Let us imagine for a moment a scene in a Jerusalem café: A concerned parent confers with a rabbi, expert in the Jewish laws of Hoshen Mishpat, worried about his teenage son, who has embarked on a career of crime. The parent feels that he cannot stop his son from stealing and looks to the rabbi for advice on how to mitigate the legal severity of his child’s actions. The rabbi suggests that he instruct his son to focus on what is called “theft from a gentile through subterfuge” which some authorities feel may actually be a permitted type of thievery.
Now, while every analogy does limp, I do feel that part of what is problematic in Dr. Ner-David’s approach towards encouraging the use of mikvah by single, sexually active women (as discussed in her recent op-ed) is similar to the unease many may feel when they reflect upon the above scenario. Basically, Ner-David seems to invoke a calculus of weighting a strict Torah prohibition against relations with an impure woman versus a mere Rabbinic injunction aimed at discouraging premarital relations. (She does not mention another Biblical prohibition against random sexual activity for both men and women from Deuteronomy 23:18—but that can easily be subsumed into the same manner of legalistic argument).
I feel, though, that this type of calculus confuses a Western legal discourse based on rights with a traditional Jewish focus on obligations. By this I do not mean to say that it may not very well be within the rights of any taxpaying citizen to make use of publically funded mikvahot (or other ritually-designated property) as they may see fit. (Although, I wonder what we would think of their use, even by loyal Israeli IDF-serving citizens, for Christian baptism, for example). Rather, the legal approach suggested here points to an attitude similar to that in the hypothetical scenario: an attitude which views one’s relation to the Torah’s commandments more like that of an individual’s relation to the tax-code and less like that of someone looking to connect to her Creator by following, to the best of her ability, the divinely revealed Covenant. In the first approach, one seeks to minimize exposure to punishment, asking essentially, “What can I get away with?” While in the second, one is essentially concerned with finding out what it is that the Law requires of me if I desire to serve God.
The discussion of love, sex and marriage should never be one focused on avoiding punishment, but rather on encouraging the most intimate type of connection possible. Generations of rabbis have grappled with the pull of the libido—the Talmud is full of the frankest discussions about this most human of struggles: sexuality. One of the most basic of premises, found already in the biblical prophet Hoshea, is that human sexual union is reflective of the union between our nation and our God. In each, we strive for a unique measure of commitment—separating ourselves and our beloved as unique partners, bound one to the other through a holy covenant: kiddushin reflective of kedushah. And just as idolatry is the flirtation with, and even consummation of, a less-than truly committed relationship with the Divine, so too does succumbing to the sometimes overwhelming mix of all-too-human urges before the commitment that marriage entails, reflect a less than ideal approach to the search for true union with one’s beloved.
Do we always succeed in our search for true intimacy? Of course not. But, as Professor Shalom Rosenberg, one of Israel’s leading intellectuals, once suggested to me, all that divides the ‘religious’ from the ‘non-religious’ is the capability to sin. For as long as one’s goals are set at doing the right and the good, one can acknowledge one’s failures as that—a failure to live up to what one should be doing. Then one can, and should, try again. But once that failure receives the imprimatur of “rabbinic” sanction (in the way I believe that looking to lessen the legal severity of uncommitted sex does by encouraging the use of mikvah), then the powerful notion of sin, of missing the mark, is cast to the wayside. This is a pity. And ultimately, a disservice to those not mature enough to see their sexual partners as precious enough to warrant more of a commitment than a desire to find some halakhic wiggle room aimed at punishment avoidance.