Of Pearls and Fish: An Analysis of Jewish Legal Texts on Sexuality and Their Significance for Contemporary American Jewish Movements


OF PEARLS AND FISH: AN ANALYSIS OF
JEWISH LEGAL TEXTS ON SEXUALITY AND
THEIR SIGNIFICANCE FOR CONTEMPORARY
AMERICAN JEWISH MOVEMENTS

RACHEL SARA ROSENTHAL*

Analyzing halakhic texts provides insights into the past and present
regulation of sexuality under Halakhah.1 This Article argues that halakhic
conceptions of sexuality in Jewish texts, which promote the expression of
heterosexual desire through marriage, form the basis of modem strategic
readings of sacred texts that disenfranchise women in the process of divorce
and reject homosexuality as a permissible sexual identity. Located in the
family,2 where struggles between authority and the expression of sexuality
commonly occur, these two issues illustrate how changes in American
social norms may, or should, affect the interpretations and implementation
of Halakhah by the rabbinical authorities of the modem Jewish movements.

Because Orthodox, Reform, Conservative, and Reconstructionist
Judaism each approach Jewish texts and traditions differently, however,
their decisions are tempered by their varying theological assumptions about
the divine authority of sacred works. Nonetheless, each movement's
approach to sexuality has practical effects on the lives of American Jews
who follow Halakhah. Consequently, Part II analyzes halakhic texts from
past and present rabbinical perspectives that exemplify the laws regulating
sexuality, focusing on the rabbinic preference for heterosexual desire as
properly expressed in marriage. This Article examines the underlying

* Candidate for J.D., Columbia Law School, 2006; B.A., Duke University. I would
like to thank Professors Eric Meyers, Carol Meyers, Jean Fox O'Barr, and Eric Zakim for
their support. All errors, of course, are attributable only to me.

1 This Article employs the term Halakhah, that is, the Hebrew word for Jewish law,
to signify the corpus of Jewish texts that introduces and expands laws rather than those
works that engage in exegesis of certain sacred texts. The plural of Halakhah is Halakhot and
the adjective is halakhic. In this Article, halakhic is generally equivalent to sacred because
many Jewish movements consider Jewish legal texts to have some relationship to God and to
holiness, although the degree differs substantially.

2 Of course, the effects of power dynamics in the family depend on the individuals

involved; within the family unit, the woman may in fact have more influence. This Article,
however, looks at Jewish legal positions, that is, the "official" regulations that do not reflect
reality in every family.



Columbia Journal of Gender and Law

normative assumptions of differences between men's and women's
sexuality. In this context, the discussion of heterosexuality also addresses
the modem Jewish attitudes regarding the purpose of marriage between a
man and a woman from traditional and liberal perspectives.

Parts III and IV explore the influence of halakhic conceptions of
sexuality on divorce and homosexuality. These issues have been chosen
because they are matters regulated by Jewish legal institutions. Part III
addresses the legal intricacies of divorce in the Jewish tradition and the
difficult situation of the agunah, a woman whose husband has refused to
grant her a get, or a Jewish writ of divorce. The issue of divorce is located
in a larger textual discussion of the position of women in marriage. The
section explains how, in the rabbinic materials, the assumptions underlying
the halakhic regulation of a woman's sexuality conflict with contemporary
social norms. This Article also explores the respective American Jewish
movements' responses to this issue. Part IV begins with an analysis of
halakhic verses that prohibit homosexual sex in contrast to those texts that
suggest the possibility for alternative genders and sexualities. It also
addresses the halakhic and social implications of these texts for modern
Jewish movements, examining the official reactions of traditional and
liberal Jewish movements to the increased visibility and participation of
gay, lesbian, bisexual, and transgender Jews ("GLBT Jews") in their
respective Jewish communities. It also incorporates GLBT Jews'
articulations of their relationships to, and with, the larger Jewish
communities in the search for positive Jewish identity.

Part V concludes with an analysis of whether the modern American
Jewish movements are consistent in their manner of interpreting and
implementing halakhic texts in their respective developments of Halakhah.
While the modem Jewish movements are actively responding to the
difficulties posed by topics such as divorce and homosexuality, Orthodox,
Reform, Conservative, and Reconstructionist Judaism approach each
controversial matter strategically, in accordance with their respective
theological beliefs. It is important, then, to recognize both how these
contemporary authorities apply halakhic texts, as well as how their
decisions considerably affect the many people today who value Jewish legal
traditions. This Article argues that the Reconstructionist approach to
halakhic texts is the most consistent in terms of its internal logical
reasoning, even though it departs furthest from the traditional rabbinical
constructions of sexuality.

I. MODERN JEWISH MOVEMENTS: A PARALLEL LEGAL
SYSTEM IN AMERICA

The focus of this work is on modem American Jewish movements
and their dependence on, or departure from, past halakhic texts in their
development of contemporary Halakhah. Specifically, this Article analyzes

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Of Pearls and Fish

how older halakhic texts regulated marriage, divorce, and homosexuality
and how these texts formed the basis for the dominant paradigm of
heterosexual marriage in Judaism. Halakhah regulates life in a way that is
different from, but just as important as, secular law. The scope of this
Article is restricted to Jewish law. Religious law is important to individuals
and to society in its own right. While secular law may sometimes act as a
reference point, religious law can, and does, stand alone as a parallel
system. Indeed, breaking these religious laws can lead to sanctions for the
offender.

Just as other religions contain a variety of perspectives, Jewish
beliefs and practices are not monolithic. It is important to identify the major
streams of Judaism in America and their varying attitudes towards the
sacred texts, as their theological perspectives certainly shape their positions
on contemporary gender issues.

The most traditional movement is Orthodox Judaism, which
upholds the divine and immutable authority of the Hebrew Bible and the
Oral Law, including the Midrashim, the Mishnah and Gemara of the
Talmud, works of the Rishonim and Aharonim, and decisions by rabbinical
scholars today. 3 For Orthodox Jews, 4 "Halakhah is the essence" of Jewish
belief, and their "version [of Jewish law] is the only correct interpretation of
Judaism." 5 There do exist "liberals in the [Modem] Orthodox camp who
recognize the human factor and espouse the need for Halakhic
development" and reject the opinions of rabbis who do not "[allow] for
[any] economic, sociological, or psychological factors in Halakhah," 6 as
well as those who disallow this approach. It is important to note the
possibility for internal disagreement, as it has a considerable impact on the
implementation of halakhically-based decisions.

3 17 ENCYCLOPEDIA JUDAICA 1486-94 (1971).

4 There are two distinct movements within this traditional version of Judaism:
Modem Orthodoxy and Ultra-Orthodoxy. Although Orthodox Jews claim to represent
"Torah-true" Judaism, Modem Orthodoxy more accurately reflects one response to the
Haskalah, or Jewish Enlightenment of the eighteenth and nineteenth centuries. Id. This was a
period when Jewish leaders advocated limited secularization with the expectation that
fundamental beliefs in one God and Halakhah as promulgated by the rabbis would remain
constant. Id. Jewish leaders encouraged Jews to leave the ghettos of Europe and take
advantage of the rights the state accorded to them by enjoying secular cultural pursuits and
learning the national languages of the countries in which they lived. This endorsement
eventually led to Jewish reformers advocating changes in Jewish liturgy and practice, both in
Orthodoxy and Reform Judaism. Ultra-Orthodoxy, in part, was another reaction to that
freedom, and Jews in Ultra-Orthodox sects continue to reject the secular world. Id.

5 GILBERT S. ROSENTHAL, CONTEMPORARY JUDAISM: PATTERNS OF SURvIvAL 65-

66, 84 (1986).
6 1d. at 63.

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488 Columbia Journal of Gender and Law [Vol. 15:2

In contrast, Reform Judaism promotes a more pluralistic attitude.
Ethical teachings of the Jewish tradition guide Reform theology, and thus
"Halakhah is valuable, but is not to be accepted on blind faith as coming
from Heaven." 7 In this context, Jewish practice changes more readily in
response to modernity because the goal is to maintain guiding principles,
such as compassion, rather than enforce specific laws that are now
considered to compromise moral actions.8 This does not mean, however,
that Jewish law is totally irrelevant.9 Decisions by the Central Conference
of American Rabbis, the national organization for Reform rabbis, as well as
other Reform thinkers, take into account halakhic norms and their historical
background, even as these Reform rabbis are willing to consider non-
halakhic factors, especially values, that militate against traditional
arguments.'

0

Conservative Judaism's views lie between the religious ideologies
of Reform and Orthodox Judaism. Conservative Judaism recognizes Jewish
texts and traditions as authoritative and, to a limited extent, divine in origin,
but also realizes the need for change "when specific mitzvot
[commandments] seem to be outmoded or arbitrarily unethical."" These
Jews emphasize the binding nature of Jewish practice while using historical
and philosophical insights into the development of Judaism to evaluate the
modem application of Halakhah. 12 The Rabbinical Assembly, the
professional organization to which Conservative rabbis belong, has granted
the Committee on Jewish Law and Standards "the responsibility for
recommending revisions in religious practice on the basis of Halakhic
interpretation."' 

3

7Id. at 147. Indeed, Reform Jews do not have one standard conception of God;
rather "Reform believes in a varied interpretation .. with wide latitude for naturalists or
mystics, supernaturalists or religious humanists." Id.

8 14 ENCYCLOPEDIA JUDAICA, supra note 3, at 23.

9 The Columbus Platform in 1937 "assumed a considerably more affirmative
approach toward traditional observance and practice" than had been historically present in
Reform Judaism. DAVID RUDAVSKY, MODERN JEWISH RELIGIOUS MOVEMENTS: A HISTORY
OF EMANCIPATION AND ADJUSTMENT 312 (1967).

'0 14 ENCYCLOPEDIA JUDAICA, supra note 3, at 26.

11 ROSENTHAL, supra note 5, at 211.

12 "Conservative Judaism admits that change and renewal, as people.., gain new

ethical sensitivities, or no longer share a particular observance's social assumptions, are
necessary." MARC LEE RAPHAEL, PROFILES IN AMERICAN JUDAISM: THE REFORM,

CONSERVATIVE, ORTHODOX, AND RECONSTRUCTIONIST TRADITIONS IN HISTORICAL

PERSPECTIVE 101 (1984).

13 RUDAVSKY, supra note 9, at 342.



Of Pearls and Fish

Originally an offshoot of Conservative Judaism, and now a Jewish
movement in its own right, Reconstructionism does not recognize the divine
origin of Jewish texts or traditions. The ancient works of Judaism instead
represent "man's attempt to discover God as the power of self-fulfillment or
salvation."'14 Halakhah is not binding: "Jews should voluntarily choose to
observe those customs that are personally meaningful and socially valuable
for group survival. 15 This community uses Jewish laws and traditions as
guidelines for a religiously evolving civilization. From this perspective,
ethical issues in Judaism can be readily solved outside, while still
referencing, the halakhic framework. Unlike Orthodox Judaism, where
authority is decentralized, or Reform and Conservative Judaism, where
decision-making is generally by official committee (while granting
individual rabbis some freedom), Reconstructionism encourages
"congregational committees, under rabbinic leadership" to determine
community practices. 16

A. Analyzing Halakhah

This Article analyzes those halakhic works that are most
representative of rabbinic legal positions17 on issues of sexuality, especially
those texts that modem Jewish legal authorities continue to refer to today. It
evaluates Halakhah in a variety of time periods. The Hebrew Bible, mostly
written (though not standardized) by the first century C.E., serves as the
basis for explanations in later texts, and this Article examines biblical laws
in the historical context of the Ancient Near East. From the third century,
the Mishnah is a concise collection of legislation, organized by topic, whose
authors often refer to the biblical verses as support for their halakhic
innovations. Many works of halakhic Midrash, texts that generally follow
the order of the Bible, also come from the first centuries C.E. The Tosefta, a
body of legal literature contemporaneous with the Mishnah, but not
included in its final redaction, extends the Mishnaic rulings. Rabbis from
the Mishnah, Midrash, and Tosefta are called Tannaim and material from
this time period is called tannaitic. There are two Talmuds that consist of
the Mishnah and commentary on the Mishnah, called the Gemara. The

14 ROSENTHAL, supra note 5, at 255.

15 Id.

16 RAPHAEL, supra note 12, at 186.

17 It is important to note that all of these sources are collected works, meaning that

redactors gathered, edited, and re-edited the sources and previous editions. This Article
interprets the positions as they appear in modem printed editions, with the acknowledgement
that other, hidden voices may have shaped the texts. See, e.g., RICHARD ELLIOTT FRIEDMAN,

WHO WROTE THE BIBLE? (1987); 15 ENCYCLOPEDIA JUDAICA, supra note 3, at 15.

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Jerusalem Talmud, also known as the Yerushalmi, was set down around the
fourth century C.E. in the land of Israel. The Babylonian Talmud, also
known as the Bavli, was compiled from the third century until the sixth
century C.E. in Babylonia. Most of the people from this period are called
Amoraim.

