Sanhedrin 093

I do not recall a topic discussed on RMSG that has produced so much in my mailbox as our present discussion on homosexuality. The most interesting aspect of the phenomenon is that none of the writers seems to have a need to express an opinion, but all ask for clarification on one point or another. I cannot possibly answer all this mail personally, nor can I utilize it all as part of our discussion. Therefore, I shall continue my rather elaborate response to Ron Kaminsky's original question – see last shiur – and I hope that most people will find in my response some of the clarifications they are seeking. I shall, however, bring before you some of the tangential issues raised in several of these posts.

Ron had raised the question of our present-day attitude to the fact that certain offences, such as homosexuality, are considered capital crimes by Torah law. In my response so far I had mentioned that

I then presented one example of how the sages made the institution of Takkanah serve their purposes. I then continued:

We can now continue our discussion.

Another method used, as we have noted, was re-interpretation of a Torah text in order to ameliorate or obviate a problematic Torah requirement. In order not to make this response overly long I shall not bring any more examples of this methodology, but instead I shall try to show how it could be used even today for the purposes of arriving at a new understanding of what the Torah demands in the case of male homosexuality. (As Ron noted in his original message, female homosexuality is a different halakhic category and is not considered a capital offence.) This response is didactic: that means that it is my purpose to try and teach by illustration a certain methodology; everything is theory, nothing should be understood as a halakhic decision.

Seemingly, the Torah is quite adamant about male homosexuality. In two verses in Leviticus it makes categorical statements:

Some of the terms used in these verses are not as clear in the Hebrew as they appear to be in their English rendition. However, I am not going to expatiate on these difficulties since they are not germane to my present purpose. However, one term which seems to be perfectly clear presents a difficulty to the sages, and that word is the one I have rendered as "atrocity".

The Gemara [Nedarim 51a] brings the following discussion between Shim'on bar-Kappara and Rabbi [Judah, the president of the Sanhedrin]. (A reminder: Rabbi was one of the greatest of the sages of all time, and he is the editor of the Mishnah that we are studying. The Mishnah was published at the very beginning of the third century CE.) The scene is at the wedding celebration of one of Rabbi's sons. During the celebration the two sages, who were also very good friends, got to discussing Torah. Bar-Kappara asked Rabbi how he understood the word To'evah, "atrocity". (I shall return later to my guess as to why Bar-Kappara suddenly referred to this word: the continuation of the passage makes it quite clear that the question was asked in the context of Leviticus 18.)

It is quite clear from the Hebrew original that Bar-Kappara's interpretation is a play on words, since the Hebrew phrase that I have translated "You go astray in respect of her" sounds like the Hebrew term To'evah, 'atrocity'. But what does Bar-Kappara mean? Rashi [Rabbi Shelomo Yitzĥaki, Western Europe 11th century CE] gives an explanation that does not seem to make any sense in the context: "'You go astray' in that you forsake your legal spouse and take this [female] prostitute instead" – unless his words should be understood (somewhat forcedly) as "that you forsake your legal spouse and take this road of fornication instead". The Tosafists [a school of West European sages that was active during more than 200 years from about 1150 to about 1350 CE] are much clearer: "'You go astray' – in that you forsake your wife for male homosexuality". Their words are repeated verbatim by the Rosh [Rabbi Asher ben-Yeĥiel, Germany and Spain, 1250-1327 CE]. Ran [Rabbi Nissim Gerondi, Spain, 14th century CE] also understands Bar-Kappara as forsaking a spouse for male homosexuality.

What is interesting about all these interpretations of the words of Bar-Kappara is that they understand him to be referring to a man married to a woman. I suspect that they were influenced in this by another aspect of the original account in the Gemara (which might also explain why Bar-Kappara asked Rabbi about this Biblical term in particular during the wedding feast). The Gemara tells us that Rabbi, himself a millionaire, had married off his daughter to another millionaire. His son-in-law, Ben-El'assa, seems to have been an effeminate fop, who spent an enormous sum of money on a special hair-do. Ben-El'assa was party to this conversation between Rabbi and Bar-Kappara, and it made him so angry that he left the celebration in a huff, dragging his wife in his wake. Surely, it does not require too great a stretch of imagination to see that Bar-Kappara deliberately asked his friend to explain this term in order to gently berate him at having married off his daughter to money in an unhappy marriage because her husband had obvious preferences.

Be all this as it may, one thing is clear. And that is that Bar-Kappara, Rashi, the Tosafists, the Rosh and the Ran all see that the "You" of the Biblical verse [You shall not lie with a male as with a women: it is an atrocity] as referring to a man married to a woman. Here is the means by which latter-day sages could (if they wished to) remove most forms of male homosexuality from the list of capital crimes. It has all the outer forms used by the Tannaïm: most important of all, it leaves the text of the Torah untouched and unchanged and still valid. It simply restricts in drastic manner the possible application of the text. This is a maneuver that we have seen practiced many a time and oft – and we shall see it practiced again and again in the near future as regards other aspects of our present mishnah.

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As part of my response to Ron Kaminsky in our last shiur I described, incidentally, the use of the principle, which states that any Bet Din has the right to confiscate a person's property [Hefker Bet Din Hefker]. Thus all they were doing, says the Gemara, is confiscating retroactively the object with which the man effected the original Kiddushin… If the man didn't own the object (a ring, for example) with which he effected Kiddushin the marriage was never a valid one in the first place, and the woman does not have to be divorced at all!

In a most perspicacious question Marc Auslander asks: Why is the same technique not used to solve the problem of Agunah?

I respond:

It is just this principle which is used by the Conservative Rabbinate in the United States today for the specific purpose mentioned by Marc. The process is termed Hafka'at Kiddushin in Hebrew. It is frowned upon by the orthodox rabbinate even though it is specifically authorized in the Gemara and by the Tosafists.