Fast of Esther has been designated International Agunah Day by Yad L'Isha. An agunah is a woman who is unable to obtain a get (Jewish divorce). In modern times, such situations are typically the result of a husband's refusal to grant his wife a get, either out of spite or in order to extort money or gain custody of children. Although certain aspects of the halakhot pertaining to marriage and divorce developed in order to protect women, they are set within a patriarchal framework in which the decision to marry or divorce ultimately resides with men. Women who cannot obtain a ghet are left in an untenable situation, unable to remarry lest their children become mamzerim.

Such situations do not arise in the Reform movement, which often relies on civil divorce, or in the Reconstructionist movement, which grants unilateral divorces in cases of recalcitrance. Rachel Adler, a Reform activist and theologian, has advocated replacing the traditional marriage ceremony, kiddushin, with an egalitarian shutafut ("partnership") ceremony, in part to avoid the creation of mamzerim and thus promote harmony with other movements.

Orthodox and Conservative rabbis in the diaspora have devised various methods for preventing women from becoming agunot, including the use of conditional marriage formulas, special clauses within the ketubah (marriage contract), and prenuptial agreements that make civil divorce contingent on the granting of a get. You can read about Conservative approaches to the problem here; the prenuptial agreement sanctioned by the Orthodox Rabbinical Council of America can be found here. Responsible rabbis do not officiate at weddings unless the agunah issue has been addressed. Those of us who marry in a halakhic context also have a duty to avail ourselves of one of these methods of agunah prevention, even if we expect to be married forever (as most of us do). It is only once these precautions become de rigueur that the problem will have been resolved.

When precautions have not been taken and a woman finds herself unable to obtain a get, rabbinical courts will often attempt to annul the marriage by means of various legal loopholes. Some courts (notably the Conservative and Masorti courts and the Morgenstern/Rackman bet din) grant annulments more readily than others. In Israel, where rabbinical courts are an arm of the state, legal sanctions are often imposed on recalcitrant husbands. However, such sanctions are not always effective, and the courts are not always willing to impose them. Rabbi David Malka, an Israeli rabbinical judge, recently admitted to the Jerusalem Post that he often encourages women to submit to the financial demands of recalcitrant husbands:

"Listen, this is money that she never earned," explained Malka. "Only in theory does it belong to her.

"For instance, according to the law the wife is entitled to half of a man's pension rights even though she never worked a day in her life. I do not think she should remain an aguna because she is stubborn about receiving her half."

The ugliness of such a statement coming from a leader of a community that encourages women to be stay-at-home mothers boggles the mind.

The organization Yad L'Isha (mentioned above) has made important strides toward helping Israeli agunot, including the creation of the institution of to`anot bet din, women who advocate for other women in divorce cases. Although they have no halakhic standing in rabbinical courts because of their gender, the to`anot, who are experts in the laws of marriage and divorce, have managed to work with rabbinical judges to free many potential agunot.

Right now, however, Israeli women are in a precarious situation. Annoyed by the public pressure imposed on them by institutions such as Yad L'Isha, the Israeli Council of Rabbinical Judges has decided to sever all ties with organizations that advocate for agunot. We can only hope that there is enough negative publicity to change their minds.

Please help spread the word about this problem, and take a moment today to recite the prayer for agunot.

You can read more about the connection between agunot and the Fast of Esther here.

(Hat tip to Miriam Shaviv and OOSJ, may his blog rest in peace, for linking to the JPost article.)

The Daughters of Zelophehad as a Model for Halachic Change

The story of the daugthers of Zelophehad (Num. 27:1-11) is often looked to as a prototype of Jewish feminism. A group of women approach Moses, the leader of the entire Israelite nation, and demand, before all the members of the Israelite hierarchy, that they be granted a right previously restricted to men: the right to inherit land.

A close reading of the story (or Hirhurim), however, reveals that this interpretation has serious flaws. The daughters of Zelophehad argue not on their own behalf, but on behalf of their deceased father, who, they say, has a right "live on" by keeping his allotment of land within the family, a right that the current system would deny him because of his lack of sons. The ruling issued at the end of the narrative addresses precisely this complaint, and not the inequality of the sexes: the daugthers will inherit their father's land, but only for the purpose of ultimately passing it on to their sons. Moreover, in order to ensure that the patriarchal system of land-tenure is maintained, the daughters of Zelophehad (and presumably any women to whom the ruling applies) are required to marry within their father's tribe.

That said, it seems to me that the story can still provide a model for feminist change within halacha, as well as for any change that seeks to expand the rights of various individuals and groups within the Jewish community.

In this regard, the following features of the story are noteworthy:

1. Change is initiated by laypeople (in this case, people from a particularly low stratum of society). These people observe that the legal system, as it stands, does not do justice to certain members of the community.

2. The laypeople do not request justice; they demand it.

3. That said, they do so within the communal framework, by bringing their complaint to the religious authorities (in this case, Moses and God).

4. The religous authorities take their complaint seriously and address it. They do not dismiss those making the complaint because of their lack of status, or because of their tone, or because the complaint is based on the fundamental value of justice rather than the particulars of Israelite law.