Most of the sources from later than the sixth century date from the
eleventh century C.E. onward. Rabbi Shlomo Yitzchak, otherwise known as
Rashi, wrote his commentary on the Torah during this time. Rabbi Moses
ben Maimon, also known as Rambam or Maimonides, 18 compiled halakhic
rulings in the Mishneh Torah. Finally, in the fifteenth century, Joseph Caro
wrote the Shulchan Arukh. He evaluated three major works of legal rulings
written in earlier centuries, including the Mishneh Torah, and chose what he
considered the most definitive rulings. This Article also includes halakhic
scholars who lived from the Renaissance until modem times. 19

While this analysis covers a broad spectrum of works, an
examination of every text relating to sexuality in the Jewish tradition is
neither practicable nor feasible. Because the major movements of Judaism
use the full corpus of sacred texts in their contemporary interpretations of
sexuality, however, it is important to evaluate these halakhic texts in their
proper historical contexts. This Article analyzes those texts that best
illuminate the consequences of Jewish understandings of sexuality for
contemporary Orthodox, Reform, Conservative, and Reconstructionist
Judaism.

B. Sexuality

Scholars have historically differentiated between sex and gender.
Sex suggests a person's biological makeup-whether she or he has female
or male reproductive organs, respectively-and gender refers to a societal
construction that expects certain behaviors from women and men in a
culturally assembled context. Sexuality, to a limited extent, is the bridge
between these two terms: "the physical and emotional grounding of an
individual's capacity to love, [including] the physical and psychological
dimensions of the human person." 20 Certainly, "sex, sexuality, and
reproduction are all closely woven into the fabric of living things. All relate
to the propagation of the race and the survival of the species. Yet there can

18 Rabbi Moses ben Maimon was born in Spain and lived in Egypt during the

twelfth century. 11 ENCYCLOPEDIA JUDAICA, supra note 3, at 754-55.

19 These more recent texts are called responsa because each responsum generally

responds to a legal problem in Jewish law.

20 Michael A. Hayes, Sexuality and Spirituality: Embattled Enemies or Kissing

Cousins?, in RELIGION AND SEXUALITY 240, 244 (Michael A. Hayes et al. eds., 1998).

490 [Vol. 15:2



Of Pearls and Fish

be sex without sexuality, and reproduction need not [but can] be sexual.",21

While different cultures may recognize a variety of sexualities and genders,
most societies, including the Jewish community, assign gendered sexual
scripts to men and women. Babies are not born with innate knowledge of
these expectations; rather they "are given an assigned gender based on
anatomical appearance . . . [which] is significant because it tells others how
to respond. 22 Learned over time, expressions of sexuality reflect a sexual
identity strongly tied to a person's perceived sex and gender. When this
Article refers to sexuality, this means the full range of bodily and emotive
responses to sexual arousal, including a variety of sexual activities that may
sometimes culminate in sexual intercourse. This definition of sexuality does
not consist only of sex; it also refers to all the reactions a person has when
attracted to another. These are, however, modern, secular conceptions that
are certainly not incorporated in ancient texts and are not necessarily
included in modern Jewish legal approaches. Sexuality is a tool for analysis
and critique.

H. HALAKIIC CONCEPTIONS OF (HETERO)SEXUALITY

Halakhah overwhelmingly prescribes one legitimate option of
sexual expression for Jews: heterosexual intercourse between a man and a
woman legally married to each other. The rabbis and redactors of halakhic
texts, in their legislation about marriage and other relationships between
Jews, work from the normative assumption of heterosexual desire and
behavior for men and women. As they note similarities and differences with
regard to men's and women's sexuality, the rabbis set the standards for the
physical expression of desire. Their laws reach far beyond marriage and
divorce to include everyday interactions between men and women. For
example, rabbis instituted laws of modesty to control perceived sexual
tension and presumably to aid people in avoiding sexual sins, namely sexual
relations outside of marriage. Today, halakhic constructions of sexuality are
the repositories of the rabbis' assumptions concerning sexuality. Their
interpretations' continuing authority contributes to the emphasis on
marriage between men and women and on procreation in the Jewish
community.

This section argues that the rabbis of the texts identify particular
characteristics of sexuality and that these attributes support the halakhic
ideal of heterosexual marriage for the expression of sexual desire. They
differentiate between the sexual roles of men and women in detailed

21 Sex, in ENCYCLOPEDIA BRITANNICA ONLINE (2005), http://search.eb.com/eb/

article-9109533.

22 BRYAN STRONG ET AL., HUMAN SEXUALITY: DIVERSITY IN CONTEMPORARY

AMERICA 121 (4th ed. 2002).

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492 Columbia Journal of Gender and Law [Vol. 15:2

discussions in order to reinforce that heterosexual model. The extent to
which men and women develop and exhibit these sexual feelings, in the
rabbis' opinions, differs substantially 23 and subsequent legislation reflects
that assumption, albeit with a double standard. The rabbis explain that men
actively pursue and engage in sexual intercourse as evidenced by their easy,
likely arousal by women, their overt expression of desire, and their
dominant position during sexual intercourse. On the other hand, they
contend that women suppress explicit articulation of their sexual desires,
unless they are vigorously seducing men and leading the entire Jewish

23 Indeed, differences begin and are established early. The rabbis contest when

sexual desire and desirability begin in boys and girls. On the surface, it appears that the legal
distinction would correlate with the age of responsibility and eligibility for marriage: around
twelve years old for a girl and thirteen years old for a boy. There is, however, halakhic
awareness that no one can quantify sexual development on the basis of age, simply because
children physically mature at different rates. In a legal commentary from the last century,
Rabbi Abraham Yeshayashu Karelitz explained that the regulation of a girl's sexual
expression was "a measure against erotic thought and distraction and should not apply to
girls too young to have such an effect. One would suppose it applies only where temptation
lurks, i.e., that it is not a matter of age but of physical form and appearance." GETSEL
ELLINSON, II WOMAN AND THE MITZVOT: THE MODEST WAY 191, 350 (Raphael Blumberg
trans., 1992) (quoting Hazon Ish, Orah Hayyim 16, letter 8).

This position finds support in many of the earlier halakhic sources. In the
Babylonian Talmud, for example, Berakhoth 24a addresses the question of whether a man
may recite the Shema in bed in front of his children and other minors. Id. at 191 n.54. R.
Hisda said that a man may do so "until a young girl is three years and one day old and until a
young boy is nine years and one day old," after which age it is likely he will be aroused by
those children. HEBREW-ENGLISH EDITION OF THE BABYLONIAN TALMUD: BERAKOTH 24a
(Isidore Epstein ed., Maurice Simon trans., Soncino Press 1972) [hereinafter BERAKOTH].

The dialogue continues: "Others say until a young girl is eleven years and one day old and
until a young boy is twelve years and one day, each up until when 'your breasts were
established and your hair had grown."' Id. (author's translations).

The signal for when a child has reached adulthood, therefore, is not age alone but
rather the onset of puberty, a phenomenon of which the rabbis were well aware. They
realized that puberty affected the two sexes differently: "[T]he two indicators [of puberty],
the first of which applies to both boys and girls, whereas the second is gender-specific, are
the appearance of pubic hair and the growth of a girl's breasts." CHARLOTrE ELISHEVA
FONROBERT, MENSTRUAL PURITY: RABBINIC AND CHRISTIAN RECONSTRUCTIONS OF BIBLICAL

GENDER 143 (2000). Fonrobert includes several textual references with regard to the physical
onset of puberty: mNid 6:11; mNid 5:9, 6:1, 6:11-12; tNid 6:2-7; mNid 5:8; tNid 6:4 (mNid
refer to Mishnah Niddah, and tNid refers to the related Tosefta). See generally HEBREW-
ENGLISH EDITION OF THE BABYLONIAN TALMUD: NIDDAH (Isidore Epstein ed., Israel Slotki
trans., Soncino Press 1989) [hereinafter NIDDAH]. Practically, this varying development had
few effects on the application of modesty conventions. Girls and boys who have not reached
puberty by age twelve or thirteen, respectively, or for some authorities, even younger
children, are held to the same standards of modesty as are men and women who have
reached physical maturity, because their adherence to these laws serves to educate them
about the proper ways of relating to members of the opposite sex. According to the rabbis,
boys and girls, clearly differentiated in their youth, grow up to be adult men and women with
distinctive sexual expressions and responsibilities.



Of Pearls and Fish

community to sin. Expressed within those roles are halakhic admonitions
and advice meant to prevent illicit sexual relations that come about from
sexual tension between men and women seeking to express their desires.
The rabbis limit contact between unmarried men and women, but for men,
Torah study is promoted as a way, in part, to prevent extramarital sexual
intercourse. Their regulations address nearly every possibility of sexual
arousal, prohibiting those actions that might contribute to a permissive
atmosphere. Recognizing the limitations of those guidelines, Halakhah
decrees that matrimony, by satisfying sexual desires with the goal of
procreation, is the natural and proper resolution of sexual tension.

The next section explores contemporary reactions to this halakhic
structure; all of the modem Jewish movements have, within the last ten
years, if not before, affirmed the central role of marriage in Jewish practice,
emphasizing in particular its role in procreation, and have only recently
reevaluated the position of the traditional heterosexual family in Judaism.
Together, the halakhic construction of sexuality and the situating of that
heterosexual paradigm in the modern context provide the background for
the analysis of divorce and homosexuality in Jewish tradition.

A. Male Sexuality

Encouraging marriage is the halakhic way of regulating men's
sexual needs that would otherwise lead to aggressive and unchecked pursuit
of intercourse. First, this section explains the rabbis' concern for men's
sexual desires and the possibility of Torah study as the solution to this
problem. Second, it explores how the rabbis viewed and regulated sexual
intercourse within marriage. It is crucial to note that the rabbis write from
their own experiences and observations, and thus their laws reflect
heterosexual male perceptions of sexual identity.

For the rabbis of the texts, male sexual desire threatened men's
physical lives as well as the basic structure of society. Halakhah considers
men more likely to seek satisfaction of their sexual desires. The male is
always at the mercy of his Yetzer HaRa, the evil inclination that, with
women, "present[s] a particular threat to male sexual self-control. '24 Men
are easily aroused: Babylonian Rabbi Sheshet25 exclaims, "[A]ll who see a
woman's little finger, it is as if he is seeing her secret place. 26 Lest one

24 Michael Satlow, "Try To Be A Man": The Rabbinic Construction of

Masculinity, 1996 HARv. THEOLOGICAL REv. 37, 89.

25 Rabbi Sheshet lived during the late third century in Babylonia. GUNTER

STEMBERGER, INTRODUCTION TO THE TALMUD AND MIDRASH 92 (Markus Bockmuehl ed. and
trans., 2d ed. 1996).

26 HEBREW-ENGLISH EDITION OF THE BABYLONIAN TALMUD, supra note 23, at 24a

(author's translation).

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494 Columbia Journal of Gender and Law [Vol. 15:2

think that this statement is merely an aberration, the redactor(s) included
this rabbi's statement again in Shabbat 64b.27 The rabbis also realized that
visual stimulation was not the only action that causes arousal, concluding,
for instance, that "a woman's voice constitutes an erotic stimulus. '28 In the
Babylonian Talmud, Ketuboth 64b offers evidence for this strong desire and
its inevitable relief, in a sinful sexual liaison if not within the context of
marriage:

R[abbi] Hiyya bar Yosef 29 said to Shmuel, 30 what is the
difference between a rebellious husband and a rebellious wife?
He said to him [i.e. Shmuel said to Rabbi Hiyya bar Yosef]: Go
[and] learn from the market of prostitutes: who hires who?
Another explanation: his [urge/desire] is [lit. formed] external,
[and] hers is internal.31

This text suggests that, because men take the initiative in illicit sexual
relations, the "male sexual drive is stronger than the female sexual drive."32

This passage does not confer its approval on men who hire prostitutes, but

27 ELLINSON, supra note 23, at 79.

2' Id. at 100, 355 (citing the Kol Bo 45, a halakhic work from before the fourteenth

century).

29 According to Stemberger, this third century rabbi, a second-generation member

of the Amorain, "migrated from Babylonia to Palestine." STEMBERGER, supra note 25, at 87.

30 Probably from the first generation of Amoraim, Shmuel lived in the third century

in Babylonia. Id.

31 MICHAEL SATLOW, TASTING THE DISH: RABBINIC RHETORICS OF SEXUALITY 286

(1995) [hereinafter SATLOW 1995]. I verified Satlow's translation using the text from the
HEBREW ENGLISH EDITION OF THE BABYLONIAN TALMUD: KETUBOTH 24a (Isidore Epstein
ed., Samuel Daiches trans., Soncino Press 1989) [hereinafter KETUBOTH]. See also Ketuboth
24a, Ma'agar Sfirat HaQodesh/Store of Holy Texts, http://kodesh.snunit.k12.il/b/l/13201.htm
(last visited Oct. 16, 2005) [hereinafter Store of Holy Texts]. Because the halakhic texts
examined in this Article are Jewish holy texts originally written in Hebrew or Aramaic and
because English-translated editions of the texts may not be easily accessible to readers, I
have provided two separate sources for the same halakhic texts. In writing this Article, I
read, translated in the first instance, or verified translation of halakhic texts by examining
them exclusively in Hebrew or Aramaic, relying mostly on the original versions of the
halakhic texts located online at the Store of Holy Texts. In the process of editing, I have
reviewed the Soncino Press editions, which have the texts in both languages, and verified the
Store of Holy Texts' Hebrew/Aramaic editions. Consequently, in each place where I cite a
halakhic text, or a chapter within that work, I have provided these two parallel sources in an
effort to best accommodate my audience's needs as dictated by their knowledge of Hebrew
and Aramaic.

