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.

JTS Decision to Admit Gay Students

The Jewish Theological Seminary officially announced today that it will admit qualified gay and lesbian students to its rabbinical and theological schools.

Chancellor-elect Eisen's letter to the community announcing the decision is quite eloquent and worth reading in its entirety. I particularly liked this bit:

The debate over ordination of gay and lesbian students has served to highlight the need for serious discussion and resolution of these key issues of principle concerning what halakhah means for Conservative Jews. Such disagreements are particularly vexing to Conservative Jewish laypeople frustrated at the movement's inability to decide this and other matters quickly and unequivocally. Others, myself included, while no less impatient at times, actually take pride in the fact that our movement struggles over issues such as these. We do so as the heirs to Frankel's founding declaration of our purpose: "the reconciliation of belief and life, the assurance of progress within our faith, and the refining and regeneration of Judaism from and through itself." Both sides of the current debate have acted in accord with Frankel's call for "maintaining the integrity of Judaism simultaneously with progress." This remains, as he wrote in 1844, "the essential problem of the present." We cannot, any more than he could, "deny the difficulty of a satisfactory solution." But we must find a solution.

. . .

The proper way to do so, I believe, is not for JTS to promulgate a set of standards for Conservative belief and behavior. It is, rather, to engage Conservative Jews in discussion of what matters to them and why. Many of us are convinced, on the basis of numerous conversations with clergy and laypeople alike, that many Conservative Jews do feel a keen sense of mitzvah, in all the connotations stored up in that word by the Bible and the sages. They feel that there are deeds they should perform, activities in which they should engage, loyalties they should cherish. . . .It is my hope and belief that getting Conservative Jews to talk about these matters will be a step toward greater commitment and consensus.

Then he writes this:

JTS has already taken on the responsibility for leading this discussion. Working with the Chancellor's Rabbinic Cabinet and with the RA and the United Synagogue, we have set in motion a process that we hope will eventually include every arm of the movement as well as professional and lay leaders. Our faculty and students will be actively involved. Stage Two of that process — logically and pedagogically dependent on the first — will be reclarification of the place of halakhah in the movement: the nature, authority, and scope of Jewish law in relation to other sources of authority and guidance. We will embark on that stage in the upcoming two years.

The position of halakhah in Conservative Judaism is going to be clarified over the next two years? Good luck!

Anyway, I would like to get back to commenting on the teshuvot at some point. (I'd also like to comment on the teshuvot on mikvah that were released at the same time.) It's just that for some reason, posting about halakhah uses up a lot more of my time and energy than it should. Good thing DH has been on top of it.

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.)

Troubling Texts I: The Sexual Prohibitions

This year, I was asked to speak after mincha, the afternoon service, on Yom Kippur. Although it immeditately occurred to me that I should speak about the mincha Torah reading, with its discussion of sexual prohibitions in general and homosexuality in particular, I remained so ambivalent about the subject matter that until the very moment that I stood at the bima, I was seriously considering ad-libbing something about Jonah.

Even after receiving generally positive feedback, I wonder whether I did the right thing by raising such a controversial subject on Yom Kippur, rather than offering a few simple words on teshuva, or a pep-talk for the final service of the day. Maybe you should tell me. (Be honest, but please, no badmouthing.)

Here are a few excerpts:

There has been a great deal of emphasis lately, in the political arena as well as within the leadership of the Conservative movement, on the verse reading “Do not lie with a man as one lies with a woman; it is abhorrence” (Lev. 18:22). But really, the entire framework of the Torah reading is problematic. Many of the regulations in it are based quite explicitly on the idea that women are the sexual property of men. We read, “Do not uncover the nakedness of your father’s wife; it is the nakedness of your father” (Lev. 18:8); in other words, you, male reader, may not have sex with your father’s wife, whether she is your biological mother or not, because her nakedness, her sexuality, belongs to your father. Because most of the sexual prohibitions in this chapter are based on this principle, we don’t have any discussion of many of the more pressing issues in contemporary sexual ethics.. . . The premise of the text is that men can have multiple sexual partners and women can have one, and that sexual relations are problematic primarily when they involve a woman who belongs to another man.