5. The result is a partnership between bold laypeople and bold leaders, both willing to modify the legal system when it is in the interest of justice to do so.

Of course, there is one glaring difference between the situation in the parsha and the situation facing Jewish communities today. God very seldom speaks directly to our rabbis and tells them exactly what to do. Instead, we try to preserve the integrity of halacha by working within a textual tradition, which seems to say something slightly different to each individual who confronts it. But here again, I think the idea of partnership is key. We can't just wait for the texts to tell us what to do or for rabbis to tell us what to do. We have to figure out for ourselves what isn't right with the status quo and then try to work together, with our leaders and with our halachic tradition, to change it for the better.

Metsorah: The Purity System in Post-Temple Judaism

Last week I wrote about the biblical purity system. This week I’d like to discuss the impact of the biblical system on post-Temple Judaism.

After some initial ambiguity, it became accepted that most of the biblical purity regulations applied only when the temple stood, since their practical implications were limited to access to the sanctuary and to entities dedicated to the sanctuary. Exceptions to this rule occur where biblical law suggests implications that extend beyond the sphere of the sanctuary. These exceptions occur in three major areas:

1. Pure and impure animals, birds, insects, etc. In addition to transmitting ritual impurity, impure creatures may not be eaten, according to Leviticus 11. This chapter also specifies the ways in which these creatures may transmit impurity to various types of vessels (vv. 32-36). These regulations form the basis for the laws pertaining to the maintenance of kosher cooking implements and dishes.

2. Purity of priests. Priests (kohanim) are prohibited from contracting death-impurity except in very specific situations (Leviticus 21:1-4). Although one might logically assume that this prohibition derives from the priests’ role in the Temple, the Bible states the prohibition categorically. Observant kohanim therefore refrain from visiting cemeteries to this day.

3. Menstrual impurity Leviticus 18:19 prohibits sexual intercourse with a woman in a state of menstrual impurity. The basis for determining this state and purifying oneself of it is derived from Leviticus 15:19-30. The sacrifices called for by verse 29, of course, can no longer be offered, but women are required to immerse in water from a natural source (referred to as a mikveh), a process that the biblical text describes as “washing oneself in water.”

The rabbinic development of #3 puzzles me in a number of respects, which I will outline below. I would appreciate it if those of you with more extensive knowledge of this area of halachah could help enlighten me.

First, I am somewhat confused about the immersion requirement. The Bible does not mandate that a woman immerse after menstruation, or after any other form of discharge, for that matter. (It does, inexplicably, mandate that women immerse from semen-impurity contracted through sexual intercourse.) My understanding is that the rabbis derive the requirement of immersion after menstruation from the requirement that men immerse after contact with menstrual blood (vv. 20-24). (Ironically, this requirement no longer applies, since the impurity of males has implications only insofar as the sanctuary is concerned.) My questions are as follows: Is immersion after menstruation considered halachah mi-de’oraita (“biblical” law)? If so, is it derived by means of gezerah shavah (analogy) or some other legal mechanism, or is it simply assumed?

Second, I am perplexed by the fact that the rabbis deemed the laws of zavah relevant to the prohibition against sex with a menstruant. A zavah is defined by as a woman who experiences a long or irregular blood flow, as per Leviticus 15:25-30. Unlike women with regular periods, who remain impure for seven days following the onset of menstruation, zavot remain impure for seven days following the cessation of blood flow, presumably to ensure that the flow will not resume without notice.

Based on the biblical text alone, it would seem that the laws of zavah should apply to off-cycle periods, or to periods lasting longer than seven days. The rabbis, however, considered any flow of three days or longer a case of zavah, and the Talmud (BT Niddah 66a) relates that Jewish women took on the additional stringency of applying the laws of zavah to isolated blood stains “the size of a mustard seed” or larger. Because of the difficulty of differentiating between cases of niddah (regular menstruation) and cases of zavah, the rabbis eventually instituted a new law calling for the stricter zavah regulations to be applied to regular menstruation as well (BT Niddah 67b). Thus, contemporary Orthodox wives wait seven days after the cessation of menstruation, even when their periods are regular, before immersing in a mikveh and resuming sexual relations with their husbands.

My question is, why should the rules of zavah apply in post-Temple times at all? Leviticus 18 prohibits sex with a woman in a state of niddah impurity, not a state of zavah impurity. This may seem like hair-splitting, but it is the sort of hair-splitting that constitutes the bulk of rabbinic law. True, it would be illogical to prohibit sex with a woman experiencing a regular period and permit it in the case of a lengthy or irregular period. This could be resolved, however, by applying the laws of niddah to cases of zavah. Applying the laws of zavah to cases of niddah strikes me as beyond the realm of reasonable stringency. What was the purpose of instituting such a law?

Even stranger, contemporary Orthodox practice requires a woman to wait an initial five days before counting the extra seven, even if her period is exceptionally short. The reason for this, as I understand it, is that a woman may expel semen for several days after intercourse, resulting in a state of semen-impurity (also referred to as zavah). As I’ve noted, the Torah does not explicitly prohibit sex with a woman experiencing an irregular period, and it certainly doesn’t prohibit sex with a woman in a state of semen-impurity. Even if such a counter-intuitive prohibition did exist, it should only prevent a woman from immersing while she might still be expelling semen, that is (to use the rabbis’ somewhat overzealous estimate) for five days after intercourse. To prevent her from even beginning to count the requisite seven days preceding immersion seems to me to defy common sense.