32 SATLOW 1995, supra note 31, at 286.



2006] Of Pearls and Fish 495

rather shows that the rabbis feared male sexual desire was so strong that
most men, even moral men, would engage in immoral sex.33

For the creators of Halakhah, all of these factors come together to
threaten men's physical lives as well as the basic structure of society.
According to a story in Sanhedrin 75a in the Babylonian Talmud,

[a] man once cast his gaze upon a woman and became so aroused
that his life was imperiled. Upon examining him, physicians
pronounced that his only hope was to have intercourse with her,
but the rabbis said that they would let him die before permitting
such a thing. It was then suggested that she stand before him
naked, but the rabbis' response was the same. When it was
suggested that she talk to him from behind a wall, they were
again opposed.34

This man's intense reaction to seeing a woman indicates the strength of
these feelings and the danger that ensues when he cannot relieve them. The
doctors advocate what they consider most reasonable: erotic contact
between the two. The word used for intercourse has the root baal, which
also means "to be master of' or "to take possession of." Here, the woman is
the object of this "taking." The rabbis, perhaps using the word "baal" for
this reason, see the woman as literally an object of his affections of which
he alone requests possession:

And why did he not marry her? It would not have satisfied him.
As R. Yitzchak said, "Since the day the Temple was destroyed,
the desire for intercourse has been transferred to sinners: Stolen
waters are sweet and bread eaten in secret is pleasant" (Prov.
9:17)."

33 Importantly, the prostitutes to whom this section refers are female. The use of
the word "zonot," that is, the feminine plural for prostitutes, underscores the direction of that
male desire toward women and heterosexual sex. The passage does not leave room for sexual
intercourse to happen between people of the same sex within the halakhic framework. This
omission probably indicates the inconceivability for legitimate homosexual desire or
homosexual identity for at least some of the rabbis. Of course, this does not mean that men
and women did not engage in homosexual activity.

34 ELLINSON, supra note 23, at 49. Ellinson's translation was verified with the
HEBREw ENGLISH EDITION OF THE BABYLONIAN TALMuD: SANHEDRIN 75a (Isidore Epstein
ed., Jacob Shachter trans., Soncino Press 1994). See also Sanhedrin 75a, Store of Holy Texts,
http://wwwl.snunit.kl2.ilkodesh/bavli/snhd075a.html (last visited Oct. 16, 2005).

35 ELLINSON, supra note 23, at 79. Given that the other rabbis in related sections of
this discussion are Tannaim, I surmise that Rabbi Yitzchak lived in the early third century
and agree with Stemberger that he was one of Rabbi's contemporaries. STEMBERGER, supra
note 25, at 79.



Columbia Journal of Gender and Law

In this passage, the rabbis do not consider the possibility that this
relationship might involve two willing partners. The physicians and rabbis
disagree whether sexual contact between this man and woman would
actually relieve his desire or promote more aggressive, sinful sexual
behavior by him, considering that "some people's sexual pleasure depends
on the experience being adventurous and illicit."36 A man's sexual desire

wrongly channeled leads to inappropriate sexual contact outside the
approved framework of marriage; the rabbis respond to this challenge by

37
legislating conditions for contact between men and women.

So far, this section has shown that Halakhah presumes that strong
male sexual desires for women, so intense that they potentially threaten an
unmarried man's ability to function normally in the world, necessitate
resolution through expression of those feelings. It has also indicated that the
rabbis considered it likely that sexually unsatisfied men would seek out
illicit sexual liaisons in order to relieve their feelings. This is not, however,
limited to unmarried men. Within the context of a heterosexual marriage,
this trend of male aggression in matters of sexuality continues: Halakhah
proposes that men initiate intercourse, perhaps recognizing that men's
desires are stronger. In other words, "a man requests sexual relations"
outright by "showing his wife extra affection and love before nightfall,
speaking to her of love and embracing her." 38 In Baba Metsia 83a/84b, a
discussion of marital sexuality and its connection to procreation "sports
unusually graphic representations of maleness and the question of maleness
as figured through the body":

[tihere are those who say that this they said to her: "As the man,
so is his virility." And there are those who say that thus did they
say to her: "Love compresses the flesh."... Said Rabbi Yohanan,

36 Id. at 50 n.16.

37 Not surprisingly, the above passage ignores masturbation as a means to
resolution, probably because it is forbidden. Masturbation is roundly condemned in the
ancient sources, including multiple places in the Babylonian Talmud. See NiDDAH, supra
note 23, at 13a, 13b; Even HaEzer 23:1-3, in SHULCHAN ARUKH (Shneur Zalman ed., Kehot
Publication Society 2002). See also Walter Jacobs, CCRA Responsa: ARRI1 53.Masturbation
(1979), http://data.ccamet.org/cgi-bin/respdisp.pl?file = 153&year-arr/. The most important
factor regarding this prohibition was the problem of hash-hatat zera, or the "destruction of

seed," that could have been used to procreate. See DAVID M. FELDMAN, BIRTH CONTROL IN

JEWISH LAW: MARITAL RELATIONS, CONTRACEPTION, AND ABORTION AS SET FORTH IN THE

CLASSIC TEXTS OF JEWISH LAW 109 (1998). In any case, masturbation seemingly allows men
to satisfy their desires outside of the marital context; this concept troubles the rabbis because,
in their opinion, it does not resolve the problem. For example, the man above craved a
particular woman, and autoeroticism would not have satisfied his desire.

38 Hannah Rockman, Sexual Behavior among Ultra-Orthodox Jews: A Review of

Laws and Guidelines, in JEWISH EXPLORATIONS OF SEXUALITY 191, 199 (Jonathan Magonet
ed., 1995) [hereinafter JEWISH EXPLORATIONS].

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Of Pearls and Fish

"Rabbi Ishma'el the son of Yose's member was like a wineskin
of nine kav; Rabbi El'azar the son of Rabbi Shim'on's member
was like a wineskin of seven kav." Rav Papa said, "Rabbi
Yohanan's member was like a wineskin of three kay." And there
are those who say: like a wineskin of five kav. Rab Papa himself
had a member which [sic] was like the baskets of Hipparenum. 39

This text links male sexual desire for his wife to the size of a man's penis.
The mere occurrence of this narrative suggests that rabbis had little
difficulty illustrating how men were quite explicit about their sexual desires
within marriage.

Assuming that mere contact with women erotically stimulated men,
Halakhah prescribes marriage for every man for the relief of sexual urges.
Generally the mandate that "marriage per se is a requirement of the law, and
even its deferral must be justified '4° is connected to the duty of procreation.
However, the texts go further than procreation. Maimonides explains that an
unmarried man may continue studying Torah "providing his sexual drive
does not get the better of him; if it does he is required to marry even if he
already has children, in order that he not come to thoughts of sin. ' Later
rabbis codified this principle in the Middle Ages.42

While they recognized that the institution of marriage controls male
sexuality, the rabbis generally encouraged moderation for unmarried and
married men by the active limiting of sexual thoughts through dedicated
religious study. As Feldman summarizes R. Abraham ben David, "the
husband's intention [regarding sex] is a meritorious one if ... he wants to
avoid 'thoughts of sin.' ... [M]oderation in sex, food, and drink should be
his goal."43 Halakhah situates Jewish textual study in opposition to the
expression of sexuality, whether marital or otherwise. Because men were
considered easily aroused, a responsum suggests that

39 
DANIEL BOYARIN, UNHEROIC CONDUCT: THE RISE OF HETEROSEXUALITY AND THE

INVENTION OF THE JEWISH MAN 95 (1997). Boyarin's translation was verified with the
HEBREW ENGLISH EDITION OF THE BABYLONIAN TALMUD: BABA MEZIA 84a (Isidore Epstein
ed., Salis Daiches trans., Soncino Press 1994) [hereinafter BABA MEZIA]. See also Mezia
84a, Store of Holy Texts, http://wwwl.snunit.kl2.il/kodesh/bavlii/bbam084a.html (last
visited Oct. 16, 2005).

40 FELDMAN, supra note 37, at 27.

41 Id. at 32 (citing the MISHNEH TORAH: ISHuT 15, 3). See generally MISHNE

TORAH: RAMBAM (Moshe ben Shaltiel ed., Ma'or Publication Society 1975).

42 FELDMAN, supra note 37, at 32 (noting that this principle can be found in the

Tur and the Shulhan Arukh, Even HaEzer 1, 4).

431d. at 69 (stating that ben David is a "contemporary and official critic of
Maimonides' Law Code").

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Columbia Journal of Gender and Law

if a man knows [that traveling next to women] will lead to erotic
thought, he should avoid travel then unless essential. If he must
reach work, he should strive to divert himself with Torah thought.
As Rambam advises, "If it will lead to erotic thought, he should
turn his heart from banalities to Torah, that 'lovely hind and
graceful doe"' (Prov. 5:19). 44

The above example may also emphasize Halakhah's realization that there
are appropriate and inappropriate contexts for the expression of sexual
feelings; however, it is important to note that the avoidance of erotic
thoughts associated with women without the intention of marital sex is
seemingly accomplished by religious study.

Interestingly, though, the explanation given by Rabbi Simon ben
Azzai 45 for the justification of his continued bachelorhood implies that he
transfers his erotic thoughts, explained as "love," to Torah study, rather than
negating those feelings completely. He defends himself: "What can I do?
My soul is in love with [the study of] Torah. It is possible that the world
will be perpetuated by others. 4 6 Ben Azzai's connection of his love for
Torah with the commandment to have children is significant because it
highlights the relationship between sexual desire and procreation. He rejects
the obligation to reproduce by choosing to continue his Jewish learning; this
refusal is perhaps recognition of the mechanics of procreation. More likely,
it is a declaration that he, unlike other men, can direct his erotic feelings
toward the texts and therefore does not present a risk to the society at large:
he will not lose control of his emotions and pursue illicit sexual relations.
Furthermore, the root h.k, meaning "to be in love with," which Ben Azzai
used to denote his love of Torah, is not unique in this context. Later
halakhic works use similar sexual vocabulary to show their approval of this
lifestyle choice: "One whose soul is in love with the Torah and studies it as
Ben Azzai did, and cleaves unto it all his days commits no sin thereby.'A7

The word "cleaves," from the root dbk, implies marital sex, as it is the same
root used in Genesis 2:24 in the explanation of marriage: "Therefore a

44 ELLINSON, supra note 23, at 64-65 (citing Moshe Feinstein, IGROT MOSHE: EVEN

HAEZER, 14) (quoting Hilkhot Isurei Biah 21:19).

45 For Ben Azzai's biographical information, see STEMBERGER, supra note 25, at
74.

46 FELDMAN, supra note 37, at 31. The translation of the Hebrew here is my own.
See also HEBREw ENGLISH EDITION OF THE BABYLONIAN TALMUD: YEBAMOTH 63b (Isidore
Epstein ed., Israel W. Slotki trans., Soncino Press 1994) [hereinafter YEBAMOTH]. This text
may also be transliterated as "Y'vamot"; see also Y'vamot 63b, Store of Holy Texts,
http://wwwl.snunit.kl2.il/kodeshbavli/ibmu063b.html (last visited Oct. 16, 2005).

47 Id. at 31-32 (author's translation). See generally Mishneh Torah Ishut 15:3,
supra note 41. See also Mishneh Torah: Ishut 15:13, Store of Holy Texts,
http://kodesh.snunit.kl2.ili/4115.htm (last visited Nov. 6, 2005).

498 [Vol. 15:2



Of Pearls and Fish

man/husband leaves his father and his mother and cleaves (dabak) with his
woman/wife and they become one flesh. 48 The language makes it clear that
Ben Azzai satisfies his sexual desires by having an intimate connection with
Torah.49

The rabbis' discussion of male sexuality continues into a detailed
exposition of marital intercourse. Indeed, Maimonides advises in the
Mishneh Torah, Deot 4:19 that "[s]exual expression [in marriage] for the
relief of physical pressures is both morally and physically salutary. 5 ° While
some would argue that Maimonides's suggestion is not necessarily halakhic
because there are no punishments associated with its breach, such moral
judgments may eventually gain the force of law because they are contained
within legal texts.

Thus, aggressive in his pursuit of erotic fulfillment, a man takes
control during the actual sex act. As Niddah 3 1 b, from the Babylonian
Talmud, explains: "And why does the man lie face downward [during
sexual intercourse] and woman face upward towards the man? He [faces the
elements] from which he was created and she [faces the elements] from
whom she was created." " This explanation of positions in sexual
intercourse reinforces the man's higher status as compared to the woman's
inferior status: she is below him literally and figuratively. This does not
imply that, in reality, women did not have active roles during sex, but only
that the Halakhah encourages the man's control of the act of penetration.