The discussion of homosexuality in the Conservative movement has, to a large extent, I think, sidestepped some of the most fundamental questions that this chapter raises. To what extent is the Torah a product of its historical context, and to what extent is it timeless? Conservative leaders generally agree that Judaism allows human beings a good deal of interpretive license with the Torah, but there is much less agreement on the limits of that license, or on whether there even are limits. This is because there is no consensus on the even more fundamental question of the nature of the Torah’s authority. Is it the direct word of God revealed to human beings? Is it God’s word interpreted by human beings through the prism of their own experience? Or is it a noble, but ultimately flawed attempt by humans to figure out what God’s will might be? These are crude articulations of complex theological ideas, but I think that it’s important to articulate them even in this very crude form, to convey some sense of the range of positions held by people who consider themselves Conservative rabbis.

I also think that, however we approach these issues, egalitarian communities such as this one can’t in good conscience take the prohibition against sexual intercourse between men at face value. Both its context and its wording strongly suggest that the prohibition is fundamentally about maintaining the boundary between male and female, and that is a boundary that we routinely transgress in our religious practice. Whatever our perspectives on the fundamental theological issues I mentioned earlier, the fact that we’re here indicates that we all believe, on some level, that although the disparity between the status of male and female was quite conspicuous at earlier stages of the Jewish religion, it is ultimately unjust to perpetuate that disparity. . . .

I’m not going to make a halakhic argument. . . but I would like to discuss what I think is an interesting exegetical and philosophical approach to this prohibition.. . . This interpretation is advanced independently, in different ways, by the Reform feminist theologian, Rachel Adler, in Engendering Judaism and by the gay Orthodox rabbi, Steven Greenberg, in Wrestling With God and Men. Both authors see this law as fundamentally prohibiting men from turning other men into women. It is a reading that actually fits the wording and context of the verse very well, and it explains why the Bible doesn’t prohibit lesbian sex. In a society in which men have a higher status than women, sexual intercourse between men disrupts the social order in a way that sex between women doesn’t. It degrades one of the partners by turning him into a woman.. . . So there is a concern for justice here, a concern that men not “declass” or degrade one another, just as there is a concern fro justice behind the prohibition against sleeping with another man’s sexual property. It isn’t the inclusive justice that we would demand today, but it is a concern for justice nonetheless.

Adler and Greenberg both go a step further in their readings of this verse to suggest that we bring it up to speed with our contemporary sense of justice by employing a rabbinic exegetical principle called ribuy, or “expansion.” Rabbi Greenberg specifically focuses on the word 'et, which can function either as a direct object marker or as a preposition meaning “with.” For the ancient rabbis, 'et was code for a missing element. And from a contemporary perspective, it seems clear what missing element should be read into this verse: not only is one forbidden to degrade a man sexually, but one is also forbidden to degrade a woman sexually. It’s a clever reading; clearly on the original meaning of the verse, but not entirely out of keeping with it, either. In a way, it’s a natural extension. As Adler writes, “what makes the Torah sacred is not that it has one fixed eternal meaning, but that its meanings are inexhaustible" (p. 1256).

I went on a bit after that about the importance of sexual boundaries in the modern world and the relevance of the topic to Yom Kippur, but this post is long enough already, so I'll leave all that out. What I'm chiefly wondering is, did I take "questioning the fundamentals" too far, consdiering the context? Is this an appropriate approach to text and tradition for a traditional egalitarian community? Should I lay off this topic already?

Next in this series: A d'var torah on Qohelet.

Parsha Backlog

I gave a d'var torah Friday night on parshat kedoshim, but I haven't had a chance to blog on the subject until now. The theme of the d'var torah was competing conceptions of holiness: the holiness of separation, which requires Israelites to separate themselves from other nations by observing commandments that impose divisions on the natural world, and the holiness of justice and compassion, which tends to minimize differences rather than accentuating them.

The idea "holiness through separation" is most clearly expressed in a passage toward the end of kedoshim (Leviticus 20:23-26):

You shall not follow the practices of the nation that I am driving out before you . . . I am Adonai your God, who has set you apart from other peoples. Therefore, you shall set apart the pure beast from the impure, and the impure bird from the pure, and you shall not make yourselves objectionable through the beasts, birds, and all that creeps upon the ground that I have set apart for you as impure. Thus shall you be holy to me, for I, Adonai, am holy, and I have set you apart from other peoples to be Mine.

A number of precepts in the parsha seem directed toward enforcing this type of holiness, e.g. the prohibitions against interbreeding animals and plants and against wearing clothing made from a mixture of materials (19:19); the injunction against sorcery and consultation of spirits, which threatens the divisions between life and death and between human and supernatural (19:31); and the sexual prohibitions (20:10-21), which enforce differentiation between male and female, human and animal, pure and impure, kinship and marriage.