Finally, I understand that women who ovulate early, during their period of niddah, and are therefore unable to conceive (a state known as “halachic infertility”) are sometimes given dispensation to begin counting the extra seven days before the initial five are completed. However, they are never (as far as I know) given dispensation to forgo the extra seven, which would seem to be the truly superfluous ones. Thus, these dispensations are unhelpful to a majority of women, whose periods typically last longer than five days. Is this because the seven days are a matter of rabbinic law (halachah mi-derabbanan), while the five are a matter of custom (minhag)? Even if this is the case, there are other situations in which rabbinic law is waived on account of extreme need. (Not only to save a life – for that purpose, even biblical law is waived.) Why not here?

A Few Timely Comments

Here is the kiddush that DH used last Purim, in case any of you would like to use it. There may be a revised version by tomorrow.

(Halakhic note: It has been brought to my attention that Ha-gafen covers all beverages just as Ha-motsi covers all foods, so you do not have to -- indeed, should not -- make a separate blessing on the scotch.)

(Note on the note: If this doesn't mean anything to you, feel free to ingore it, or consult your local Rabbi :))

On a very different note, please note (no pun intended; I'm just tired) that today, Ta'anit Esther, is Agunah Awareness Day. An Agunah (pl. agunot) is a woman who has been abandoned by her husband but is unable to remarry because he has denied her a get (religious divorce). You can learn more about the problem and potential solutions here. A prayer for agunot from the Jewish Orthodox Feminist Alliance can be found here.

To those who are fasting, I wish an easy and meaningful fast. To those celebrating Purim tonight and tomorrow, a chag sameach!

UPDATE: This year's kiddush for Purim can be found in DH's Live Journal.

Choosing Life

(I didn't come up with the biblical reference, but I like it.)

Our Hillel had a visit last week from the president and founder of the Halachic Organ Donor Society. Did you know that Jews have the lowest percentage of organ donors among all ethnic groups worldwide? If we valued life as much as we claim to, the opposite would be true. Organ donation has been judged halakhikally permissible by R. Moshe Feinstein and many Orthodox authorities after him, as well the Chief Rabbinate of Israel and the governing bodies of the Conservative and Reform movements. Some consider it obligatory. Our failure to donate is completely unjustified.

You can register for a donor card here. One of the more important things that I learned from the lecture is that in the United States, it is illegal to harvest a victim's organs without the approval of a spouse or family member. Many Jews oppose organ donation for all sorts of emotional and superstitious reasons, and sometimes because of misconceptions of halakha. If your emergency contact is one of them, your donor card is useless. You have to ask. (If a religious family member needs convincing, refer him or her to this page or this page.)

It's probably a lousy time to bring this up. But then, it usually is. Here's how I try to look at it: we take out insurance to protect ourselves from all sorts of eventualities that we hope will never occur. We don't like to think about these possibilities, and in most cases, the odds are that they will not happen. That doesn't stop us from doing what's necessary to protect ourselves. This is the same thing, except that it's for someone else. That doesn't make it any less urgent.

Full disclosure: DH and I haven't registered for cards. We're troubled by one aspect of the HODS form, which is its requirement that all preparations for transplant be made in consultation with a family-appointed rabbi. This seems like an unnecessary delay. If brain-stem death has been determined by a medical team, and if your family's rabbi views brain-stem death as halakhik death, what can he (or she) possibly have to contribute? (This is a serious question. Anyone?)

One last thing: HODS seems to be trying to arrange for lectures at synagogues, Jewish organizations, and high schools. Those of you in Jewish education and/ or the rabbinate might want to look into that.

Okay, that's all for now. We should all have good health, as they say. Happy Chanukah.

Why I "Do Halakha"

This started as a Live Journal meme (originally from Smartphil, via debka_notion), but the topic seemed blogworthy.

Smartphil presents a number of possible answers to the question, "why do you do halakha*?" The reasons come from Rabbi David Golinkin's "Halakhah of Our Time," and are summarized here. The following are my current thoughts on why I choose to lead a (more or less) halakhik lifestyle. I've used the summary of Golinkin's work as a guide. (Note: These are today's thoughts. My reasons may be different tomorrow.)

A. Theocentric Reasons

In my understanding, there can be no halakha without the presumption that (1) God exists, (2) God cares about human behavior, and (3) human beings can, at least to a certain extent, discern God's will. Without these presumptions (we can call them "postulates," for DH's sake), you might have something that looks like halakha, but the essence of halakha is missing. (We call that something "tradition.")

I do not believe that the entire Torah, let alone the Babylonian Talmud, was dictated to Moses at Sinai. I do, however, like to think that the Torah, the Talmud, and the expressions of Judaism that came after them contain some element of divinity. I would rather not be any more specific than that. This is all speculation.

As Naomi Chana once said somewhat more articulately, I don't think God really cares whether or not I mix meat and dairy, but I do think He cares that I care. (Sorry, I'm old fashioned. My God is a He.) Halakha offers a means to demonstrate my commitment to God's will, even if I can't be sure exactly what it is that He wants.