A discussion of sexual positions in the Shulchan Arukh illustrates
how this explanatory section of the Niddah was later used to delineate what
constituted proper marital sexual intercourse:

He underneath and she above him is considered an impudent act;
both at the same level is considered a perverted act. It is told of
Rabbi Eliezer that he used to have cohabitation with such awe

48 Genesis 2:24 (Biblia Hebraica Stuttgartensia (Rudolf Kittel et al. eds., 1997))

(author's translation).

49 Unfortunately, writers after Maimonides condemned Ben Azzai for his choice.
FELDMAN, supra note 37, at 32. This disapproval does not, however, take away from the role
that studying Jewish texts fulfills for men.

50 Id. at 70 (paraphrasing R. Isaac Aboab).

51 JUDITH R. BASKIN, MIDRASHIC WOMEN: FORMATIONS OF THE FEMININE IN
RABBINIC LITERATURE 15 (2002). Baskin's translation was verified with Niddah 31 b, supra
note 23. See also Niddah 31b, Store of Holy Texts, http://wwwl.snunit.kl2.il/kodesh/
bavli/nidh03 lb.html (last visited Oct. 16, 2005).

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Columbia Journal of Gender and Law

and terror that it appeared as if a demon was forcing him to do
it52

This halakhic text emphasizes that the proper position in marital sexual
intercourse set out in Niddah can sufficiently gratify a man's sexual
appetite. Rabbi Eliezer was able to release his great sexual feelings, like a
"demon," 53 by following the rabbinical rules of cohabitating properly with,
it is assumed, his wife. However, in the Mishneh Torah, Issrei Biah 21:9,
Maimonides challenges this limitation on sexual positions: "But a man's
own wife is permitted to him and, with her, he is allowed to do as he
pleases. He may cohabit with her whenever he pleases, kiss her wherever he
pleases, and cohabit naturally or unnaturally."' 54 Nonetheless, even this
permission for liberality in the sexual act reinforces the halakhic ideal: male
control of marital sex. Halakhah grants the husband the prerogative to have
sexual relations with his wife, albeit within the limits discussed below.

While attitudes toward sexual orientation are addressed in Part V, at
this point it is important to note that the rabbis look with favor on
heterosexual intercourse within marriage. There are instructions for the
expression of sexual desires within marriage, and, as shown infra, sex is
seen favorably with regard to the wife's marital rights and to the general
purpose of procreation. However, there is a dearth of instruction or
encouragement for male (or female, for that matter) homoerotic behavior.
This omission emphasizes the primacy of heterosexuality: the legal advice
to men assumes that the man engaging in sexual relations does so with a
female partner, his wife.

B. Female Sexuality

Because they were male, the rabbis were able to regulate male
sexuality based on understandings of their own sexual identities, as show 1
by the bulk of personal evidence used to support the laws. The regulating c -

52 EVELYN KAYE, THE HOLE IN THE SHEET: A MODERN WOMAN LOOKS AT

ORTHODOX AND HASIDIC JUDAISM 124 (1987) (citing SOLOMON GANZFTELD, CODE OF JEWISH

LAW: A COMPLILATION OF JEWISH LAWS AND CUSTOMS (1963)). Kaye does not detail what
section and verse of Ganzfield's book she references.

53 This "demon" may also be an expression of Rabbi Eliezer's Yetzer HaRa, or as
discussed, supra note 24, his "evil inclinations."

54 FELDMAN, supra note 37, at 89. Feldman suggests that "unnaturally" could have
three meanings--"dorsal," "retro," and "a tergo"-and reflect a concern for semination
outside procreation. Id. at 155 n.63. Chapter 8 of Feldman's work discusses this topic more
generally. Although I am unsure what would consist of cohabitating "unnaturally,"
Maimonedes clarifies his position by stating that "the way of piety is not to be frivolous
about this but to approach it with holiness and not deviate from the natural," which means, I
assume, the standard sexual position suggested by the other sources. Id. (quoting Issrei Biah
21,II).

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Of Pearls and Fish

female sexuality, however, was a different process altogether; to construct
female sexual identities as reflected by female experiences, the rabbis had
to rely on anecdotal evidence from female relatives. As a result, Halakhah
reflects male opinions of what sexual practices and feelings women ought
to have, especially with regard to how female sexual expression should fit
into the patriarchal legal structure perpetuated by the rabbinical system.
Therefore, "discussion of women's sexuality is primarily confined to
strategies of control of women's sexuality" as "recorded by a small elite
group of male religious leaders." 55

Certainly, the rabbis affirmed that both sexes had strong desires,
noting that "all sexual prohibitions, whether involving intercourse or
foreplay, apply equally to the man and woman involved., 56 As they did for
men, the rabbis prohibited certain activities that would lead to the sexual
arousal of women, stating that "a woman, like a man, is enjoined to avoid
every act that will lead to her own sexual arousal, such as reading
pornographic literature." 17 This text indicates that Halakhah strongly
discourages any activity that arouses women outside of marital intercourse.
However, the rabbis believed that sexual stimulation occurred less
frequently in women; the majority rule was, for example, that "a woman
may gaze upon a handsome man, and likewise, most authorities hold that
she may hear a man sing [because] the sages gauged that women are not
aroused by this."5 8 Additionally, Rabbi Ovadiah Yosef writes: "Here is
proof that we do not fear women will have erotic thoughts [when looking at
a man's penis]. The reason is that they are not prone to sexual arousal." 59

This is an extreme statement, considering the level of visual stimulation.
Certainly women can become sexually aroused; other halakhic texts warn of
that possibility. However, the extreme character of this comment indicates
the extent to which women were seen as resistant to arousal.

Halakhah presents two constructions of female sexuality. The
seductress who arouses herself and threatens to lead men to sin is held in
opposition to the married woman who shows modesty regarding her
sexuality and sexual desire, reserving it only for her husband. First, the
problem of the seductress stems from the rabbinical concern that "she
violates a prohibition against 'approaching intercourse' [and] she leads men
to sin."60 Initially, it seems this concept of female sexuality acknowledges

55 SATLOW 1995, supra note 31, at 13.

56 ELLINSON, supra note 23, at 46.

57 Id.

58 Id.

59 Id. at 85-86 (citing Yabia Omer, Part I, 6:5).
60Id. at 46.

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Columbia Journal of Gender and Law

women's power to arouse and to be aroused. Unfortunately, the attitude of
Halakhah is less flattering: "[R]abbinic literature portrays women not only
as sexually attractive to men, but also as more sexually avid and as less able
to control their overwhelming desires '' 61 once aroused. In other words,
although it is harder to sexually excite women, once sexual feelings are
initiated, women cannot control themselves.62 Judith Baskin terms this
character flaw "light mindedness," 63 words that conjure images of weakness
and fallibility. In contrast, the extramarital sexual feelings of men are
viewed as outside forces that threaten him, and he is advised that Torah
study will negate those thoughts and prevent his acting wrongly. For a
woman, the texts equate her inability to control sexual arousal with a defect
in her character. The rabbinic "solution" places the physical burden of
controlling sexual stimulation on women. Women are instructed to monitor
their appearance and limit their interactions with men. By dressing
modestly and avoiding being alone with men, women reduce the risk that
either sex will inadvertently cause the arousal of another. Unlike men,
women are not given advice on how to curb their sexual desires, for
example, with sacred study-the rules of modesty provide a sufficient
check on female sexuality.

With marriage, however, the Halakhah desexualizes the married
woman outside the narrow context of marital intercourse. On one hand, the
law insinuates that, to a limited extent, marriage restrains women's sexual
desires as it does for men: by providing a channel for sexual expression.
Indeed, with marital sex serving as an outlet for sexual expression, the
rabbis believed that women were not even aroused by examination of their
vaginas. Taharat mishpachah, also called the "Laws of Family Purity,"
encompasses a set of practices that restrict a married couple's physical
contact during the wife's menstrual period.64 The woman checks herself
with her fingers in order to ascertain when her period has begun and then
ceased. Niddah 13a, in Ellinson's words, rationalizes that "we do not fear
that a woman's vaginal self-examination for menstrual blood will sexually
stimulate her." 65 The authors and redactors of Niddah 13a, it seems,
misunderstand the reason for a woman's ability to examine herself without
arousal. More likely, she performs this practiced task with an attitude that
reflects the seriousness of this duty rather than for satisfying sexual desires.

61 BASKIN, supra note 51, at 30 (quoting SATLOW 1995, supra note 3 1, at 158-59).

62 Id.

63 Id.

64 15 ENCYCLOPEDIA JUDAICA, supra note 3, at 703.

65 ELLINSON, supra note 23, at 85-86.

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Of Pearls and Fish

However, many rabbis, including Rabbi Ovadiah Yosef,66 interpreted this
theory to mean that the threshold for a woman's stimulation is incredibly
high-so much so that only intercourse with her husband arouses her-in
direct contradiction with the image of woman as seductress. In effect, that
conclusion acknowledges one possibility for sexual fulfillment:
heterosexual sex in the context of marriage. While this position contradicts
the existence of laws against women masturbating (why prohibit an act that
will not provide any satisfaction?), even those rules support the norm of
marriage because, without masturbation, a married woman can only relieve
her sexual desires lawfully by having intercourse with her husband.

This high threshold for a woman's sexual arousal contributes to the
halakhic perception of the woman's role in initiating and engaging in sex.
She is "essentially passive, [for] a female depends on male potency for
everything, including the production of progeny" 67 and sexual fulfillment. A
male's penis makes him the more important actor in sex: "to penetrate was
to reaffirm, perhaps even assert, this power. To be penetrated was perceived
as being as women were perceived, that is, weak and dominated." 68 A
woman does not make the first obvious move; rather, she prepares subtly by
wearing nice clothes and acting more lovingly than usual. Granted, as will
be explained in more detail infra, the husband is obligated to fulfill the
wife's right to sexual pleasure, but he initiates that contact when he wants to
have sex and believes his wife will acquiesce.

This does not mean that women were unable to subvert the system
and control when they had sex with their husbands. Halakhah very strictly
condemns marital rape: "Never may you [the husband] force her., 69 There is
an instance, repeated in both the Babylonian and Palestinian Talmuds, when
a wife rejects her husband's advances in accordance with taharat
mishpachah because she is menstruating, but the next day tells him that she
is available to him. 70 The confused husband runs to his rabbi who
encourages him to believe her.71 Charlotte Fonrobert reads this instance as
giving the woman control over her sex life and also

66 Id.

67 BASKIN, supra note 5 1, at 18.

68 Michael Satlow, "They Abused Him Like A Woman": Homoeroticism, Gender
Blurring, and the Rabbis in Late Antiquity, 1994 J. HiST. SEXUALITY 2, 5 [hereinafter Satlow
1994].

69 FELDMAN, supra note 37, at 74 (citing Rabbi Moses ben Nahman).

70 FONROBERT, supra note 23, at 26.

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504 Columbia Journal of Gender and Law [Vol. 15:2

as a symptom of the rabbis' or the redactors' anxiety about
women making legitimate halakhic arguments to their own
advantage. In such instances, women's discourse is curtailed by
repeatedly framing it as an issue of their believability, even in a
case such as this where a rabbi rules in favor of the woman.72

In reality, a wife undermines the halakhic system by manipulating
the rules to her advantage, giving herself some element of control.
Normally, taharat mishpachah constitutes a halakhic control on marital
sexuality by establishing limits on intercourse, ostensibly as a way to
increase the couple's sexual pleasure, but here the woman co-opts that

regulation. Halakhah, however, responds to this possible usurpation by

avoiding legislation that might shift the balance of marital power toward
her. While marital rape is condemned, there are no legal "consequences for

husbands who do not respect their sexual partners. 7 3 Such injunctions are
"ethical guidelines," 74 subject to the level of restraint the husband can

achieve. In contrast, "although the wife has the right in principle to refuse

sex on any occasion, her consent can be understood through silence and

necessarily ambiguous signs." 7 She does not actively seek out or directly
turn down intercourse because she could be subject to legal action, even
divorce, if she rebuffs her husband's advances outright. This possibility will

be discussed in Part III, infra. However, it is important to see that rabbinical
understandings of female sexuality form the basis for laws regulating
divorce.

Although Halakhah strongly recommends that the proper position
76

of marital sexual intercourse is as described in Niddah, and although this

suggests that the man controls penetration, there are also halakhic
possibilities for the woman's active participation. Hannah Rockman
recounts:

The Talmud relates how Rabbi [H]isda. ... personally instructed
his daughters how to prepare for sexual relations: When he wants
to hold the pearl [a euphemism for the breast] with one hand and
the little fish [vagina] in the other hand, offer the pearl to him, but

72 Id.

73 BASKIN, supra note 51, at 108.

74 Id.

75 BoYARIN, supra note 39, at 171.

76 See supra notes 50-54 and accompanying text.



2006] Of Pearls and Fish 505

don't offer the little fish to him until he is aroused. Then offer it
to him."

The woman actively controls the progression of intercourse, although it
could be said that she restrains her husband's initiative. The text's
circumlocution seemingly considers a woman's body as property. However
representative of actual body parts, the "pearl" and "fish" are objects that
people own. Whether the language actually reflects a rabbinic perspective
of women as property, it is significant that the man is compared to an owner
who determines what happens with his chattel. Like the situation of a man
who forces his wife, there are no legal penalties for a husband who, during
intercourse, does something his wife does not want; his wife cannot appeal
to a rabbinic authority for intervention:

A woman once came before Rabbi and said, "Rabbi! I set the
table before my husband, but he overturned it." Rabbi replied:
"My daughter! The Torah has permitted you to him-what then
can I do for you?" A woman once came before Rab and
complained, "Rabbi! I set a table before my husband, but he
overturned it." Rab replied: "Wherein does it differ from a
fish?"