In contrast to these are the precepts that minimize difference, e.g. the injunctions to leave portions of one's produce to the poor (19:9-10) and to treat employees fairly (19:13), thereby reducing disparities in wealth; the injunction against recognizing differences in class when issuing judgement (19:15); and the commandment to "love one's fellow as oneself" (19:18). Perhaps most exemplary of this second type of holiness is the prohibition against oppressing the stranger, which is based on an explicit injunction to identify with the Other (19:33-34):

When a stranger resides with you in your land, you shall not oppress him. The stranger who resides with you shall be like a citizen among you, and you shall love him as yourself, for you were strangers in the land of Egypt.

Both types of holiness can be related to the principle of imitatio dei. The former demands that Israel behave as a unique people, separate from the world, just as God is unique and seperate from the world. The latter demands that human beings follow God's example in recognizing the godliness inherent in others:

As He clothes the naked, so must you clothe the naked. [As] the Holy One, Blessed be He, visited the sick, so must you visit the sick. [As] the Holy One, Blessed Be He, comforted mourners, so must you comfort mourners. [As] the Holy One, Blessed Be He, buried the dead, so must you bury the dead (Sotah 14a).

Is it possible to harmonize these two types of holiness, which so often seem to be in conflict with one another? The suggestion that I made Friday night was that our very struggle to balance these conceptions of holiness can itself be part of the pursuit of holiness. (A bit of a cop-out, but I think the idea has merit.) For this blog, I'm going to add another, somewhat more controversial suggestion, relating specifically to the sexual prohibitions.*

My suggestion is based on the historical observation that, while differentiation has always been a major aspect of Jewish practice, the specific divisions that we make have been fairly fluid. For example, the Torah prescribes an intricate system of differentiation between pure and impure, most aspects of which have fallen into disuse since the destruction of the second Temple. On the other hand, contemporary halakhah prescribes an intricate system for separating meat from dairy, a division that does not exist in the Torah per se. Similarly, while we uphold the Biblical prohibitions against adultery and incest, our framework for understanding them has changed. In the Bible, both the prohibition of adultury (as expressed in Lev. 20:10) and many of the incest prohibitions (as expressed in Lev. 18:7-16) are based on the idea that women "belong" to men, and that sex with another man's wife is akin to trespassing on his property. Today, we tend to view adultury as a violation of a mutual bond between two people, while incest is variously viewed as a violation of trust, an abuse of power, or an inappropriate "mixture" of two types of relationships. This shift, of course, is a result of our changed view of women, which can be regarded as a recognition of the godliness inherent in every human being, male or female.

To my mind (and I'm sure I'm not the first to have suggested this), changing our approach to homosexual relationships would simply be an extension of the shift in our approach to male-female relationships. The imperative of holiness through justice and compassion demands that we lessen our emphasis on the distinction between male and female and re-emphasize the boundaries created through mutual commitment.

*This is partly an attempt to compensate for missing parshat acharei mot, which also catalogues the sexual prohibitions (Lev. 18:6-23).

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?

CJLS Reaffirms Commitment to Ambiguity

In 1992, the Conservative Committee on Jewish Laws and Standards met to discuss the role of gays and lesbians in Jewish communal life. While affirming that homosexuals were welcome in Conservative "youth groups, camps, and schools," the resolution that emerged from the 1992 meeting was largely negative. Gays and lesbians would remain barred from rabbinic and cantoral positions; same-sex weddings and commitment ceremonies would be prohibited; individual rabbis would retain the right to bar gays and lesbians from leadership positions of any sort.

Last week, the CJLS revisited the issue amid much fanfare. A revised resolution was issued, which contained the following decisive statement:

The parameters of sexual conduct for gay and lesbian Jews, their eligibility for admission to rabbinical and cantorial school, and commitment ceremonies remain the subject of a lively debate within the ongoing deliberations of the Committee on Jewish Law and Standards.

At least this time they acknowledged the debate.

The full text of both statements and some responses can be found here and here.

Tazria: The Biblical Purity System

[Note to readers: If you've heard any of this before, please let me know. I'm sure I'm not the first to come up with these ideas.]

The biblical purity system is one of the great enigmas of Israelite religion. It makes sense that the Israelites would want to keep that which is distasteful as far as possible away from the sanctum, and that an elaborate system might arise to ensure that this remained the case. But why should menstrual blood and semen be included among the sources of impurity, while urine, vomit, and mucus are not? Why skin diseases and not diseases of the eyes, for example, or the respiratory system? Why is semen impurity removed by bathing and waiting until evening, while birth impurity requires a waiting period of thirty-three to sixty-six days and a sacrifice, and death impurity requires sprinkling with the ashes of a red heifer?