B. Ethnocentric Reasons

To be honest, I don't quite understand the argument that Jews should adhere to Jewish law simply in order to preserve Judaism or the Jewish people. There's no sense in trying to preserve something unless it has inherent value. And I don't buy the argument that Judaism is worth preserving simply on account of the ethical principles that it imparts. Certainly, Judaism has contributed certain ethical values to the world (or, at least, certain expressions of those values), but there can be ethics without Jews or Judaism, and, sadly, there are nominally religious Jews with little regard for ethics.

That said, the specific ways in which I observe halakha have a lot to do with tradition and community. I want to strive to live in accordance with God's will, but I don't want to do it alone. I want to be a part of the "evolving religious civilization of the Jewish people" (as the Reconstructionists put it), and I want to be a part of a living community.

C. Anthropocentric Reasons

Golinkin offers two very different anthropocentric reasons to observe halakha:
(1) It encourages self-discipline, and
(2) It brings joy.

With regard to (1), I would say that self-discipline is only valuable insofar as it is applied to inherently valuable pursuits. It is quite possible that if I prayed more regularly I would also exercise more regularly, study more diligently, arrive on time for appointments, and be more cautious about my diet. I was once better at all these things, and I daresay they were connected. It wasn't so pleasant, though. People were always telling me to "loosen up." Maybe instead of loosening up I should have learned to hide my stress. (Something to think about over this season of repentance.)

As for (2), well, this seems like a good opportunity to plug Naomi Chana's recent posts on prayer. For my own part, I admit that one of my primary reasons for observing Shabbat as I do is that it makes me happy. I like having a chance to rest, take a break from what I normally do, wear nice clothes, eat good food, and chat with friends. I attend synagogue partly out of a sense of religious obligation, but also because I genuinely enjoy it. Missing services puts me in a lousy mood.

I certainly don't enjoy all mitsvot. Waking up early to pray is pretty unpleasant (unless I'm joining the wonderful egal minyan, in which case it's not too bad), and when I'm not in a religious setting, restrictions on eating and movement can be very awkward. I suppose the true test of my commitment to halakha is the extent to which I observe the mitsvot that I don't enjoy. But I don't think that getting pleasure out of mitsvot** is inherently bad. Like the Chassidim, I like to think that God wants us to be happy.

* Jewish law/ religious observance
** Commandments.

Correction: Fleurdelis notes that the case of a Kohen marrying a divorcee also involves a biblical prohibition. Yet another instance of Elf undermining her own argument.

In a comment to Out of Step Jew's post on "Books, Dust, and Chametz," George posted the URL to an article by R. Shlomo Aviner entitled, "How Not to Clean for Passover." I think it's about the right time in the week for a few reassuring words, if only to prevent (additional?) unnecessary ulcers. Here is a summary with my comments:

1. If you're going away for the entire holiday, you can "rent out" your living space and not clean at all. If you will be home the night before, however, you are still required to do bedikat chametz (the candlelit search for chametz) wherever you are. I had to do this once, and it was exceedingly strange -- searching for the pieces of bread I'd put out while ignoring all my other chametz. Rabbi Aviner suggests cleaning out a small room (e. g. the foyer), and performing the search there. (If you live in one room, I suppose you can clean a corner or other small area.) This makes considerably more sense than what I did.

2. The prohibition against owning chametz only applies to pieces of larger than a kezayit (3 cubic cm.). There is no need to clean rooms in which you don't eat, and no need to panic over the possibility of missing a few crumbs.

3. There is no need to worry about chametz in unreachable places. (This would include the spaces between the keys of your keyboard, Old Timer ;-).) Bits of chametz in corners and crevices, or stuck in the radiator, or whatever, are not only normally smaller than a kezayit, but also "unfit for consumption by a dog."

4. R. Aviner does not recommend using Passover vacation (halevai aleinu!) for "spring cleaning." Nissan is supposed to be a happy month. We were freed from bondage in Egypt, and there's no need to re-enslave ourselves.

For our part, I know that DH and I would never do this thorough a cleaning job if we didn't do it before Passover. I've never lived in one place for more than a year (except with my parents), but every time I've moved I've discovered positively revolting things in nooks and crannies that had never been cleaned. I don't even want to think about what this place would look like after six years if we didn't do one thorough cleaning job each year. Having a deadline helps.

It's also worth noting that R. Aviner is dealing with a sociological reality different from (most of?) ours. He's concerned that women will slave through their one opportunity to hand the kids over to hubby and travel with friends. Those of us in egalitarian households who don't have real "breaks" may as well clean now as any time.

5. It is important to carefully clean clothes that children will wear over the holiday and games with which they will play, since children may actually pick up small crumbs and eat them. (Apparently, "unfit for consumption by a dog" does not imply "unfit for consumption by a toddler.") Children's pockets should be checked even after the clothing is put through the wash. There is no need to clean out-of-season clothes that they won't wear.

6. R. Aviner apparently maintains that non-food products can still be considered chametz. He recommends locking problematic cleaning products in the medicine cabinet and selling it. Others include non-food products in the category of items that are "unfit for consumption by a dog."