78

The woman "set[s] the table," that is, ambiguously signals that she is
sexually aroused and wants sex in a certain manner, but the husband
proceeds in an ostensibly aggressive way, possibly ignoring the normal
conventions for intercourse. 79 The woman complains but has no recourse;
again, the text refers to her as a fish, the property of her husband. 0 This

77 Rockman, supra note 38, at 199.

78 Babylonian Talmud, Nedarim 20b, in BASKrN, supra note 51, at 107. I verified
Baskin's translation. See HEBREW ENGLISH EDITION OF THE BABYLONIAN TALMUD: NEDARIM
20b (Isidore Epstein ed., H. Freedman trans., Soncino Press 1994); see also Nedarim 20b,
Store of Holy Texts, http://wwwl.snunit.k]2.il/kodesh/bavli/ndriO20c.html (last visited Oct.
16, 2005).

79 While it is clear that "overturns" means having sex in a non-standard manner,
Boyarin argues that the man insisted that he be on the bottom and the woman on top during
sex. However, Boyarin admits that there is not a consensus for this definition; in a footnote,
he mentions that it could refer to anal intercourse. I disagree with the rest of his analysis of
this passage; he argues that the rabbis mean that the couple can engage in any positions
during sex. The rest of the texts do not bear this out. Daniel Boyarin, Women's Bodies and
the Rise of the Rabbis: The Case of Sotah, in JEWS AND GENDER: THE CHALLENGE TO
HIERARCHY, STUDIES IN CONTEMPORARY JEWRY XVI 88, 93, 98 (Jonathan Frankel ed., 2000).

8 0 Boyarin argues, based on the Talmudic discussion surrounding this text, that the
fish represents intercourse, not the woman's body. I disagree because I think it is possible to
read those texts in a way that analogizes a woman's body to a possession. For example,
Boyarin refers to preceding text with a similar theme: "Anything that a man wishes to do
[together] with his wife, he may do, analogous to meat that comes from the shop. If he



506 Columbia Journal of Gender and Law [Vol. 15:2

relationship maintains the heterosexual connection between the two, albeit
with an uneven balance of power with regards to the legalities involved.

Still, the rabbis recognize that a woman ought to have and enjoy
sex with her husband. Halakhah legally enjoins a husband to respect his

wife's right to onah. One of the three marital requirements of the husband
to his wife, onah mandates the wife's pleasure. The husband's duty varies
depending on his occupation:

With regards to Onah, said in the Torah: those who are men of
leisure, every day; those who are workers, twice; those who are
donkey-drivers, once; those who are camel-drivers, once every
thirty days; those who are sailors, once every sixth months, in the
words of Rabbi Eliezer.81

In this way, the system respects a wife's sexual needs, while recognizing
the realities of the working world in antiquity. Ostensibly the central point

of onah is not procreation but the wife's enjoyment; however, to "reward"
the husband, this pleasure is connected with successful procreation, the
birth of a son. "If the woman emits her semen first she bears a male child; if
the man emits his semen first she bears a female child, for it is said, 'When
a woman brings forth seed and bears a male.' (Lev. 12:2). '

,82 The traditional
interpretation of onah "always describe[s] [it] in terms of the man's sexual
obligation to his wife."8 3

Here, however, the man receives two benefits from his duty,
gaining both temporary sexual satisfaction and a tangible prize, a son.8 4

wishes to eat it with salt, he may; roasted, he may; boiled, he may; braised, he may. And

similarly fish .... Id. at 92. Boyarin appears to say that the methods of cooking are the

variety of positions added to intercourse. It is also possible to read the different methods of

cooking as varying methods of intercourse done to the "meat" of a woman.

81 KETUBOTH, supra note 31, at Ch. 5. See also Ketuboth, Store of Holy Texts,

http://wwwl.snunit.kl2.il/kodesh/bavli/ctub05.html (last visited Oct. 16, 2005).

82 BASKIN, supra note 5 1, at 21 (quoting Niddah 31 a).

83 BOYARIN, supra note 39, at 171-72 n.58.

94 In Genesis, God commands men several times to "be fruitful and multiply."

Genesis 1:28; 9:1,7; 35:11. Halakhah does not directly include women in this obligation,

stating, "'Increase and multiply, fill the earth and subdue it,' [which] is interpreted to apply

to one whose business it is to subdue rather than to be subdued." FELDMAN, supra note 37, at

53-54 (construing Yebamoth 65b). I verified this translation. See YEBAMOTH, supra note 46,

at 65b. See also Yebamoth 65b, Store of Holy Texts, http://wwwl.snunit.kl2.il/kodesh/

bavli/ibmu065d.html (last visited Oct. 16, 2005). Therefore, the connection between

procreation and sexuality is apparent primarily in texts about men's sexuality, especially

about their penises. This emphasis on the male role in procreative sex once more highlights

the passivity of women in initiating and engaging in intercourse because "in the ancient

world, virility and the physical parts that made it possible were accorded enormous

reverence," whereas women were the medium by which that process happened. BASKiN,



Of Pearls and Fish

This text creates a causal relationship between a husband's ability to give
pleasure to his wife and the subsequent sex of his legitimate children-and
in the process manages to devalue a female child as the result of an
unsatisfactory performance. To be sure, another tractate of the Talmud
states:

Rabbi Benjamin bar Yapat said in the name of R. Eleazar, all
who make themselves holy at intercourse will have male children,
as it is written, "For I the Lord am your God: you shall sanctify
yourselves and be holy, for I am holy. .. ." (Lev 11:44). 85

This Talmudic text makes it obvious that, just as the pursuit of holiness is
looked upon favorably, so, too, are male children preferred, and that this
result is directly related to the man's performance during sex.

Lest this explanation not be considered seriously, the rabbis even
tell about their personal experiences in order to verify the connection:

When Rabbi Ishma'el the son of Yose and Rabbi Ei'azar the son
of Rabbi Shim'on used to meet each other, an ox could walk
between them and not touch them. A certain matron said to them,
"Your [sons] are not yours." They said, "Their [penises] are
greater than ours." "If that is the case, even more so!" There are
those who say that this they said to her: "As the man, so is his
virility." And there are those who say that thus did they say to her:
"Love compresses the flesh."' 86

The discussion between the woman and the rabbis is about whether the
men's physical size, including both their girth and penis size, would
interfere with intercourse. While it could be argued that penis size is only
meant physically and not sexually, the men's argument connects the two:
sexual desire increases penis size and does not get in the way of successful
intercourse that both produces sons and relieves sexual tension. The
emphasis on heterosexuality comes from the need for a male and female in
marriage to achieve the optimum sexual satisfaction and to physically have

supra note 51, at 18. Of course, men need women to act as the vessel for developing
children, leading once more to the necessity of heterosexual marriage. The reality is that
without women, men cannot fulfill their procreative responsibilities, even if they supposedly
contribute more to that process.

85 BASKIN, supra note 51, at 20 (quoting Babylonian Talmud, Shevuot 18b). See
also HEBREW ENGLISH EDITION OF THE BABYLONIAN TALMuD: SHEVUOTH (Isidore Epstein
ed., A.E. Silverstone trans., Soncino Press 1987).

86 BOYARIN, supra note 37, at 95 (quoting Baba Metsia 84a). The text inserted into
Boyarin's translation are my corrections as a result of verification with BABA METSIA, supra
note 39. See also Baba Metsia 84a, Store of Holy Texts, http://wwwl.snunit.kl2.il/
kodesh/bavli/bbam084a.html 25 (last visited Oct. 16, 2005).

2006] 507



Columbia Journal of Gender and Law

legitimate children: "[J]ust as marriage has two essential functions, the
procreational and the relational, so the marital act has these two essential
functions. 87 According to Halakhah, that requires the union of a man and a
woman. Overall, the text devalues the women's orgasm by making it the
requirement through which a man acquires certain perks, rather than
asserting that her orgasm fulfills the requirement of onah.

Boyarin is correct to assert that, regarding onah, "by coding male
sexuality as a form of service to women, a mystifying protection of male
access to women's bodies is secured. 88 On the surface, it recognizes that
women, supposedly unable to initiate sex, need some form of legalized
access to sex. However, the husband's requirement to have sex a certain
number of times with his wife confirms the legality of his sexual access to
her, and in sources on divorce, is turned around: the woman is required to
have intercourse with her husband or risk being called a moredet, a

rebellious wife. 89 Halakhah bends over backwards to ensure the wife's
sexual access to her husband both to acknowledge the woman's need to
have her sexual desires satisfied and also to make certain that men have
legal access to intercourse within marriage. Interestingly, if a husband
refuses to have sex with his wife, the woman can approach the rabbinical
court and the rabbis can force him to divorce her. In contrast, if a man
makes the same complaint to the court, "a wife could be divorced without
her marriage settlement," or, if she would not agree to the divorce, the man
could request permission to divorce her anyway.90 In any case, onah only
partially ensures the right of the wife to have her sexual needs fulfilled; the
husband's right to satisfy his sexual desires is never in question.

C. Marriage in Judaism Today

Given this halakhic framework that promotes the relief of sexual
tension through heterosexual marriage, it is important to analyze how the
American Jewish movements have responded to these texts. Perhaps not
surprisingly, all but one of the four major movements advocate the
centrality of heterosexual marriage in Jewish tradition. Procreation within
the marital context makes Jewish continuity and existence possible. As
Rabbi Eugene Borowitz explains, "the imperiled situation of the Jewish
community as a minority [especially after the Holocaust] makes family

87 FELDMAN, supra note 37, at 129.

88 BOYARIN, supra note 39, at 171-72 n.58.

89 SHLOMO RISKIN, WOMEN AND JEWISH DIVORCE: THE REBELLIOUS WIFE, THE

AGUNAH AND THE RIGHT OF WOMEN TO INITIATE DIVORCE IN JEWISH LAW, A HALAKHIC

SOLUTION 7-9 (1989).

90 BASKIN, supra note 51, at 93.

[Vol. 15:2508



Of Pearls and Fish

unity a particularly important instrument of our survival." 91 For Orthodox,
Conservative, and Reform Judaism, the connection of human sexuality to
procreation in a sanctified male-female relationship serves to maintain the
existence of the Jewish people. Reconstructionist Judaism, on the other
hand, recognizes the equal legitimacy of heterosexual and homosexual
marriages and challenges the opinion of the other groups that this position
threatens Jewish continuity. This section examines these positions in order
to establish the foundation of these movements' attitudes toward sexuality,
which inform their stances on the modern issues of divorce and
homosexuality.

Orthodox Judaism promotes marriage for a number of reasons. First
and foremost, matrimony is a traditional Jewish institution: Halakhah
provides the basic marital framework through the ketubah,92 and Jews, with
few exceptions, are obligated or at least highly encouraged to follow those
dictates. This outline for marital life "include[s] the powerful group of laws
clustered around the concept of taharat mishpachah, "'family purity,' laws
of modesty, [and] restrictions on the social mixing of the sexes., 93 While
"[t]hey amounted to a discipline of self-imposed segregation, and they are
among the Jewish laws most at odds with the assumptions of a liberal, open
society,, 94 those laws have also been praised as maintaining the stability of
the Jewish family and providing a system of "boundaries in marital,
familial, and sexual relationships" for the members of a household that
promotes respect and rejuvenates monthly the couple's sex life. "
Underscoring all of this discourse, however, is the realization that the
"integrated [and religious] Jewish home" functions as "the best guarantee of
the survival of the Orthodox Jewish family," especially after the Holocaust
and with the advent of high levels of assimilation. 96 Orthodox Judaism
reinforces the traditional views of sexuality exemplified in the sacred texts
by connecting them to the perception of a modem Jewish need for an
increased religious population.

91 EUGENE BOROWITZ, EXPLORING JEWISH ETHICS: PAPERS ON COVENANTAL

RESPONSIBILITY 279 (1990).

92 Marriage contract. 10 ENCYCLOPEDIA JUDAICA, supra note 3, at 926.

93 JONATHAN SACKS, TRADITION IN AN UNTRADITIONAL AGE: ESSAYS ON MODERN
JEWISH THOUGHT 102 (1990).

94 Id.

95 Debra Renee Kaufman, Better the Devil You Know ... and Other Contemporary
Identity Narratives: Comparing Orthodox to Reform Judaism, in PLATFORMS AND PRAYER
BOOKS: THEOLOGICAL AND LITURGICAL PERSPECTIVES ON REFORM JUDAISM 221, 225 (Dana
Evan Kaplan ed., 2002).

96 Gershon Kranzler, The Changing Orthodox Jewish Family, in DIMENSIONS OF

ORTHODOX JUDAISM 359, 367 (Reuven P. Bulka ed., 1983).