Many attempts have been made to explain the psychology and/or theology behind the system. One popular interpretation, most thoroughly argued by Jacob Milgrom, is that impurity derives from an association with death, and the Israelite deity is a God of life. A human corpse is thus the source of the most severe type of impurity. Genital discharges represent the loss of potential life, because they were all believed to carry generative seed. Skin diseases, which are visibly degenerative, are closely associated with death, and thus generate impurity. Purification offerings (often translated "sin-offerings") involve the sprinkling of blood on various parts of the sanctuary, because blood is a symbol of life and therefore an appropriate "ritual detergent."

I think that this interpretation has merit, but it also has flaws. First, semen emitted in certain contexts may be best described as a "loss of potential life," but the substance itself is the source of impurity, and the substance itself is a source of life. The association of semen with death is most illogical when it is emitted during intercourse. Childbirth, similarly, causes impurity. Though this impurity seems to be associated with the bleeding that occurs during birth, the association with death still strikes me as a little bit strange. (I've heard it argued that bearing children involves a "partial death" for the mother because a human life is exiting her body, but I find this a bit of a stretch.)

Secondly, it is less than logical that blood issuing from human genitals -- a supposed source of generative seed -- symbolizes "death," while blood from a recently slaughtered animal symbolizes "life." This is the sort of reasoning that results from trying to fit the facts to an already established conclusion.

My own recent thought on the matter is that both the creation of life and its loss are potential sources of impurity as well as purity. These are most powerful forces, and they are rightly within the domain of the deity. Occurring in the natural course of human life, these forces generate impurity, but blood deliberately shed in a cultic context has the power to purify. There may be a connection between this idea and the law forbidding the consumption of blood: both an agent of life and a product of death, blood is not for human beings, but rather, for God.

A few additional thoughts: Most of the biblical purification rituals have a certain practical logic to them. Semen impurity cannot reasonably last more than a day or require a material sacrifice, since this would prevent couples from having sex and result in an undue monetary burden on men. Menstrual impurity, similarly, cannot reasonably require a sacrifice each time it occurs, but it must last longer than a day, since menstruation typically continues for about a week. Seven days is an appropriate duration for such impurity, being both the duration of a normal period and a biblical symbol of completion. Lengthy or irregular bleeding requires a seven-day wait after the bleeding has ceased in order to ensure that it does not begin again. Irregular discharges from both men and women require a sacrifice, which is reasonable, since by definition they occur less often than regular discharges; it is also understandable, given their mysterious and frightening nature and the fact that they may pose a health risk. Discharge of blood after childbirth may last for several days, resulting in a state similar to menstrual impurity. A lesser level of impurity follows, because of the lengthy period of infirmity and discharge that typically accompanies "natural" childbirth. Skin diseases require quarantine because they are contagious; this type of impurity cannot be removed before the patient has healed.

Other aspects of the system are less self-evident. One of these appears at the start of this week's Torah portion, where mothers are instructed to observe 7 + 33 days of impurity after giving birth to a boy, and 14 + 66 days for a girl. Those defending the system often point out that impurity may be rendered by the holiest of entities as well as the most profane, so this law is not necessarily misogynistic. I wonder whether females generate greater impurity because of their close association with the process of birth. This may not be either a "positive" or "negative" characteristic per se, but simply a certain type of power, which must be properly regulated.

Another perplexing law appeared in last week's additional reading, parshat parah. Death impurity can be removed only by waiting seven days and having a mixture of water and the ashes of a completely red (or brown) cow sprinkled on oneself with a willow branch. (This occurs both on the third day and the seventh.) Paradoxically, the priest who burns the cow, the man who does the sprinkling, and anyone who touches the ashes of the cow, become impure. It has been argued (reasonably) that the symbolic value of the completely colored cow is to increase the amount of "blood" in the mixture, this being a particularly severe form of impurity requiring a particularly concentrated form of the purifying substance. I would add that the very scarceness of such ashes increases the awe with which human death is regarded. But why should the ashes play a double role, rendering those with death impurity pure and those without it impure? I think that it is not the ashes themselves, but their association with death impurity that gives them the power to render the pure impure. Any association with the realm of human death, even with the substance that allows an individual to exit that realm, must have some consequence. Tellingly, a priest, who is forbidden contact with the dead, does not even sprinkle the purifying waters. For an individual whose purity is of such great consequence, even burning the cow that will later be used to treat death impurity requires a purification process.