7. It isn't necessary to clean between the pages of books, even if there may be crumbs there, unless you plan on placing the books on the kitchen or dining room table. (It's a good idea to use haggadot rather than "benchers" for birkat ha-mazon.)

8. The article includes guidelines for cleaning and kashering the kitchen. Such guidelines can be found in numerous books and websites, with minor variations (e. g. how to deal with dishwashers and microwaves). R. Aviner does not recommend cleaning anything that can be locked up or taped over and sold. He recommends cleaning the kitchen first and then moving on to rooms that are less vital.

9. Cleaning for Passover is important, and it is permissible -- even commendable -- to take on stringencies. However, if these will cause tension within the family or make the Passover season miserable, it may be better not to. Those who take on stringencies without being aware that they are stringencies (as opposed to the letter of the law) are not required to maintain them.

R. Aviner states that it is important to have a "kosher Purim" and a "happy Passover." This is probably a cliche in the frum world, but I've never heard it. Sounds good.

We talk about "building a fence around the Torah." When it comes to Passover, it's more like a mile-high fortress surrounded by a mile-wide moat and guarded by fire-breathing dragons.

Take kitniyot (kitniyos), foods that are not and cannot become chametz (leaven), but are forbidden according to Ashkenazi custom. Kitniyot fall into two categories. First, there are legumes, which, on account of their nitrogen-fixing properties, used to be grown alongside grains. As a result, is was impossible to harvest legumes without including a few grains. Then there are grains that are not among the five that can become chametz (wheat, rye, oats, barley and spelt). These are forbidden because their flour is difficult to distinguish from the flour of the problematic five.

Neither of these issues is particularly relevant today. The practice of growing legumes alongside grains was long ago replaced by a crop rotation system. Rice flour comes in packages labeled "rice flour," so it is difficult to mistake it for anything else. The same applies to the flour of corn and other grains. Corn on the cob, corn oil, and corn syrup are should be even less problematic.

Yet, the list of kitniyot seems to expand every year. In spite of R. Moshe Feinstein's position, legumes that were unknown in Eastern Europe, such as peanuts, are now forbidden. Then there are products such as sesame and mustard, which are forbidden because they resemble other kitniyot. Hardly anyone accepts the position that derivatives of kitniyot, such as oils, are permitted. Kitniyot are, for most practical purposes, treated as chametz.

Kitniyot are only the tip of the iceburg. At this time of year, you'll find generally reasonable people "kashering" their doorknobs and lining their walls with aluminum foil. You'll find people pre-buying milk, in case the cow that it came from ate one of the forbidden grains. Charedim in Israel will set aside bottles of tap water, in case the Sea of Galilee was contaminated by a fisherman eating a sandwhich. (Sephardim will use filters.) People will pre-wash their mushrooms. Women will sell their makeup. Meredith will probably kasher her hair iron.

The worst aspect of this insanity is that, in practice, I buy into it wholesale. The obsessive-compulsive tendencies that I criticize in other Jews year round suddenly become my own. Yesterday, I insisted that we buy tea and olive oil that were certified for Passover. Now I'm worried about my bottled water. (I've heard that the caps are sometimes sealed with chametz.) Even worse, I've been reading the Star-K website:

As Pesach nears, the grocery bills mount and the bank account dwindles, the Jewish housewife courageously attempts to hold the household budget intact without compromising her strict standard of Pesach Kashrus.

That's what I need! A Jewish housewife! Where can I get one?

Can the Passover consumer confidently purchase fresh fruits and vegetables without worrying about the wax coatings used to maintain the freshness of the fresh fruit and vegetables? Our research of food grade waxes has shown that soy proteins may be used as a thickener in some waxes. This means that the waxes may contain Kitniyos derivative [sic!].

Kitniyot derivatives? Nooooooooooooooo!

However, since the soy protein would be Batul Brov, [sic!] it is a minor ingredient, which would be permissible on Pesach, and would not pose a problem to [sic!] supermarket fruits and vegetables.

I've heard otherwise. Shoot. Now I can't trust the Star-K.

Fresh Peeled or Value Added Vegetables, such as peeled potatoes, carrots, or celery in plastic pails, or in plastic bags, has become a real favorite among housewives. It is fresh, clean, a time saver, and seemingly free of Kosher for Passover concerns. SAVE ONE. How do you retard browning, i.e. oxidation, so that the vegetables retain their fresh appearance? Some companies use metabisulfites, which are Kosher for Pesach, [sic!] other companies use citric acid, which would require Kosher L'Pesach Certification.

Fotunately, I have never even considered buying pre-peeled vegetables on Passover. (Seriously.)

It goes without saying that leafy vegetables going through a clean and wash system would require strict Hashgacha on their cleaning system insuring the consumer that the system effectively removes insects which are forbidden year round.

Wait -- leafy vegetables can be kosher? Now I really don't trust the Star-K.

In spite of its glaring leniencies, this website did help me avert a near disaster. As DH and I were trying to cut down on our list of products to buy in Brookline yesterday, he suggested that it might be all right to buy uncertified honey at our local supermarket. (Now he assures me that he would have done some research before making any such purchase.) I quickly rejoined that even honey marked 100% pure may be adulterated with trace amounts of kitniyot. ELF saves the day again!

