Originally published in The Jewish Chronicle.
I am confused by the report of the Israeli court case about the marriage of a Cohen with a divorced woman. Could you please explain the issues involved?
Leviticus 21, 7, reads: “They (i.e. Cohanim) shall not take a woman that is a harlot, or profaned, neither shall they take a woman put away (i.e., divorced) from her husband; for he (the Cohen) is holy unto his God.” This is the basis of the restrictions placed by the rabbis on whom a Cohen may marry. Clearly Orthodox Jewish law forbids a Cohen to marry a divorced woman. But the Mishna (Kiddushin 3, 12) lays down that if a Cohen does marry a divorced woman he is not allowed to live with her, but the marriage is a valid one and the children of such a marriage are not illegitimate (unlike such unions as those involving incest or bigamy, which are invalid ab initio), and the woman needs a divorce before she can ran remarry. In the case reported, the Beth Din argues that the marriage ceremony performed in the presence if witnesses who are acknowledged transgressors of the laws of Judaism and therefore unfit to act as witnesses to a religious marriage ceremony. But the disqualification of witnesses is a complex matter, and extremely difficult to determine, particularly where as here the validity of a marriage is put in question. I have no doubt that the Beth Din would not permit the woman to remarry without first obtaining a divorce from the man she now lives with.
14 August 1970:
Is it correct for Orthodox Jewish couples to have their bedroom furnished with a one-piece double bed only?
According to Orthodox Jewish law there must be no physical contact between husband and wife during the “separation” (niddah) period so that they are certainly not allowed to sleep in the same bed. Herman Wouk (This Is My God, page 156) puts it succinctly: “Jewish married couples follow an old rule of alternating abstinence and enjoyment. During twelve days after the menses begin—or seven days after they cease, whichever period is longer—wife and husband sleep apart. For this reason twin beds have existed in Jewish homes as long as the religion itself. The main practical result of this is that they rejoin at the time when the wife is most likely to conceive. It is the exact opposite of the rhythm system of birth control. For couples who love each other the separation is a hardship, perhaps the one real hardship in the Hebrew disciplines.”
16 October 1970:
Can an illegitimate person marry in synagogue?
Strictly speaking Jewish law does not know of the concept of illegitimacy. The child of an adulterous or incestuous union is a mamzer, “bastard” (see Deuteronomy 23, 3, and Mishnah Kiddushin 3, 12) and he may not marry an ordinary Jewish girl but he may marry (in synagogue) a girl with the same status as himself. Reform Jews do not consider the rules about the mamzer to be binding and so permit the marriage in synagogue in every case. A child born out of wedlock is not, incidentally, a mamzer if the union is neither adulterous nor incestuous and so may marry in synagogue even according to Orthodox practice. With general reference to the question of the mamzer the statement of the Mishnah (Horayot 3, 8) cries out for quotation. Here it is stated that the mamzer who is a scholar takes precedence over a High Priest who is ignorant of the Torah!
6 November 1970:
I am told that a Jew may not marry his brother’s divorced wife, although this is permitted under English law. Is this correct? Is the child of such a marriage considered illegitimate under Jewish law?
It is forbidden in Jewish law for a man to marry his brother’s wife (see Leviticus 18, 16, and 20, 21). This applies even if the brother had divorced his wife (Yevamot 54b) or had died, unless he had died without issue (see Deuteronomy 25, 5-10). Such a marriage has no validity whatsoever in Jewish law and the child born of the union is illegitimate (Mishnah Kiddushin 3, 12).
8 January 1971:
Homosexual relations between consenting males may be legalised in Israel if a Bill tabled in the Knesset is passed. What has Judaism to say on the subject?
There is no question whatever that homosexual practices are strictly forbidden according to the Jewish religion. “Thou shalt not lie with mankind, as with womankind; it is an abomination” (Leviticus 18, 22, see also Leviticus 20, 13). When the second-century teacher, Rabbi Judah, ruled that two unmarried men should not sleep under the same cloak, the Sages retorted that this is permitted because no Jew is suspected of having homosexual relations (Mishna Kiddushin 4, 14 and Gemara).
According to the rabbis (Shabbat 149b) Nebuchadnezzar was a sodomite. (This term is not used by the rabbis but is derived from the conduct of the men of Sodom as described in Genesis 19, 5. For the rabbis, the sin of Sodom was its lack of compassion for the poor and its unjust laws, see Ezekiel 16, 49-50).
The rabbis say further that even the heathens who do practise sodomy are not so brazen as to write a “marriage” deed for the purpose, i.e., they refuse to give any kind of formal recognition if two males live together in this way (Hullin 92b).
Lesbianism, on the other hand is not mentioned anywhere in the Bible. On the verse: “After the doings of the land of Egypt, wherein ye dwelt, shall ye not do; and after the doings of the land of Canaan, whither I bring you, shall ye not do; neither shall ye walk in their statutes” (Leviticus 18, 3) the rabbis (Sifra to this verse) comment: “What did they (the Egyptians and the Canaanites) do? A man used to marry a man and a woman a woman.”
The third-century teacher R. Huna ruled that a woman who indulges in Lesbian practices is, like a harlot, disqualified from marrying a cohen (Shabbat 65a-b). Maimonides (Issure Biah 21, 8) rules that such practices are forbidden but that a woman who was guilty of them would not have to leave her husband (as she would have to if she committed adultery). He also states that a man should not allow women known to be addicted to Lesbianism to frequent his home.
The attitude of the Jewish religion is, then, clear and unambiguous: homosexual relations are sinful. Whether it follows from this that religious Jews should wish homosexual activities between consenting adults to be banned by law, to be a crime as well as a sin, is far less clear. It can be argued, and the argument seems convincing to me though not, perhaps, to some rabbis, that in a modern, secular and democratic State the freedom of the individual to do as he pleases should be inviolate unless it interferes with the freedom of others.