More Sex and Halacha: Have We Gone Too Far…or Just Far Enough?

To quickly recap: I have been taking an eye-opening class at the Pardes Institute in Jewish Studies given by Dr. Jennie Rosenfeld on how we got to where we are today from a religious law perspective regarding issues of physical contact between men and women. In the first class, Rosenfeld laid out a series of biblical and rabbinical sources that, although Rosenfeld did her best to present them without judgment, at least to me detailed an unhealthy obsession on the part of the rabbis with preventing what they saw as sexual sin. The sources were broad, ranging from the laws of shomer negiah (which stipulate to varying degrees no physical contact at all between unmarried members of the opposite sex) to prohibitions against actually sleeping together, in particular but not exclusively when a woman is menstruating and thereafter until she has immersed in a mikveh (ritual bath).

What disturbed me the most, I wrote in my previous piece, was the realization that what we are seeing playing out in modern Israel, including gender segregation on buses and in health clinics, male soldiers walking out of ceremonies when a woman sings, and a lengthening list of prohibitions to keep adherents from even entertaining forbidden sexual thoughts, turns out to not be a recent phenomenon of excess, as I’d imagined (or hoped), but one that goes back thousands of years. The Talmudic perspective on sex can, in many cases, be relentlessly repressive.

“There must be more creative ways to approach the challenges of modernity than trying to legislate away any form of natural human behavior,” I wrote at the conclusion to the post. “How can we acknowledge what people are doing and feeling and give that room for healthy expression without abandoning the positive principles that have sustained us all these years? Without such moderation, it’s a slippery slope from the stories Rosenfeld presented in the Talmud to spitting on little girls in Beit Shemesh for not dressing in ways considered by some to be appropriate.”

The main criticism I received from people who took the time to read and respond to my piece was that I was simply wrong to judge Talmudic sources by contemporary standards; that the environment and social milieu in which the rabbis were writing was so different from our lives today that it was inappropriate for me to make any kind of comparison. A few people added, with barely concealed scorn, that I didn’t seem learned enough to understand the true meaning of these tales, and that if I had spent a few more years in yeshiva I wouldn’t be so brazen as to take the holy writings out of context.

Were they right, I wondered? Were the times so different, one, two millennia back, to make applying modern sensibilities on sex and relationships a fool’s errand? I called my friend Nachshon Carmi, a Jerusalem-based clinical sexologist and couples counselor, who is both religious and learned on this subject. He said that my detractors actually had a point.

Before the advent of modern, effective and (mostly) reliable contraception, Carmi explained, “sex outside of a proscribed framework could potentially lead to unwanted offspring,” abandoned or uncared for, who might eventually become a burden on the state. Society, therefore, had an interest in ensuring that children had parents who could provide for them. The rabbis of the Talmud were thus acknowledging that normal, healthy individuals are going to have sex, so they created a system of laws that directed that desire into marriage, even if it came at a very early age.

Judaism certainly wasn’t alone in pushing marriage in order to address a socio-economic reality; this was a universal problem in the pre-scientific era. Nor does Jewish Law ignore the emotional benefits to promoting committed pair-bonds. (Halacha mandates that a husband must please his wife sexually, for example.) But, I asked Carmi, in their unique role as formulators of laws that were at once both religiously binding and nation-building for adherents, did the rabbis go too far? Was instituting a series of draconian laws to regulate sexual behavior the only – or even best – way to push hormone-crazed young people into marriage?

Carmi believes the problem is not so much the laws themselves, but to whom they are directed. “Our tradition [regarding the laws on sex] is really oriented towards adolescent boys,” he says. “At that age, teenagers have a very high level of testosterone, but the part of their brain that controls urges is still underdeveloped, only becoming completely set in the late teens and early twenties. So the halacha makes some sense for teenagers. But a man is not the same at ages 15, 45 or 65. Yet the halacha doesn’t change.

In other words, a 45-year-old married father of five, from a purely physiological level, has less testosterone and a more developed frontal lobe (the part of the brain involved with impulse regulation), such that shaking the hand or hearing the singing voice of a woman is not automatically going to turn him into what I’ve described, perhaps too derisively, as a “rapist-in-waiting.” But the halacha treats all ages (at least those post bar mitzvah) the same. That 45-year-old man not only must abide by the same rules, he is encouraged by them to think of himself as a teenager, not a mature adult. Codify that into a stream of laws and you have a recipe for repression.