All right, enough of this silliness. I have to start cleaning, or I may not have enough time to kasher the bathroom.

Berger has posted a response to Simcha's response to Berger's response to Simcha's response to Roth's teshuva. Berger states:

"I reject the (ostensible) compromise of 'only written under Divine inspiration and not dictated by God,' since this formulation is (a) banal, (b) inexact, and (c) lacking in any recognition of the mysterium tremendum which must accompany any discussion of the relationship between God and Torah. Matter-of-fact catechisms must not be the stuff of modern Jewish theology."

This is absolutely correct. I somewhat regret my attempt to reduce these complex ideas to simple statements in last Wednesday's post. Mostly, I was trying to convey that there is a middle ground between regarding the written Torah as "omniscient" and unassailable, and rejecting its authority entirely.

I am going to visit my family this weekend, so I won't be blogging for a while. When I return, I hope to move on to another topic. This discussion has been very interesting, but I don't think that anyone has or will change his or her mind. Also, I'm not the best person to be defending the Conservative approach to halakha. I don't want my ideas confused with the movement's ideology.

Of course, everyone should feel free to continue the discussion in the "comments." I may even respond :-).

If you read the "comments" on my posts regularly, you already know that Zackary Sholem Berger's "Anonymous Friend" now has a blog of his own. I would like to call your attention to the fact that he refers to me as the "self-proclaimed proponent of Apikorsus." He-he.

Seriously, I don't expect anyone with an Orthodox perspective on halakha to be persuaded by R. Simcha Roth's arguments. I do, however, hope that readers of all stripes will appreciate that R. Roth is a learned man who does care about halakha (as he understands it), and that his efforts are motivated by genuine concern for people in a very unfortunate position.

Since KeshetJTS seems to have disappeared from the face of the web, leaving most readers of this blog with no access to Rabbi S. Roth's teshuva, I've decided to post a few excerpts. Please bear in mind that, although this post is lengthy, I am ommitting a great deal; the original is 42 pages long.

A few disclaimers:

1. The content of this post is by nature sexually explicit.
2. For technical reasons, I've deleted the Hebrew text and included transliterations where Rabbi Roth neglected to do so. I've also made some changes in format.
3. I've replaced some footnotes with paranthetical citations and deleted others. Some are important, but it didn't make sense to take up so much space.
4. I've omitted the entire section on gays in the rabbinate. It shouldn't be too difficult to figure out what Rabbi Roth's position on the matter is.

Here are the excerpts:

This paper is not addressing the general issue of a halakhic attitude towards homosexual acts, but it is addressing itself to the specific needs of a religious gay person who identifies with the ideology and practices of Conservative Judaism and who wishes to live, learn, practice, and perhaps teach this tradition. There is, therefore, much in this paper that will not be acceptable to a secular gay rights activist. . . .

The term used in our classical sources to denote the major homosexual prohibition of the Torah is mishkav zakhur. This term is now loosely understood as being the equivalent of "homosexuality", but this is quite erroneous. Mishkav zakhur refers to one specific act alone and to no other. The Written Torah specifically prohibits mishkav zakhur twice:

"You shall not copulate with a man as one copulates with a woman: it is an abomination (Lev. 18:22).

"If a man copulates with another male as one copulates with a woman, both of them have acted abominably; they shall be put to death..." (Lev. 20:13).

Rambam (Hilkhot Issurei Bi'ah 1:14) gives the following definition of mishkav zakhur:

"When one male copulates with another male ... from the moment of [anal] penetration ... both are punishable by stoning..."

In modern times as well, this quasi anatomical definition is accepted. . .

If the Torah is prohibiting the specific act of anal penetration of one male by another; it follows that the two verses of the Torah are not a blanket prohibition of homosexuality. The gay male who scrupulously avoids anal penetration cannot be guilty of mishkav zakhur, and the opprobrium expressed in these verses cannot apply to him. . .

As we have seen, the act that the Torah prohibits is anal penetration of one male by another. For obvious anatomical reasons this cannot apply to females. This is the reason why there is no equivalent female homosexual act which would earn the participants either judicial death or excision. Nevertheless, homosexual acts between women were also forbidden by the sages. Their prohibition is based on a rabbinic interpretation of a verse in the Torah:

"You shall not copy the practices of the land of Egypt where you dwelt, or of the land of Canaan to which I am taking you; nor shall you follow their laws" (Lev. 18:3).

Rambam (Hilkhot Issurei Bi'ah 21:8) codifies as follows:

"For women to cuddle each other is forbidden as this is one of the 'practices of the land of Egypt'. However, even though the act is prohibited it is not punishable ... because there is no specific Torah prohibition and sexual intercourse is not possible. This is why [such women] are not prohibited to ... their husbands because of prostitution ... for there is here no such prostitution... A husband should prevent his wife from such practices by forbidding women known [to do such things] access to her and by [forbidding] her to go out to them."