The paradoxical red heifer ritual is the best illustration of the dual nature of blood, with its ability to impart or remove impurity, depending on context.

Galois is Back!

(Actually, it's been back since the beginning of February, but I haven't been keeping up with blogs.)

For those who don't know/ remember, Galois is a blog by Gabriel Rosenberg that deals primarily with the legal and ethical aspects of the same-sex marriage debate in the United States. Gabriel is a mathematician, but he's made some of the best legal arguments I've seen in favor of same-sex marriage. If you are legally minded and interested in this issue, you would probably enjoy Galois, regardless of your personal position.

In Which I Finally Convince the World that I Have Exchanged Judaism for Tiflus

In another venue, I mentioned that I've been idly composing liturgy for a same-sex wedding/commitment ceremony for no one in particular. Andrea asked to see it, at which point I decided that I may as well "come out of the closet" on this issue. Yes, I am a silly, empty-headed liberal Jew with the audacity to make up blessings. Sue me.

Now that that's over with, some background:

A halakhik wedding ceremony consists of two components, ארוסין or קדושין and נשואין. Combined, these procedures change a woman's sexual status from "forbidden to all men" to "permitted to her husband." Of course, this is not the ultimate essence of marriage, but it is its halakhik essence, and that is reflected in the blessing that accompanies ארוסין.

I believe that there are halakhik grounds for permitting sexual relationships between two men or two women, but, short of a rabbinic edict (which is impractical for a variety of reasons), there is no way to effect the sort of status change that takes place in a Jewish heterosexual wedding. Therefore, the terms ארוסין, קדושין, and נשואין are inappropriate in this context, as is the blessing traditionally recited over ארוסין. I see no problem, however, with applying the English terms, "marriage," "wedding," "bride," and "groom," or the Hebrew terms חתן and כלה (groom and bride). These terms are of primarily cultural, rather than halakhik, significance, and the concepts that we associate with them are perfectly applicable to same-sex unions.

I have heard that Rachel Adler, in Engendering Judaism (which I have yet to read), proposes a union ceremony that has the halakhik function of merging two people's property. This seems to me like about the right idea. Ideally, the procedure would involve an exchange of rings, which, in my understanding, it very well could.

The bit that I've been working on (if you can call it "working,") is a version of the "Seven Blessings" (שבע ברכות), which are traditionally recited as part of the נשואין ceremony and at meals througout the following week. My goal was to change as little as possible while ensuring that blessings be appropriate for this new context. Below are the blessings, in Hebrew and English, followed by explanations of the changes. (My translation is heavily influenced by Adler's.)

ברוך אתה ה אלוקינו מלך העולם שהכל ברא לכבודו.

1. Blessed are You, Lord our God, Ruler of the universe, who created everything for your glory.

ברוך אתה ה אלקינו מלך העולם יוצר האדם.

2. Blessed are You, Lord our God, Ruler of the universe, shaper of humanity.

ברוך אתה ה אלקינו מלך העולם אשר יצר את האדם בצלמו, בצלם אלקים ברא אותו, זכר ונקבה ברא אותם. ברוך אתה ה יוצר האדם.

3. Blessed are You, Lord our God, Ruler of the universe, who has shaped human beings in Your image, creating male and female. Blessed are You, Lord, shaper of humainity.

.שוש תשיש ותגל העקרה, בקבוץ בניה לתוכה בשמחה. ברוך אתה ה משמח ציון בבניה.

4. May the barren one exult and be glad as her children are joyfully gathered to her. Blessed are You, Lord, who gladdens Zion with her children.

שמח תשמח רעים האהובים, כשמחך יצירך בגן עדן מקדם. ברוך אתה ה משמח רעים אהובים.

5. Grant great joy to these loving companions as You once gladdened your creations in the Garden of Eden. Blessed are You, Lord, who gladdens loving companions.

ברוך אתה ה אלקינו מלך העולם אשר ברא ששון ושמחה, חתן וכלה, גילה, רינה, דיצה וחדוה, אהבה ואחוה ושלום ורעות. מהרה ה אלקינו ישמע בערי יהודה ובחוצות ירושלים קול ששון וקול שמחה, קול חתן וקול כלה, קול מצהלות חתנים מחפתם
ונערים ממשתה נגינתם. ברוך אתה ה משמח רעים אהובים.