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Columbia Journal of Gender and Law

Reform Judaism, usually at odds with Orthodoxy, generally agrees
with the primacy of marriage between a man and a woman in Jewish
tradition. The liberal attitude towards marriage generally emphasizes
marital sexuality and subsequent procreation as significant in Jewish
tradition.97 Indeed, heterosexuality is normative: "[M]arriage was [and is]
the only acceptable social setting for the sexual relationship."' 98 Unlike
Orthodox Judaism, however, the Reform movement acknowledges that the
traditional laws of Jewish marriage have sustained the "stability of the
Jewish marriage [that] was procured at the cost of subordinating a woman's
life to that of her husband" 99 and actively pursues a policy of equality
between spouses, sexual and otherwise. The emphasis on marriage is
coupled with serious revisions of unequal institutional qualities in a way

that leaves room for more liberal interpretations. 100 Only recently did
Reform Jews question the primacy of heterosexuality in their version of
Judaism and advocate for the acceptance of homosexual and non-traditional
families on the basis of a different approach to Jewish tradition. It appears
that experts of the Reform movement incorporate the more desirable values
that heterosexual marriage embodies and eschews those values expressed in
Halakhah with which they disagree.

Similarly, Conservative Judaism believes in the sole legitimacy of
heterosexual marriage. By currently disavowing the authenticity of
homosexual commitment while also pressing for a more equal relationship
between husband and wife, the Conservative Movement continues its
position between Orthodoxy and Reform Judaism with regard to Jewish
practice. Marriage between a man and a woman represents the ultimate
connection between people and God. In addition, "sexual experience is a
major source of pleasure and well-being for men and women, and its
successful functioning [only in marriage] is a proper objective."10' One
official publication on sexuality does not explicitly delineate characteristics
of male and female sexuality; rather the emphasis is on principles
appropriate for both sexes, like modesty, respect, and honesty. 102

97 BOROWITZ, supra note 91, at 265.

98 Id.

99 Id.

100 For instance, while the Reform marriage ceremony emphasizes the religious

nature of matrimony, "Reform Jews have generally discarded the use of Chupah, the

Aramaic Marriage Contract [which articulates sexual and other rights], and the custom of

breaking the glass at the end of the marriage ceremony... [and encouraged] the double-ring

ceremony." WILLIAM B. SILVERMAN, BASIC REFORM JuDAIsM 205 (1970).

101 ROBERT GORDIS, LOVE AND SEX: A MODERN JEWISH PERSPECTIVE 251 (1978).

102 ELLIOT N. DORFF, THIS IS MY BELOVED, THIS IS MY FRIEND: A RABBINIC

LETTER ON INTIMATE RELATIONS 9-11 (1996).

[Vol. 15:2510



Of Pearls and Fish

Concerning the promotion of equality in marriage, the Conservative
Movement adopted a new ketubah in 1987 that, to a limited extent, uses
more egalitarian language and protects the woman's right to a divorce
should the marriage dissolve. 103 Conservative Judaism also recognizes the
significant impact the family has on the continuation of Jewish tradition,
and, like Reform Judaism, has only just begun to challenge traditional
concepts of marriage in the movement. This middle-of-the-road position
emphasizes sexuality as a central feature of heterosexual marriage, but does
not go so far as to challenge the assumptions upon which this element is
based. With respect to the halakhic texts, then, the Conservative Movement
modernizes Jewish understandings of sexuality and sexual expression
without abandoning traditional parameters.

Although recently Orthodox, Conservative, and Reform Judaism
have initiated dialogue on the changing structure of the family, these Jewish
movements continue to discuss issues of sexuality within a "compulsory
heterosexuality" framework, that is, where heterosexuality is preferred and
supported by a society. 104 For instance, the recent changes in Reform
Judaism that permit gay and lesbian rabbis do not address the fundamental
preference of Jewish society for heterosexual marriage, because even
"appeals to [the traditional] passages constitute a major strategy in
contemporary efforts to enforce compulsory heterosexuality."'' 0 5 In contrast,
Reconstructionist Judaism has accorded equal respect to both heterosexual
and homosexual relationships by stating its support for equal access of
homosexuals to civil marriage. 106 This position subverts the religious
system by undermining the "modes of constructing and policing
relationships between gender roles, obligatory heterosexuality, and the

0'3 A New Ketubah Text (Elliot Dorff trans., 1987), in PROCEEDINGS OF THE

COMMITTEE ON JEWISH LAW AND STANDARDS OF THE CONSERVATIVE MOVEMENT: 1986-1990,
at 241,241-43 (2001) (The couple agrees that, "should either contemplate dissolution of their
marriage, or following dissolution of their marriage in the civil courts, each may summon the
other to the Beit Din of the Rabbinical Assembly and the Jewish Theological Seminary of
America, or its representative, and that each will abide by its instructions so that throughout
life each will be able to live according to the laws of the Torah.").

1°4Judith Plaskow defines this paradigm as a "complex web of ideologies and
institutions through which people learn and are made to be heterosexual." Judith Plaskow,
Sexual Orientation and Human Rights: A Progressive Jewish Perspective, in SEXUAL
ORIENTATION & HUMAN RIGHTS IN AMERICAN RELIGIOUS DISCOURSE 29, 36 (Saul M. Olyan
& Martha C. Nussbaum eds., 1998).

105 Id. at 38.

106 RECONSTRUCTIONIST RABBINICAL ASSOCIATION, RESOLUTION IN SUPPORT OF

CIVIL MARRIAGE FOR SAME-SEX COUPLES (2004), available at http://www.therra.org/
resolution-Mar2004.htm [hereinafter RRA Resolution].

2006]



Columbia Journal of Gender and Law

constraint of female sexuality."' 17 Reconstructionist Judaism thus stands in
opposition to the other movements.10

IH. THE ROLE OF SEXUALITY IN JEWISH DIVORCE

As stated in Part I, this section analyzes how halakhic conceptions
of sexuality, and more specifically female sexuality, have influenced the
development of Jewish divorce law. It also analyzes the responses of the
modem American Jewish movements to the legal inequalities for women
inherent in the legal system of Jewish divorce. Legally, marriage in the
Jewish tradition formalizes a man's acquisition of rights to a woman's
sexuality. Divorce undoes that process by allowing him to repudiate his
rights to sexual intercourse with his wife. The older halakhic texts set out,
and today's legal authorities maintain, a halakhic framework that
establishes and dissolves this contractual association between husband and
wife. Only a man traditionally has the legal power to effectuate and
terminate this contract. The rabbis recognize marriage as the proper forum
for the sexual expression of men and women, deriving the legitimacy of
matrimony from their opinions about heterosexual desire. However, despite
mandating marriage for both sexes, it is women who are left without any
meaningful exit from the contract.

This section argues that the husband's official disavowal of the
rights to sexual intercourse with his wife forms the basis of the process of
divorce. By examining the provisions regarding sexuality that the husband
agrees to in the ketubah, this section describes the requirements for a
divorce. It also explores the circumstances, set out by the rabbis, whereby
divorce is proper or even encouraged. These halakhic texts, combined with
an analysis of the stipulations of the get,10 9 provide further evidence for the
centrality of sexuality in divorce. Because only a man can bring about a
divorce, his refusal to grant the get has the added effect of precluding the
woman's assumption of rights to her own sexuality. A woman who has not
yet received a get from her husband is called an agunah, literally a chained
woman, because she is still legally married to this man and is not free to
remarry. In modem times, Jewish movements have realized that this
disparity causes immense suffering on the part of women who do not have
the freedom to move on with their lives after the factual termination of their
marriages. Reform, Reconstructionist, Conservative, and Orthodox legal
authorities advocate different solutions to remedy the situation of the
chained woman. However, their suggestions do not resolve the central

107 Plaskow, supra note 104, at 37.

108 Indeed, the Reconstructionist approach to marital sexuality greatly influences

the movement's positions on the issues discussed infra.

109 Writ of divorce; the plural is gittim.

[Vol. 15:2



Of Pearls and Fish

difficulty. The unjust situation derives from the ancient locations of
sexuality in marriage and divorce contracts, and it is this problem, in
conjunction with the man's unilateral control, that must be solved.

A. The Marriage Contract

While there are sacred elements to Jewish matrimony, a man and a
woman formally marry through contract. The earliest Jewish legal traditions
on marriage "categoriz[e] it as a commercial transaction by which sexual
chattel is acquired." 110 The Hebrew Bible refers to a bride price, or mohar:
"If a man seduces a virgin [betulah; sometimes understood as a young
woman] who is not engaged and lies with her, he will marry her for the
marriage/bride price, as a wife."'' Lest one think that this transaction is
only a fine for this particular case of his sleeping with the woman, the verse
continues: "If her father really refuses to give her to him, he will pay the
marriage/bride price of a virgin. ' ' 

12 When the young woman is no longer a
virgin, ostensibly her father does not receive the bride price of a virgin and
loses potential income. Therefore, if a man has sex with a woman and
refuses to marry her, he must pay damages that are equivalent to the
financial amount her father would have received had she married as a
virgin. While it is not certain what the actual amount of the bride price was,
as it depended on the sexual status of the woman about to be married, it is
clear that when money changed hands, the transaction, that is, the man's
acquisition of the woman, was complete.

The Mishnah upholds this method of financial exchange to ensure
the legal formality of the marriage. According to Judith Wegner, the rabbis

focus[ed] on such matters as the impact of virginity on bride-
price, circumstances when a man can or cannot expect his bride
to be a virgin, the bridegroom's right to redress if his bride is not
intact, and the father's right to financial compensation from a
man who violates his minor daughter. " 3

Regarding the third specification, Wegner notes that "having paid for his
bride's virginity, an aggrieved bridegroom, just as any buyer of goods that
fail to meet specifications, can bring suit."' 14 These general topics, however,

1 ' RACHEL ADLER, ENGENDERING JUDAISM: AN INCLUSIVE THEOLOGY AND ETHICS

172 (1998).

.. Exodus 22:15 (Biblia Hebraica Stuttgartensia, supra note 48).

112 Id.

113 JUDITH ROMNEY WEGNER, CHATTEL OR PERSON? THE STATUS OF WOMEN IN THE

MISHNAH 20 (1998).

2006] 513



514 Columbia Journal of Gender and Law [Vol. 15:2

do not evoke the directness of the comparison of women to property.
Mishnah Kiddushin 1 directly compares the woman to objects that can be
owned:

(1) The woman is acquired in three ways and acquires herself [or
her autonomy] in two ways. She can be acquired by money, by
deed, and by sexual intercourse. . . . She acquires herself
[autonomy] by a get and the death of her husband [literally
master].... (2) A Hebrew slave is acquired by money or by deed
and acquires himself by years [of working] or by the Jubilee or
by [paying] his reduced price [that is, buying his freedom].... (3)
A Canaanite slave is acquired by money, by deed, or by
usucaption.... (5) Mortgaged property is acquired by money, by
deed, or by usucaption .... 115

Before discussing the resemblance of the treatment of women to
that of property, it is important to point out that the language for the wife
and husband in this passage is not parallel and suggests a power differential.
The woman is called isha, but the man is not called ish. Instead, "the word
for husband is ba'al, the general term for an owner, master, possessor of
property, bearer of responsibility, or practitioner of skill." 116 This
terminology points to the legally uneven relationship: the man owns the
woman's sexuality. She can only take possession of her own sexuality
through the get or her husband's death. Other aspects of the Mishnah
reiterate that unequal relationship." 7

114 Id. at 22.

115 See HEBREW ENGLISH EDITION OF THE BABYLONiAN TALMUD: KIDDUSHIN 1:1-5

(Isidore Epstein ed., H. Freedman trans., Soncino Press 1990). See also Kiddushin, Store of
Holy Texts, http://wwwl.snunit.kl2.il/kodesh/mishna/kidu01.html (last visited Oct. 16,
2005).

116 ADLER, supra note 110, at 171.

117 Wegner gives further contours to the Mishnah's treatment of the wife as

property:

First the [sages] use the same technical term q-n-y ('to acquire ownership') as for other
forms of property. Second, the same three modes of acquisition apply to wife, Canaanite
slave, and real property .... Intercourse is the specific form of usucaption that applies to a
wife. Third, after setting out the list, the Mishnah's framers drop the subject of property;
espousal of wives occupies the entire tractate. Obviously the sages list all these kinds of
property along with the wife to suggest both a formal and a substantive analogy.between
acquiring a wife and acquiring chattel.

WEGNER, supra note 113, at 43. Wegner cautions that "the inclusion of the wife
does not necessarily imply that she is the husband's property in all respects," seeing as how a
wife retains her independence with regard to the property she brings into the marriage. Id.
The ownership is specific to her sexuality; the man does not own her but sexual access to her
body. The right to sexual intercourse with his wife regulates the expression of his sexual



Of Pearls and Fish

The Gemara of the Babylonian Talmud continues this trend of
considering the woman's sexuality as a commodity in its commentary on
the above Mishnah, Mishnah Kiddushin 1.118 The rabbis of this time period
call the process through which formal acquisition occurs kinyan. According
to Adler, "monetary acquisition (kinyan kesej) is ...the one approved
method [in the Talmud] for appropriating wives," although usucaption does
not necessarily invalidate the marriage. 119 However, Moshe Meiselman
contends that there are "two types of contracts: the kinyan issur, a contract
whose basic purpose is to effect a change in personal or ritual status, and
the kinyan mamon, a contract whose basic purpose is to effect a monetary
change." 120 Marriage, in his opinion, is the former, rather than the latter; the
physical act of giving of an object marks the change in personal status. 121

Adler disagrees, stating that, "while the purchase of the bride may have
dwindled to a mere formality in the rabbinic transformation of marriage, her
acquisition is no formality."'122 Adler argues that the distinctions between
types of kinyan are irrelevant, as "[w]hat all the legally acceptable
transactions have in common is that they are unilateral acts .. . [that,
according to the laws in Kiddushin,] the man must take, and the woman
must be taken.' 23 Certainly the woman's status is changed from unmarried
to married. However, it is impossible to ignore that her personal
transformation is effected through a financial transaction.