Since it is not one of the arayot nor are there any judicial or social consequences there is no need for us to investigate halakhic implications of female homosexuality at this point, since they can be subsumed in the discussion of male homosexual practices other than mishkav zakhur and masturbation. However, we should note that it is significant that the prohibition of the sages seems to assume that the women involved in these activities are married (to men). . .

The Shulan Arukh states (Even ha-Ezer 1:1.):

"A man must marry a woman in order to procreate..."

Does this requirement, sequentially the first of the 613 mitzvot of the Torah, apply to gay males? . . .It would be cruel in the extreme to impose marriage on a man for whom any sexual encounter with a woman would be totally distasteful and probably a physical impossibility because of the constraints of his psychological and emotional complexion. It would be cruel not only to the man but also to the woman he marries. . . When a person's actions are influenced by a power beyond his control this is called "constraint", ones, by our sources. We shall return to the halakhic implications of 'constraint' later on in this paper. . .

Masturbation is termed in our classical sources hashatat zera. This means that the effect of the action is to expel semen for a purpose other than procreation and into a receptacle other than a womb. Masturbation is prohibited by the Palestinian Amora Rabbi Yoanan in the Talmud (Niddah 13a) and he bases himself on the death of Onan as described in the Torah (Gen. 38:10). The Shulan Arukh (Even ha-Ezer 23:1-2) . . . prohibits this activity in hyperbolic language. . .

If, in addition to mishkav zakhur, this activity also is denied the gay man he will be left with almost no physical means for the relief of sexual tension and for sexual expression, which will have possibly dire consequences, ranging between mental anguish, emotional instability and suicide [this claim is supported in a footnote]. . .

Despite the uncompromising language of the Shulan Arukh as quoted above there are halakhic possibilities that will permit a gay man sexual expression through masturbation. The most direct possibility is to follow the line of thought of Rabbenu Tam (Yevamot 12b s.v. Shalosh) that anyone who is exempt from the mitzvah of procreation is not bound by the prohibition against masturbation. Since we have accepted that gay men are exempt from the mitzvah of procreative marriage it would follow that they are not bound by the prohibition against masturbation. However, no other posek has taken this line of thought, and while Rabbenu Tam is certainly great enough to rely on as it were, it would be prudent also to search for another avenue of approach as "back up". In his commentary on that hyperbolic statement of the Shulan Arukh, Bet Shemu'el points out that the hyperbole in the statement is misleading. Sefer Hasidim (Siman 176) of Rabbi Yehudah he-Hasid had already pointed out that there were circumstances where not only was masturbation permitted but should be seen as preferable.

"One person asked whether someone whose sexual drive was getting the better of him and he was afraid that he might sin by copulating with a married woman or his menstruous wife or any other of the arayot that are forbidden to him whether he could masturbate so that he might not sin. The response was that in such circumstances he should masturbate, for if it is a married woman it is preferable that he masturbate rather than sin with the woman..."

In his commentary Hokhmat Shelomoh on that same paragraph in the Shulan Arukh, Rabbi Shelomoh Luria goes even further, and suggests that it might even be a mitzvah to perform a lesser sin in order to avoid a greater sin. . . Therefore, according to the thinking of Rabbi Yehudah he-Hasid, masturbation as an alternative to mishkav zakhur is to be condoned; and according to Rabbi Shelomoh Luria if the masturbation succeeds in preventing the sin of mishkav zakhur then it might even be regarded as a mitzvah! . . .

In spite of the above statements it is highly unlikely that any of the authorities mentioned intended the heter to be anything more than occasional, in time of acute temptation. Is it possible to see this heter as ongoing in homosexual circumstances? I believe that we can indeed say so, because it is but natural that a religious gay man will seek out a partner and a relationship. Under those circumstances the temptation of mishkav zakhur is a constant one, and the heter of masturbation is a constant need. The gay man's emotional health depends on it, and we should bear in mind that if both masturbation and anal penetration are denied him the religious gay man will in all probability forsake religious observance entirely. The wise posek too will "calculate the loss of a mitzvah against its reward and the reward of a sin against its loss". . .

The Torah stipulates:

"None of you shall come near anyone of his own flesh to uncover nakedness" (Lev. 18:6).

Rambam, basing himself on a very appropriate midrash in the Sifra (Aarei 13), states (Sefer ha-Mitzvot, Lo Ta'aseh 353) that this is a Torah command that requires everyone to maintain a complete physical distance from any possibility of contact with arayot. Thus Torah law would strictly forbid hugging, kissing and fondling someone such as a sister or aunt. (Indeed, a special exception had to be made to permit a man to have any kind of physical contact with his own mother!) This requirement does not seem to have been strictly enforced even in talmudic times. In the Gemara (Shabbat 13a) we read that one trunt Amora, Ulla, when returning from the Bet Midrash would kiss his sisters on their breasts! This is emended by the Gemara to "on their hands", but according to the law as stated by Rambam this would make no difference, since either limb is forbidden him! In his animadversions on Sefer ha-Mitzvot, after analyzing several sources, Ramban claims that Rambam is wrong, and that the prohibition he describes is only rabbinic, mi-de-rabbanan, and not mi-de-'orayta. . .