6. Blessed are You, Lord our God, Ruler of the universe, who created joy and gladness, groom and bride, merriment, song, dance and delight, love and harmony, peace and companionship. Lord our God, may there soon be heard in the cities of Judah and in the streets of Jerusalem the voice of joy and the voice of gladness, the voice of the bridegroom and the voice of the bride, the rapturous voices of the wedded from the bridal chambers, and of young people feasting and singing. Blessed are You, Lord, who gladdens loving companions.

ברוך אתה ה אלקינו מלך העולם בורא פרי הגפן.

7. Blessed are You, Lord our God, Ruler of the universe, who creates the fruit of the vine.

Comments:

1. This blessing is unchanged.

2. This blessing is unchanged. Hebrew אדם, like English "man," can be either exclusive or inclusive of females. I've followed Adler in using the translation "humankind."

3. The original blessing is based on Gen. 2:22. It emphasizes the complementary roles of male and female, suggests that woman comes from man, and may also refer to couples' ability to perpetuate God's image through procreation. This version is based on Gen. 1:27. It emphasizes the essential sameness of man and woman and our common divine origin. It also suggests that where the word אדם ("man," or "humankind") occurs in these blessings, it should be understood in a gender-neutral sense.

4. This blessing is unchanged. (While it poses certain theoretical problems in this day and age, they have nothing to do with the gender of the couple, so I've left the blessing alone.)

5. I've replaced "bride and groom" with "loving companions," a reference to the Song of Songs. (The Hebrew literally translates, "beloved companions," but I think this translation conveys the meaning more accurately.) The first occurance of the phrase in the blessing is original. So, yes, I've rendered it redundant. I don't think this is a problem. (Compare the original versions of blessings 3 and 6.)

6. This blessing conveys the hope that Jerusalem will one day be filled with happy brides and grooms. (Again, a bit of a problem, but not particular to this context.) It reflects the language of Jeremiah. I see no reason to alter the terms "bride" and "groom" in this context. However, the end of the original blessing ("who gladdens the bridegroom with the bride") is inappropriate. I've replaced the bridegroom and bride with the "loving companions" of the previous blessing, but I'm not sure I like it. Suggestions?

7. This blessing is unchanged.

Feedback is welcome.

Anti-Semitism and Homophobia

Jason Kuznicki of Positive Liberty has written a thought-provoking post on the parallels between anti-Semitism and homophobia. These thoughts were apparently triggered by Martha Nussbaum's essay on disgust, with which I don't entirely agree, but Jason's comments are, in my view, very reasonable. He focuses, in particular, on the relationship between nineteenth-century attempts to convert Jews and contemporary "conversion therapy" for gays:

In these phenomena, we can see the disastrous results when disgust-as-morality turns inward, upon the self, for many of the most outspoken advocates of both movements have been converts.. . .

The modern drive to "repair" homosexuality is of course different in some ways from its nineteenth-century counterpart, but it shares three main traits with our ancestors' desire, as they termed it, to "regenerate" the Jews:

--Hypothetically, the main argument of these movements may well be true: If Jews or gays successfully converted, they might well be happier. At least some of them.

--Objectively, it is a fantasy. Change in one's sexual orientation does happen from time to time, but engineering it is still a utopian dream. Change in one's religion is probably almost as hard to achieve through human design. People hold religions based on faith, and faith is inscrutable. Conversion does happen on occasion, but planning for it is absurd.

--Morally, they both reek of condescension.

Read the whole thing.

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.

The Velveteen Rabbi returns to the subject of gay marriage, civil and religious. She mentions Virginia's passage of the Marriage Affirmation Act (boo, hiss), and links to a few articles on the Shalom Center website. I'm particularly interested in the ceremony described by Eyal Levinson in this piece. In general I like it, though it could really only work in a Reform context.

Sometimes I think that Conservative Judaism makes less sense than any other denomination. Oddly enough, that's part of the appeal. But it can be frustrating.

In spite of being academically doomed, I can't seem to pull myself away from the Keshet site. I volunteered to give a d'var Torah this shabbat (parshat Acharei Mot), but haven't yet figured out how to make my point in under ten minutes.

By the way, have you heard the one about the Gilgamesh movie? Oh, that was serious...

Protocols' Steven I. Weiss announces the upcoming release of Rabbi Steven Greenberg's book, Wrestling With God and Men. Read the comments.

(Clarification: Steven Greenberg = Yaakov Greenberg = Yaakov Levado)

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.