So, when you say “No sex during Niddah,” what do you mean, exactly?

Are there ethical concepts, such as “human dignity,” that also function as legal concepts in the realm of Jewish law, and as such, can become factors in making halakhic decisions?

This debate lies at the heart of different streams of Orthodoxy, but has its roots in the Talmud,* which has an argument about whether “human dignity” can override a negative Torah law. The example given is if one realizes one is wearing a clothes forbidden by the Torah in public, must one strip, or can one stay clothed and maintain one’s dignity? Although the argument is unresolved, there are Orthodox rabbinic opinions that in certain circumstances, human dignity may override biblical commandments.**

A similar concept is “ways of peace,” a reference to the Jewish Diaspora’s need to maintain cordial relations with their non-Jewish neighbors. Often, the Talmud will say that a halacha should be x, but is in fact y, “because of ways of peace.”

An additional important concept — extremely pertinent to niddah — is that of “household peace.” God is seen violating two biblical commandments in order to preserve “household peace”: the commandment not to erase God’s name, which is violated during the Sotah ceremony that restores peace between husband and wife, and the commandment not to lie, which God violates when He tells Abraham that Sarah called herself too old to have children, when in fact, she had said that it was Abraham who was too old.

A recent “Joy of Text” podcast with Rabbi Dov Linzer suggests the possibility of loosening some of the “harchakot” — the series of prohibitions meant to prevent husband and wife from engaging in any kind of sexual contact — in cases where “household peace” requires it — but only on a case-by-case basis, once you’ve asked your local Orthodox rabbi.******

The problem is, that once you acknowledge that some of the harchakot of niddah are not written in Torah stone, but are in fact, rabbinic enactments that can be flexible in certain circumstances, you have to answer why you think that this flexibility must be reserved for couples who find the mitzvah so difficult to keep that they come to the rabbi looking for a last resort.

It would be quite easy to formulate a halachic ruling saying that if niddah is impinging on household peace for a couple, they may be lenient with certain harchakot that do not relate to sexual touching, such as passing objects between each other, or maybe even the casual touch of a high five — and to leave it up to the couples to define what “impinging on household peace” means. It would also be easy to say that, given today’s realities, we can assume that niddah practices almost always impinge on “household peace” and therefore that leniency should be applied to everyone. Making halachic decisions based on the social-sexual norms of the day is a tradition going back to the Talmud, which made rulings related to a woman’s presumed virginity based on social trends in different parts of Israel, and about which days one might get married on based on how normal it was for women to bleed when having sex for the first time.

Assuming that niddah is a “chok” — a mitzvah with no inherent value other than that, by doing something that makes no sense to us because God told us to, we demonstrate our acceptance of God’s authority — there is no value in being especially strict with it. Once I fulfill the law, I fulfill the law. By definition, adding prohibitions that God did not command does not prove that I accept the authority of God’s commandments. So the minute we acknowledge that some of the harchakot are stringencies, the onus is on us to prove why those stringencies are necessary, as opposed to vice versa — especially if “household peace” and “human dignity,” which we know are both concepts valued by God — are at stake.

There are streams of Orthodoxy whose raison d’etre is to prevent ethical considerations such as “household peace” and “human dignity” from acting as halachic considerations — contrary to centuries of halachic tradition dating back to the Talmud. According to Open Orthodoxy, what sets it apart is its willingness to use such concepts as primary factors when adjudicating Jewish law. That’s why partnership minyans can base themselves on a talmudic opinion, using legal reasoning that puts “human dignity” front and center. Yet, when it comes to the policing of people’s bodies inherent in niddah law — surely a much greater human dignity violation — Open Orthodoxy stays oddly silent.

In seeking an answer, how can we overlook the fact that — even in Open Orthodox society — niddah is largely seen as a woman’s mitzvah, taught in “bride classes,” even though it will be, in fact, observed by both the bride and the groom? Can it be that, a system in which, for 2,000 years, men have been making the rules, and in which, for the most part, it is still men who make the rules, is less attuned to what it perceives as the needs of women? (It’s also possible that the need for leniency is felt more by women, who are socialized to see themselves as primarily responsible for their household’s observance of niddah, as well as to police their own bodies in order to maintain their homes’ “family purity”.) Perhaps, even Open Orthodoxy is not immune to the centuries of sexism ingrained in Western society.

Of course, the counter-argument is that because violating niddah carries the punishment of karet, the ultimate punishment, we must be more careful when it comes to this set of commandments — either because we want to save people from such a horrible punishment, or because we believe that the prescription of karet is a way for God to signal that niddah is extremely important. The problem with this argument, is that the Shulchan Aruch says not to be “light-headed” with one’s wife when she is in niddah, yet, in Open Orthodoxy, not only has this law fallen by the wayside, but it is commonly preached that niddah must be a time when one work’s on one’s emotional connection with one’s spouse, and goes out of one’s way to be emotionally affectionate, so that they don’t feel unloved for two weeks a month. That is, Open Orthodoxy teaches the exact opposite of the Shulchan Aruch in this regard, in order to maintain spousal affection — i.e., “household peace.” Why is one prohibition violable, while the others are not? Perhaps for some couples, witty banter is more likely to lead to sex than a handshake.

Furthermore, as it becomes more openly acknowledged that many Modern Orthodox couples do not keep all of the harchakot as currently taught, it might be wise to draw more realistic boundaries in order to prevent couples from feeling that once they violated part of the mitzvah, they might as well go all the way. If niddah is important because it is a karet prohibition, changing some of the rabbinic enactments in order to prevent couples from violating the Torah prohibition is imperative, according to the halachic principle “Et laasot laHashem, hefiru Toratecha” — there are times when one must abrogate the part to protect the whole.

I would like to end with two examples of human dignity, brought by Rabbi Eliezer Berkovitz that are cited by Rabbi Daniel Sperber*** of human dignity overriding biblical commandments.

It was commonly understood that the Torah’s words in Leviticus chapter 9 commanded a woman in niddah to dress plainly, until Rabbi Akiva ruled that the Torah could not mean that, because that would make a woman unattractive to her husband, and explained the Torah’s words as referring to something else.
Washing one’s face on Yom Kippur is a Torah prohibition, but a new bride may wash her face, also, that she may remain attractive to her new spouse.

I accept that not all Orthodox communities accept Rabbi Daniel Sperber’s arguments.

My question is why those who base their prayer rituals around his philosophy don’t apply that reasoning to niddah, whose impact on the lives of observant married people**** cuts to the core of their relationship and their existence as sexual beings:

If sexism’s not the reason, then what is?*****

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*Brachot19b

**See Rabbi Daniel Sperber, “The Way of the Halakha”, or this article by Tzohar.

***The Way of Halakha, p. 77

****Straight people. Halakha tends to work off of a heteronormative paradigm — and to speak about that would require a separate blog post.

******I do not know Rabbi Dov Linzer and always want to leave open the possibility I misunderstood the podcast, but that was my take-away from it.