With all that has been said about the Supreme Court’s decision that the Fourteenth Amendment guarantees a right to same-sex marriage, one distinctly Jewish angle on the issue has not yet, to my knowledge, been brought to bear.
I share it here because, aside from its interest for those who find traditional sources authoritative, it offers an implicit response to two common statements by proponents of such marriage. The talk — which I have heard from observant Jews as well as others — of being on “the right side of history,” and/or the claim that new insight should shape a different response to homosexuality today seems to me to ignore two early texts.
Those sources suggest that the Talmud already envisioned societies dealing with homosexuality and same-sex marriage the way that Western countries are today, giving the lie to the idea that we all of a sudden are finding new reason to be on “the right side of history.” As I review them here, I don’t believe it will change anyone’s mind on the underlying question, but I do hope it will put to rest these two tropes, at least among traditional Jews.
Not Writing Marriage Documents
The first source, less legally binding than the next one, does make clear that the Talmud was familiar with the push for the normalization of homosexuality. On Chullin 92a, Ulla speaks of thirty commandments non-Jews accepted upon themselves, of which they kept only three. One of those was not writing a ketubbah, a marriage contract, when men married men. Rashi explains that for all that they engaged in homosexuality, with long-term monogamous partners, they didn’t disregard the morality they had accepted so much as to formalize it with a ketubbah.
Granted that it has no halachic import, it shows that both the Gemara and Rashi understood that those involved in a homosexual relationship could see it as serious and important enough to want to formalize it with the same documentation used for heterosexual marriage. For the Talmud, the reason they didn’t was out of respect for what we might call the traditional view of marriage, not because of any rejection of homosexuality. People can choose a different path today, but this text says that they cannot claim this is a completely new conversation.
Egypt and Canaan
The second comment of this type comes in Sifra to Vayikra 18;3, where the Torah precedes the list of arayot, prohibited sexual relationships (among them, male homosexuality), by warning us against acting as did the Egyptians and Canaanites. Sifra Acharei Mot 8 makes two important comments. In paragraph 3, the Midrash infers that the verse is telling us the Egyptians were the most depraved nation, the Egyptians among whom the Jews lived the most depraved of those.
Five paragraphs later, Sifra tells us what they did to qualify for this appellation; a man would marry a man, a woman a woman, or a woman would marry two men. This identifies a Biblical prohibition on lesbianism, as Rambam notes in Hilchot Issurei Bi’ah 21;8, showing that he took this source to be halachically authoritative. Rambam mentions this Sifra in Prohibition 353 of his Sefer haMitzvot as well, without demurral from Ramban, as does Sefer haChinuch 188.
I am less interested in the historical claim about Egypt than Sifra’s awareness of marriage as an option for homosexuals. While Sifra saw it as immoral, it understood Egyptian culture to have accepted it — note, it’s not that Egyptian culture looked the other way, it was ma’aseh Eretz Mitzrayim¸ the acts of the land of Egypt, a fixed part of Egyptian culture. When thinking of one of the most advanced societies of an earlier time, Sifra imagined them to have decided that same-sex marriage (and polyandry, perhaps next on Western agendas) was acceptable and appropriate.
I am, I repeat, not quoting Sifra to sway your view of the underlying issues — those who are willing to submit to the Torah’s view of the world would have adopted its opposition to all acts of homosexuality, including same-sex marriage, without this Sifra. I am quoting it because it is another example of the truth of Kohelet’s words, ein chadash tachat hashemesh, there’s nothing new under the sun. The Torah didn’t prohibit homosexuality because that was the reigning ethos of the time, one that we should reconsider as times change. Nor did it reject same-sex marriage because of the limitations on its understanding of the nature of homosexuality.
This has always been a form of sexuality to which some human beings feel drawn, going into and out of fashion. The Torah told all humans not to engage in it, and the Oral Tradition made clear that that wasn’t out of a failure to understand it.
Be for it or against, just don’t say it’s new. And, unless you know how history will turn out in ten years, fifty years, or a hundred years (let alone the 210 years the Jews were in Egypt), don’t say you know you’re on the right side of history.
Addendum: Don’t Think It’s So Bad Living in Egypt
Those who enjoy living in Western countries might object that it’s nowhere near as bad as Egypt. They forget that the Jews of the desert (and Chazal) didn’t see Egypt as so bad. As Rashi reminds us, Chazal thought at least four-fifths of the Jewish people never made it out, Rashi thinks because they didn’t want to go.
Living in Egypt was enjoyable. Even once they left, when the Jews met times of crisis (such as Bamidbar 11;5), they thought of heading back to Egypt, not the reaction we expect for those who have fled a gulag or concentration camp. However the slavery worked, it was not so terrible — in Chazal’s view — that the Jews were clear that they had to flee Egypt, never to return.
Nor did observance have to suffer. For all that most Jews assimilated, tradition has it that the Levi’im never worshipped idolatry (see Rambam’s Laws of Idolatry 1;3) and retained their connection to tradition’s practices, such as circumcision (see Laws of Prohibited Relations 13;2) and some hold that they spent their time in Torah study. In a remarkable comment, Rambam (Laws of Kings 9;1) says that Amram, Moshe’s father, was given some new commandments while in Egypt. Rashi points out that Aharon served as the people’s prophet in Egypt before Moshe returned.
Finally, the Torah felt it necessary to warn us against moving back to Egypt (see Devarim 17;16). There are many caveats to that, which would take us too far afield, but if Egypt was the worst experience we could imagine, there would be no need to warn us against going back.
Egypt for Jews wasn’t so bad. There were observant Jews along with nonobservant, prophets guiding those ready to listen, and material life was good enough that most Jews wanted to stay. Sure, there was much to find upsetting — Jews were assimilating (so much so that Rashi and Chazal imagine that Jews might have spent the first Seder night in the home of an Egyptian!) and labor was hard (perhaps the high standard of living meant Jews had to work tirelessly to support a Jewish family).
That didn’t mean it was a bad place to live. If you can ignore the negative effects a society is having on you, and see all the goods it provides, you might see it as a place to stay. As did the Jews in Egypt.
Welcome to Egypt.