Marrying young is also not ideal for the mental health of the couple. As Meg Jay points out in her groundbreaking TED Talk on “Why 30 is not the new 20” (go out and watch it now if you haven’t yet), human personality changes the most in our twenties. Getting married too early can lock a couple in before their true direction has a chance to emerge, leading to the potential for deep unexpressed dissatisfaction. Why must the halacha advance an all-or-nothing approach?

So, should Jewish Law differentiate between different stages in life, tacitly if not implicitly? Moreover how should Jewish Law relate to changes brought by contraception? While by no means perfect, does scientific advancement that results in today’s reality, where not every unmarried sexual encounter will necessarily lead to an unwanted child, coupled with irreversible and, yes, cross-denominational changes in attitudes and behaviors towards premarital physical contact (be it sex or just hugging), mandate flexibility in halacha?

Clearly I’m not going to convince the most fervent believers and Rosenfeld, in her course at Pardes, wasn’t planning to climb out on any limbs either. But she did dangle one tantalizing possibility. In the third class of the series, she cited Prof. Tzvi Zohar of Bar Ilan University who in 2006 wrote a contentious article in the academic journal Akdamot which analyzed leading halachic opinions from the Middle Ages until the modern era and suggested that the concept of the pilegesh (or concubine) might be considered a viable alternative.

A pilegesh is essentially a woman in a monogamous relationship but without betrothal and marriage. The pilegesh would hold by the same laws of niddah (ritual impurity) and would go to the mikveh afterward. The Biblical patriarch Abraham had a pilegesh(Ketorah) as did his grandson Jacob (Bilhah). There is debate over whether the pilegesh was ever intended for the masses; the medieval sage the Rambam ruled that the concept was only meant for kings, but this was considered a minority opinion. There is further debate among religious scholars about whether this negates the impropriety of premarital sex entirely or just demotes it from a Torah prohibition to one from the rabbis, which would not carry the extreme punishment of karet (excommunication).

Regardless of intent, Zohar’s position on the pilegesh unleashed a flurry of backlash, with then Chief Rabbi Yona Metzger issuing a blanket prohibition against allowing single women to use the mikveh and instructing ritual bath attendants to go so far as question single women in order to prevent them from doing so (this was reportedly reversed earlier this year following a petition by the Center for Women’s Justice and Kolech Religious Women’s Forum).

Rosenfeld here broke with her approach of not inserting her opinion and suggested that empowering single women to go to the mikveh in order to have sex with their unmarried partners was potentially a positive direction. But she wouldn’t want to see it institutionalized as universal Jewish Law. Better that it be an individual decision, made on a case-by-case basis. She had two main concerns. First, the status of a pilegesh, although kosher, is still inferior to proper marriage. A pilegesh is accorded none of the legal protections that a bride receives through the ketubah (marriage license).

Moreover, a blanket legalization of pilegesh could work against the meta-halachic Jewish value of marriage itself, Rosenfeld said. So, while permitting the pilegesh could provide couples with a Jewish framework for their premarital actions, would such a change, on the macro-level, somehow harm the very values that have kept Judaism vibrant and functioning over thousands of years?

I have another question, though; a more private one: why do I care so much? After all, not only am I married and so not a candidate for a pilegesh arrangement, but in my personal practice, I don’t feel bound by all of Jewish Law. So why am I going to a class about “Sex and halacha” in the first place? Why am I spending so much time trying to understand brain function, testosterone and teenagers?

The truth is, despite what I do or don’t do personally, I have tremendous regard for tradition. (Surprise: my wife and I have kept the laws of mikveh for all of our 25 years of marriage and it’s been a significant and beautiful part of our relationship.) So, it’s important for me, for the Jewish people and for State of Israel that we prod Judaism in the direction of relevancy for the times, while not relegating the past and the enormous amount of wisdom we’ve amassed into the dustbin of “what they do.”

Understanding where the Jewish laws we honor, fight or find extraneous come from, and using that insight to develop creative approaches – such as the pilegesh for some, or not getting in a halachic huff when a little girl doesn’t dress exactly as modestly as some might like – is exactly what we should be doing. That’s why I appreciate Rosenfeld’s willingness to speak openly about uncomfortable subjects. I don’t have any illusions that these kinds of changes will come easily or ever become universal, nor that the authorities who could poskin (rule) differently are not simply dismissing this piece, if they’re reading it at all. Still, I unabashedly disagree with my detractors who challenged my depth of learning. We all have a part to play in this emerging drama, and the conversation – like Judaism itself – belongs to the people not just its leaders.

This post appeared originally on The Jerusalem Post website.