Even if Rambam is correct that this is prohibited by force of Torah law this would still mean that the gay person, acting under the constraint of his nature, would not be held culpable for not observing this commandment. If Ramban is correct that it is only mi-de-rabbanan then it is even easier to make this claim. We have already seen that under the circumstances to which we are relating even masturbation would be permitted as an alternative to mishkav zakhur. From there it would be a short step to apply the logic of a kind of reversed kal va-homer: if masturbation is permitted to prevent mishkav zakhur could not keruv basar (physical contact) be permitted for the same reason? . . .

We now approach the issues that are involved when two gay people do to each other what we have already seen above would be condoned when practiced by an individual as a "replacement activity". The basic problem here is whether inviting someone to participate in such acts constitutes "aiding and abetting," or "putting a stumbling block before the blind." Is it possible for a religiously motivated person to invite someone else to participate in an activity that is still technically sinful (even if condoned)? The classical place where this is discussed is in the Gemara (Avodah Zarah 6a-b), where the question is posed whether it is permitted to pass wine to a nazir - a person who had taken upon himself for a specific period of time the stringencies of not partaking of alcohol or cutting his hair. If the nazir drinks the wine he has committed a sin (by breaking his religious oath of abstinence). By passing the wine to him or selling it to him (even at his request) am I "aiding and abetting" him in a sinful act? The answer of the Gemara there is clear: you would not be aiding or encouraging him in his wrongdoing if he were going to do it any way. . .

What practical conclusions can we draw from the halakhic conclusions offered in Part 1? It would be very easy indeed to create a halakhic case for blanket prohibition of all homosexual activity. It would also be very cruel. Once Conservative rabbis are convinced that homosexuals are not responsible for their orientation, cannot control it, cannot ignore it and that it is not a pathological condition we should realise that we have a duty to "pull up the halakhic floorboards" to find a heter. We have done this in regard to kohen v'gerusha v'giyoret; we have also done this in regard of the aguna; we have done this too in regard to mamzer u'mamzeret; we have done this in regard to the halakhic status and role of women in general. We can do no less for the sincerely religious gay person than we have done for the others. Not to do so would be an act of halakhic cowardice. . .

[I]t is to the benefit of all concerned that we create a framework that will give ritual effect to the creation of same-sex couples and that this framework would not delegitimize the traditional heterosexual family. There are three main benefits: a reduction in the danger of AIDS and other life-threatening sexually transmitted diseases, a decrease in the incidence of promiscuity, and the ritualization of the relationship within an halakhic framework. In this regard there are two issues that must be scrupulously avoided. Firstly, under no circumstances can the creation of this bond of affection be considered to be kiddushin. . . Secondly, the financial rights of the woman within the marriage bond are secured by the Ketubbah, the marriage deed. This is a document in which witnesses testify to the fact that the husband has made financial provisions for his wife, provisions which, in theory, are to be actualized in the event of divorce or his dying before she does. Kiddushin between two free males or two free females is technically impossible. Nevertheless, it should not be too difficult to find aesthetic alternatives to these items which would be halakhically acceptable. In an addendum to this paper I provide a suggested ceremony, and I have added a few explanatory notes to that text. And it is entirely appropriate that such an effort be made. It is not only the practical issue of discouraging promiscuity because of STD's. Gays and lesbians feel the need for establishing a permanent loving relationship no less than straights. The paternal and maternal instinct is no less strong in gays and lesbians than it is in their heterosexual counterparts. Religious gays and lesbians want to celebrate and commemorate their life-cycle joys and sorrows within the framework of the religious kehillah just as straight people do. We should make the effort to find appropriate halakhic and communal avenues to facilitate these needs. . .

One objection that could be raised to the suggested arrangement for a commitment ceremony could be that the legitimacy of the bond is based in the halakhic presumption that the male couple will never engage in mishkav zakhur. . . This objection is a red herring. There is, in fact, no halakhic difference between the sin of mishkav zakhur and the sin of be'ilat niddah, copulating with a woman who has not bathed in a ritual bath after her last menstruation: both are hayyavei karet. It is commonplace that the overwhelming majority of Conservative married women do not visit the mikveh regularly (or at all!). Based on statistical probabilities, in the case of every marriage the presumption should be that the woman has not visited and will not visit the mikveh. Yet this fact does not deter even one Conservative rabbi from performing huppah-kiddushin for any such couple. We do not pry into what happens in the couple's bedroom after their marriage; the same should apply to a gay couple. . .

In his responsum of a decade ago Rabbi Elliot N. Dorff wrote: "Taken together, these data are sufficient for me to affirm confidently that we should no longer see homosexuality as a moral abomination. The tradition, in saying that it was, clearly assumed that sexual attraction to, and sexual intercourse with, people of the same gender were totally voluntary. We certainly know enough by now to assert that that is a factual error." Rabbi Shmuley Boteach has written:* "Religious people should finally get over their all-too-apparent homophobia and reverse the discriminatory policy which says that homosexuality is an aberration marked by God for special censure. Like heterosexual men and women, gays are God's children, capable of bringing light and love to a planet whose darkness is caused not only by sin but also misguided judgmentalism." Amen.

*In an article entitled "Dr. Laura Misguided On Homosexuality", June 2, 2000 / 28 Iyyar 5760.