In the days since the rulings of the United States Supreme Court on the Defense of Marriage Act and California’s Proposition 8, there has been a lot of hand-wringing as to what Judaism has to say about the issue. Despite what Minnesota Rep. Michele Bachmann may think, the Bible, what Christians call the Old Testament and what Jews call the Written Torah, can hardly be read as defining traditional marriage as between one man and one woman. After all, the favorite verses of those who attack same-sex relationships, Leviticus 18:22 and 20:13, mention men only, leaving our lesbian sisters (you know, like Edith Windsor, the widow who challenged DOMA) out in the cold. Moreover, the whole passage is about sex, not marriage, an issue which was settled a decade ago. What authentic Jewish source talks about gay marriage anyway?
This brings us to a source cited by Rabbi Micha Berger of the Aspaqlaria blog. Lev. 18:3 commands the Israelites to shun the practices of both Egypt, where they were born, and Canaan, where they are headed, then concludes “And you shall not walk in their ordinances.” What does this mean? The Sifra (ad loc.) writes:
One might think that one may not construct buildings or cultivate plants as they do, so the verse says, “And you shall not walk in their ordinances” — I have only said this regarding the ordinances ordained for them, their parents and their grandparents. What would they do? A man would marry a man, a woman would marry a woman, a man would marry a woman and her daughter, and a woman would be married to two men.
There it is, black on white: not just gay men, but lesbians too; not just sex, but marriage as well. And this is not just midrash, exegesis; it is the Sifra, the volume of halakhic midrash for Leviticus. And everything in halakhic midrash is halakhic, right? As in legally binding? And we’re talking about what the Egyptians were doing wrong, so it applies so to non-Jews as well, to all the children of Noah, right?
Ay, there’s the rub. You see, halakhic midrash is NOT halakha. There are many opinions recorded in it, some of which are accepted and some of which are rejected. This formulation falls in the category of the rejected, because the Talmud in Sanhedrin 58a, as codified by Maimonides (Laws of Kings 9:5), actually allows a non-Jew to marry his wife’s daughter, even though a Jew may not do so, even after divorcing his wife.
R. Berger explains:
Again, even according to the Torah, the ban on homosexuality is Noachide, and was part of human morality before it was included in the Sinai Covenant… The question isn’t whether halakhah forbids it, or even (which is what we’re arguing here) the Torah testifies that natural law forbids it. (That the Egyptians who did contract gay marriage are held accountable because they should have known better.) The question is whether US law is in the business of enforcing morality.
R. Berger decides that morality is not the province of US law. However, I must dispute his formulation of “natural law” or “human morality” which the Torah only “testifies to” or has “included.” Who decides what makes the cut? If we use Leviticus 18-20 as the template, how do we deal with the fact that there are sixteen forbidden relationships listed, only six of which are forbidden for Noahides as well? If these are all universal, and the Egyptians are held “accountable” for them, why do they get to stay in their land? Why does this concept get nary a mention in the Book of Exodus? What of all the great people born from relationships banned in Leviticus 18-20, including Moses and David? What of all the people involved in such relationships, including 3 out of 4 matriarchs and 2 out of 3 patriarchs? (Isaac and Rebecca, of course, were just first cousins once removed, which is fine; almost two dozen states don’t even care about the “removed” part.) Are all Jews “natural” or “moral” bastards, born out of incestuous unions?
Let’s take just one example from this list of moral/ natural laws: “You shall not uncover the nakedness of your brother’s wife: it is your brother’s nakedness” (v. 16). Pretty straightforward, right? Universal, moral, natural. Yet there is a mitzva of yibbum, of levirate marriage, already embraced in the Book of Genesis–and ultimately carried out not by the brother-in-law, but the father-in-law, another forbidden relation. His name is Judah, and there’s a whole people named after him now. Is that unnatural?
The greatest strength of Judaism is that we have a morality ensconced in law: knowable law, revealed law, debated law. This law grapples with the changing reality every day. Undermining it in a search for something beyond is a fool’s errand.