Another talmudic innovation delays payment of the monetary
amount. The kinyan still occurs in a symbolic form by representing the real
price, but the actual amount stipulated in the ketubah is not transferred. In
the Babylonian Talmud, Rabbi Judah explains in Ketuboth 82b: "At first
they wrote for a virgin 200 zuz and for a widow 100 but the men grew old
and did not marry women [because they could not afford to] until Simon
ben Shetah enacted that all the groom's property is responsible for the
ketubah."' 124 As Judith Hauptman points out, though, "once the ketubah was

desire; without this structure, as discussed supra, the rabbis fear the man will seek out other,
though certainly heterosexual, outlets for satisfying his desire.

118 ADLER, supra note 110, at 174.

119 Id.

120 MOSHE MEISELMAN, JEWISH WOMAN IN JEWISH LAW 96 (1978) (citing Hidushei

ha-Ramban to Kiddushin 16a).

121 Id. at 96-97.

122 ADLER, supra note 110, at 176.

123 Id.

124 Ketuboth 82a, supra note 31. See also Ketuboth 30, Store of Holy Texts,

http://wwwl.snunit.k12.il/kodesh/bavli/ctub082b.html (last visited Oct. 16, 2005).

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516 Columbia Journal of Gender and Law [Vol. 15:2

transformed into ... a way of providing a woman with some assets to tide
her over into her next marriage, then ... as a deferred payment, [it] was no
longer a gauge of her sexual intactness." 125 Still, the marriage transferred
rights to the woman's sexuality. While it is now more accurately a
"negotiated relationship between a woman who is subordinate and a man
who is dominant," the ketubah nonetheless affirms the principle of
kinyan.

126

Today, there are two phases to the agreement: kiddushin and
nissu 'in. The former, also known as 'erusin, "sufficed to make the man and
the woman legally bound so that sexual connection by her with another man
was adultery punishable as such, and to dissolve the bond a bill of divorce
was required."' 27 This method of betrothal officially transfers the rights to
woman's sexuality to her future husband. Moreover, kiddushin literally
means sanctification, which is "a major rabbinic means of drawing
boundaries and demarcations, a legal and ritual creation of the universe out
of undifferentiated chaos." 28 In this way, marriage essentially sets aside a
woman for a particular man. The marriage is formalized when nissu'in
occurs, i.e., when the bride goes to her new husband's home. Interestingly,
nissu'in is also called "taking" or likkuhin,129 which implies male control;

125 JUDITH HAUPTMAN, REREADING THE RABBIS: A WOMAN'S VOICE 66 (1998).

126 Id. at 74. Several centuries later, Maimonides codified this process of

acquisition. In Hilkhot Ishut 1:3, he explains:

Once a woman is acquired and thus betrothed, even if she has not had intercourse and has
not entered her husband's house, she is still the wife of a man [a married woman], and one,
who is not her husband, who has intercourse with her, is liable for the death penalty from the
bet din [rabbinical court], and if her husband wants to divorce her, she needs a get.

MISHNEH TORAH: HILKHOT ISHUT, supra note 41, at 1:3. See also Mishneh Torah
Hilkhot Ishut 1:3, Store of Holy Texts, http://wwwl.snunit.kl2.il/kodesh/mtr/aisu00l.html
(last visited Oct. 16, 2005).

The Rambam uses the same language for acquisition and betrothal. Because the
infraction is sexual, it is the act of intercourse between a man and a woman betrothed to
another man which presumably violates her husband's rights. Of course, Maimonides
recognizes that, through the ketubah, the man is obligated to fulfill the requirement of onah,
but even that entitlement affirms the man's right to have sexual intercourse with her. Overall
"the conception of marriage as a unilateral acquisition of property, analogous to the
acquisition of slaves, animals, or fields, rather than embodying commitments on the part of
two participants, dominates legal thinking in rabbinic texts" throughout the centuries.
ADLER, supra note 110, at 157.

127 GEORGE HOROWITZ, THE SPIRIT OF JEWISH LAW: A BRIEF ACCOUNT OF BIBLICAL

AND RABBINICAL JURISPRUDENCE WITH A SPECIAL NOTE ON JEWISH LAW AND THE STATE OF

ISRAEL 256 (1953).

128 ADLER, supra note 1 10, at 172.

129 HOROWITZ, supra note 127, at 265.



Of Pearls and Fish

the man literally takes the woman home to become his wife.130 It is with this
framework in mind that this Article presents the halakhic texts on divorce.

B. Halakhic Texts on Divorce

The rabbinic process for divorce essentially reverses the marital
contract. The man gives a get, specifically written for this transaction, to his
former wife in front of witnesses and members of the beit din. 131

Deuteronomy 24:1 serves as the biblical basis for this procedure: "[I]f a
man takes a wife and marries her, but she does not find favor in his eyes-
because he finds in her something sexually unappealing-he writes for her
a document of cutting off/divorce and gives it into her hands and sends her
from his house."1 32 Because, in this verse, the man "takes" the wife, the
rabbis interpret that action to mean that only a man can affect the kiddushin
at the beginning of the marriage. Likewise, because it says "he writes for
her," it follows that the husband is the only one who can end the
relationship.

The text of the get, established in the Mishnah, explicitly releases
the rights to the woman's sexuality. Mishnah Gittin 9:3 states: "[T]he body
of the get says you are permitted to every man . . . that you may go and
marry any man you wish. 133 With the ketubah, the man legally acquires
sexual access to his wife; with the get, he relinquishes that access by
permitting her to remarry and to have sex with her new husband. In fact, the
man is forbidden to stipulate any conditions on this right. Otherwise, he
would not actually surrender his access to her. This failure to surrender
access infringes upon both the woman's right to choose another husband
and also her future husband's right to her sexuality. Without the get, the
woman is still married to her husband; he continues to be the only man with
whom she may have sex and with whom she may have children. Any sexual
relationship she has with another man is adulterous, and any child from that
liaison is a mamzer.134

130 Today, this "taking" is symbolized by the bridal canopy, the chuppah, and the

yichud, the time the couple spends alone immediately after the marriage.

'3' Rabbinical court. Generally, the rabbinical court has three rabbis.

132 Deuteronomy 24:1 (Biblica Hebraica Stuttgartensia, supra note 48).

133 Mishnah Gittin 9:3. (The Schottenstein Edition) (citing Yisroel Simcha Schorr
& Hersh Goldwurm eds., Mesora Publications, Ltd. 1993). See also Mishnah Gittin 9:3,
Store of Holy Texts, http://wwwl.snunit.kl2.il/kodesh/mishna/gitiO9.html (last visited Oct.
16, 2005).

'34 Technical term for illegitimate. 11 ENCYCLOPEDIA JUDAICA, supra note 3, at

5172006]



518 Columbia Journal of Gender and Law [Vol. 15:2

The Mishnah sets out acceptable reasons and avenues for divorce
for both husband and wife. Regarding Mishnah Gittin 9:10, Judith Wegner
explains that "the common denominator is that all three [rabbis'] views treat
the wife as chattel" and uphold divorce as the "disposition of a man's
exclusive right to a woman's sexual function."135 Each authority in this text
defines the husband's rights with regard to his wife slightly differently.
Wegner describes each tannaitic position:

The Shammaites perceive the essence of marriage as a husband's
exclusive right to his wife's sexuality; so he can divorce only if
some other man has had sexual relations with her. This approach
treats the wife as chattel when her sexual function is in issue, but
it protects her when she is without moral fault. The school of
Hillel, by contrast, permits her husband to divorce her for the
least infraction .... Her role is to serve him generally .... Aqiba
goes further still; he treats the wife as no person at all, permitting
the husband to discard her without even the flimsiest excuse.136

The husband essentially has many legitimate reasons for divorce
available to him, and the possibilities reflect his status as an unsatisfied
purchaser. In addition, there are instances when the rabbis encourage the
man to exercise his power and divorce his wife. Rabbi Meir, in Tosefta
Sotah 5, criticizes

the conduct of a wicked man [who] is untroubled by his wife's
going out with hair uncovered or a sleeveless blouse, being
overly familiar with her male or female servants, going out to
spin in the market place, bathing and acting frivolously with other

137
men ....

He suggests that "in such cases it is a mitzvah to divorce her." 38 Those
actions by the wife violate Dat Yehudit, the proper behavior of a religious
woman, because each incident has sexual overtones. The rabbis consider
hair and uncovered arms liable to arouse, while intimate contact with other
men suggests promiscuity. Interestingly, Getsel Ellinson explains that the
fear of the woman spinning in public is also sexual because "she holds the
thread to draw attention to her private parts." 139 If the wife obstinately

135 WEGNER, supra note 113, at 47.

136 
id.

137 ELLINSON, supra note 23, at 125-26.

138 Id. at 126.

139 Id. at 127. This is ironic considering that women skilled in spinning and

weaving were highly regarded, especially since their work likely improved their families'
financial status.



Of Pearls and Fish

refuses to accept the husband's divorce, the man simply receives permission
from the beit din or, according to some traditions, from one hundred rabbis,
and he could remarry without giving the get. Access to his sexuality was not
at stake; with rabbinic approval, he was free to remarry.

In contrast to her husband, a wife can only ask for a divorce on four
grounds under Halakhah:

(1) When her husband is afflicted by physical conditions or
undertakes an occupation deemed unendurable for the wife
(2) When her husband violates or neglects his marital obligations
(3) When there is sexual incompatibility or
[4] when there has been wife beating. 140

All of these rationales have sexual implications. The woman's legitimate
complaints were limited to protests over her husband's sexual performance
or problems with her sexual desire for him. The rabbis had compassion for
the woman who was not sexually attracted to her husband. For example,
Maimonides rules:

A woman who refuses to have intercourse with her husband is
called moredet [rebellious]. One asks for her reason. If she says,
'I dislike him and am unable to have sexual relations with him
fireely,' one compels the husband to divorce her. She is not like a
prisoner to live with one whom she detests.141

It is important to note that the court can only "compel" the husband to give
her the get, even if she requests it for sexual reasons. The husband is the
only one who can terminate the marriage, and he must do it willingly. Such
willingness could mean that the husband freely terminated the marriage or,
as Maimonides permitted, that an injunction allowed others to beat the man
until he agreed.142 Without a get, the woman cannot lawfully remarry and
have legitimate children.

Later authorities, however, questioned whether even these reasons
are valid: is the woman believable when she makes claims about her sex
life? In the thirteenth century, Rabbi Shlomo ben Aderet worried that "such
a law would make it possible for a woman to form a liaison with another

140 ADRIENNE BAKER, THE JEWISH WOMAN IN CONTEMPORARY SOCIETY:

TRANSITIONS AND TRADITIONS 55 (1993).

141 MIsHNEH TORAH: HILKHOT ISHUT 14:8 (Moshe ben Shaltiel ed., Ma'or

Publication Society 1975); ELIEZER BERKOVITS, JEWISH WOMEN IN TIME AND TORAH 49
(1990).

142 MISHNEH TORAH: GERUSHIN 2:20 (Moshe ben Shaltiel ed., Ma'or Publication

Society 1975).

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man and then demand that her husband be compelled to divorce her."'143 An
illicit sexual liaison threatens her husband's claim to her that, in turn, is the
basic foundation for the legal institution of marriage. The Tosafot 14 4 and
other Halakhists, however, decide her claim on the basis of evidence; that
is, rather than determine that she is not sexually involved with another man,
they investigate whether her complaint of sexual dissatisfaction is true. 145

Her current husband's right to her sexuality overrides the other factors.
Overall, "whenever a man owns, acquires, or disposes of a

woman's sexuality, the law treats the woman as chattel for that purpose,"
especially "for rules governing marriage [and] divorce.' 46 With regard to
terminating the marriage, the man acts unilaterally, but the woman is
dependent on her husband to relinquish his legal right to her sexuality. If he
refuses, she is an agunah. She is without control over her own sexuality and
unable to remarry. The ancient laws for divorce created this inequitable
legal status for women and, as shown below, the contemporary Jewish
movements maintain the possibility of this status in modem Jewish law.

1. A Contemporary Halakhic Problem: the Agunah

Today, the situation most likely to cause a woman to become an
agunah is the husband's flat-out refusal, either out of spite or in anticipation
of monetary gain, to give his wife a get. All of the modem Jewish
movements acknowledge that this state of affairs negatively impacts the
woman's quality of life; she is unable to move on from the failed marriage
and begin life anew. On the whole, though, their respective solutions do not
address the issue of sexuality, which constitutes the major problem with
Jewish divorce. This failure is a problem because the root cause of the
agunah's unfortunate situation comes from the quasi-ownership of the
woman's sexuality and the inability (or unwillingness) of the community or
its leaders to change the laws.

On the least complicated level, Reform Judaism in America "tum[s]
the whole business over to civil authorities" by the "declar[ation] that civil
divorce alone suffice[s] to dissolve its marriages." 147 The Reform
Movement repudiates the halakhic system of divorce to negate the
inequalities in the process, namely, those problems that derive from the
husband's sole ability to terminate marriage. This course of action follows

143 BERKOVITS, supra note 141, at 50. This is also known as the Rashba.

'44 15 ENCYCLOPEDIA JUDAICA, supra note 3, at 1278.

145 BERKOVITS, supra note 141, at 50 (citing Ketubot 63b s.v, abal amra). See also
KETUBOT, supra note 31.

146 WEGNER, supra note 113, at 45.

147 ADLER, supra note 110, at 201.

520 [Vol. 15:2



Of Pearls and Fish

essentially a similar pattern as the Reform attitude to marriage, in which
Reform rabbis "permit an exchange of rings and vows by the two parties, in
contrast to Talmudic law,"'148 thereby making the marriage more equal as
well. This approach to marriage and divorce, however, only works when
Jewish laws are not seen as externally binding. Other Jewish movements
continue to view the woman who uses this approach as an adulteress and
any children from that type of adulterous relationship as mamzerim. The
Reform Movement thus rejects the approach of the halakhic texts when
Halakhah undermines equality.

On the other hand, Reconstructionism combines the traditional
framework for marriage and divorce with a better understanding of the role
of sexuality in the process. In a case with an agunah, according to Blu
Greenberg, "the Reconstructionist beit din simply will give her a shtar
piturin, a document that declares her free to remarry, even though she has
no get, nor has her marriage been annulled.' ' 149 This approach recognizes
that the consequences of a woman remarrying without a get threaten Jewish
stability by driving people away from Judaism. The stigma placed on her
and her children makes it difficult for her to remarry according to Jewish
tradition, thus discouraging her from remaining a member of the Jewish
community. Significantly, the shtar peturin reinforces the court's right to
grant the woman the ability to remarry. The beit din's control of her
sexuality is taken away from her husband, rather than being recognized as
always having been her own. The woman's sexuality is still treated like a
commodity, but in this instance, the court exercises compassion.

The Conservative Movement, with its emphasis on maintaining
Jewish legal tradition, has suggested three possible solutions to the agunah
problem. In the 1950s, Rabbi Saul Lieberman advocated the introduction of
a clause into the ketubah that would serve as a contractual prenuptial
agreement. It stipulated that, if the couple divorced, the husband and wife
would go before an official Conservative beit din and "authorize[] the b[e]it
din to impose such terms of compensation as it may see fit for failure to
respond to its summons." 150 There were several problems with the
Lieberman clause, as it came to be known.' 5 ' First, though "there was an
effort to enforce [these] rules" in secular American courts, such clauses
were found "to run afoul of the principle of separation of church and

148 RUDAVSKY, supra note 9, at 295.

149 BLU GREENBERG, ON WOMEN AND JUDAISM: A VIEW FROM TRADITION 135

(1998).

150 IRVING A. BREITOWITZ, BETWEEN CIVIL AND RELIGIOUS LAW: THE PLIGHT OF

THE AGuNAH IN AMERICAN SOCIETY 96-97 (1993).

151 Id.

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Columbia Journal of Gender and Law

state."' 152 Also, it "was rejected by the Orthodox as being halakhically
invalid because of [the] indeterminate nature" of its stipulations. 53

Next, the Conservative Movement tried the "Berkovits t'nai in
1968" that stated that "if our marriage should end in a civil divorce and
within six months thereafter I give you a get, our marriage will remain valid
and binding; if, however, six months have passed and I do not give you a
get, then our marriage will have been null and void."'154 This was not
acceptable to traditionalist authorities because "marriage is an unconditional
commitment and conditional marriages and divorces thereby are rendered
invalid by consummation of the marriage. ' 55 Most recently, Conservative
rabbis have been in favor of a solution that recognizes the power of the
rabbinical courts to give legitimacy to marriage in the first place, and "if the
rabbis remove their sanction because of certain conditions no longer
operating, the original act of kiddushin (betrothal) is voided,"'156 meaning
the marriage was not valid and the woman does not need a get. Again the
Orthodox movement disallows this option "on the grounds that the power to
annul marriages was used only in limited instances and in post-talmudic
times the power to annul marriages has been constricted.' 57 Here, too, the
Conservative Movement does not challenge the traditional framework that
treats woman's sexuality as a commodity. Its methodologies address the
inequalities of divorce by instituting procedures undertaken by the husband
and by the rabbinical court; the man must come before the beit din or the
court acts to help the woman. The woman lacks legal control over her
sexuality until she receives the writ of divorce.

With a similar approach as Conservative Judaism, Orthodoxy does
not challenge the underlying halakhic framework of marriage and divorce;
Halakhah, after all, is immutable in their authorities' opinion. The Orthodox
Movement has looked for ways to increase the power of their rabbinical
courts, again using the beit din to assert its authority over the marriage and
essentially convince the husband to give the get. According to Seymour
Cohen,

152 Seymour J. Cohen, The United States Constitution and the Jewish Community:

The Recalcitrant Husband and the Chained Woman (Agunah), in 21 JEWISH LAW
ASSOCIATION STUDIES VIII: THE JERUSALEM 1994 CONFERENCE 25 (Edward A. Goldman ed.,
1996).

153 GREENBERG, supra note 149, at 136.

154 Id. at 136-37.

155 Id. at 137 (citing MIESELMAN, supra note 110, at 103-08).

156 Id.

117 Id. at 138.

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Of Pearls and Fish

the Rabbinical Council of America [a national Orthodox
rabbinical organization] has urged its membership to use ... the
premarital agreement to be signed by both husband- and wife-to-
be in which the husband agrees to [financially] maintain and
support his wife [by providing a certain amount of money] until
the marriage has been terminated. 5 '

In addition, "both parties stipulate that, in case of disagreement, they agree
to have their dispute adjudicated by a specified person acceptable to both
parties," ostensibly an Orthodox beit din. 159 This prenuptial agreement
supposedly makes the halakhic stipulations for marriage and divorce,
including the husband's obligation to support his wife financially and his
responsibility to give her a get when the marriage is terminated, legally
enforceable in the secular courts. Sexuality is simply not an issue; perhaps
this attitude reflects the Orthodox opinion that kinyan for marriage is really
"ritualistic."' 60

It is impossible to overlook the fact that the halakhic texts on
marriage and divorce treat a woman's sexuality as her husband's property.
The solutions proposed by the four modem movements of Judaism have
tried to address the legal inequalities created by the husband's unilateral
power to effect divorce, but they have ignored the issue of what property he
commands. Certainly their efforts should be admired and regarded as
necessary. Nonetheless, "[w]here women's sexuality is seen as an object to
be possessed, and sexuality is confined to heterosexual marriage and
perceived as an impulse that can take possession of the self, the central
issues surrounding sexuality will necessarily be issues of control.' 161 These
issues of control are the result of the underlying fact that marriage and
divorce involve the legal transfer of a woman's sexuality. When the
solution persists in regarding woman's sexuality as a commodity, the
modem Jewish movements in effect maintain the inequalities because the
woman must still rely on the beit din's benevolence for her sexual freedom.
It is crucial to resolve this issue in a way that treats each woman as a
complete person, rather than property.

158 Cohen, supra note 152, at 35.

159 Id.

160 MEISELMAN, supra note 120, at 96.

161 Judith Plaskow, Toward a New Theology of Sexuality, in TWICE BLESSED: ON

BEING LESBIAN OR GAY AND JEWISH 141, 142 (Christie Balka & Andy Rose eds., 1989).

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Columbia Journal of Gender and Law

IV. THE ROLE OF TRADITIONAL CONSTRUCTIONS OF
SEXUALITY IN MODERN JEWISH APPROACHES TO

HOMOSEXUALITY

By calling into question the very substance of halakhic texts, GLBT
Jews challenge the heart of traditional Jewish gender expectations: Jewish
man meets Jewish woman, they establish a middle-class home, and they
have at least two children who grow up to marry Jews of the opposite sex
and have their own children. Jewish society's inherent privileging of that
ideal does not allow GLBT Jews full access to and support within Jewish
communal life. This tension becomes all the more complex due to the great
esteem in which many Jews, including GLBT Jews, hold their legal and
communal traditions. This Part begins with an analysis of several Jewish
texts that address homosexuality, 162 either halakhically or socially. It then
explains how the modem movements of Judaism use those writings in their
conceptions of homosexuality and of the roles of GLBT Jews in their
communities. It examines significant passages on homosexuality in order to
illuminate the major difficulties homosexuality poses to the normative
assumptions underlying the Jewish legal system's regulation of sexuality.
Because modem arguments are based on interpretations of halakhic texts, it
is important to identify and explain how these legal materials functioned in
their own historical and philosophical contexts. It is with knowledge of this
historical framework that modem Jewish movements evaluate the claims of
GLBT Jews, approaching the issue from distinct theological positions
concerning the authority of sacred works for contemporary Jews. At stake is
an understanding of how shifting social conceptions of sexuality can affect
the interpretation and implementation of Jewish law as well as an awareness
of the impact Jewish legal decisions about homosexuality can have on the
lives of GLBT Jews.

A. Male Homosexual Desire

The main proscription against male homoerotic sex comes from the
Hebrew Bible, Leviticus 18:22:

162 As discussed in Part II, supra, the halakhic materials presume a heterosexual

norm in sexual relationships. However, Jewish texts on homosexuality usually address
prohibitions on homoerotic behavior, not relationships. It is important to recognize that the
ancient works never address "homosexuality [as] a sexual orientation"; rather, the primary
concern is with certain sexual practices. Rodney Mariner, The Jewish Homosexual and the
Halakhic Tradition: A Suitable Case for Treatment, in JEWISH EXPLORATIONS, supra note 38,
at 83, 85. In the past, homosexual intercourse was seen as deviation from that standard
model of behavior, and therefore not within the rabbis' contemplation as a category that
required regulation. This analysis assumes that some Greco-Roman men and women, Jewish
and non-Jewish, did partake in homosexual activities; the rabbis of that era would hardly
condemn what was not occurring.

[Vol. 15:2



2006] Of Pearls and Fish 525

With a male you are not to lie (after the manner of) lying with a
woman, it is an abomination [to'evah]", and 20:13, "A man who
lies with a male (as one) lies with a woman-abomination
[to'evah] have the two of them done, they are to be put-to-death,
yes death, their bloodguilt is upon them! 163

The biblical description of homosexual sex, "after the manner of lying with
a woman," represents a standard male method of expressing sexual desire
through intercourse. Forbidden homosexual intercourse stands in opposition
to legitimate heterosexual intercourse. Surrounding these verses are lines
about other prohibited sexual contact including incest, bestiality, and
intercourse with a menstruant, which constitute a group of prohibitions
collectively called arayot. The Bible does not mention female homosexual
contact; only male homoerotic activity triggers the death penalty, 164 in part
because the verses surrounding the prohibitions are solely addressed to
men.

The biblical authors set up homoerotic and nonconsensual sexual
acts in opposition to heterosexual, legal sex in order to define and maintain
a behavioral and cultural line between Israelite society and the surrounding
peoples. The problem with homosexual sex is that, in Rachel Adler's words,
it "violat[es] the categories and statutes that define the various social
actors." 165 Contemporary expressions of sexuality could be understood
within a framework different from the biblical perspective because, of
course, the historical context has evolved.

163 EVERETT Fox, THE FIVE BOOKS OF MOSES: GENESIS, EXODUS, LEVITICUS,

NUMBERS, DEUTERONOMY 599, 607 (1995).

'A The prescription for capital punishment does not mean, however, that the death
penalty was implemented in Biblical times for homosexual sex or even for other activities
called to 'evah (abomination).

165 ADLER, supra note 110, at 129. Several scholars have expanded on this
approach. Rebecca Alpert suggests that "to 'evah is actually a technical term used to refer to
a forbidden idolatrous act [and] that the references in Leviticus are specific to cultic practices
of homosexuality, and not sexual relationships as we know them today." Rebecca T. Alpert,
In God's Image: Coming to Terms with Leviticus, in TwICE BLESSED, supra note 161, at 52,
68. Rodney Mariner argues that the contexts of these Biblical verses point to "non-
consensual sodomy" or "where 'consent' ... is at best dubious," inferring from this that the
proscriptions do not address loving homosexual relationships but rather coercive sexual acts.
Mariner, supra note 162, at 86-87. Phyllis Bird argues that that to'evah "belongs to the
language of separation and distinction from the nations that came to expression during the
exile and was applied retroactively to earlier stages of Israelite history." Phyllis A. Bird, The
Bible in Christian Ethical Deliberation concerning Homosexuality: Old Testament
Contributions, in HOMOSEXUALITY, SCIENCE, AND THE "PLAIN SENSE" OF SCRIPTURE 142, 152
(David L. Balch ed., 2000). The biblical approach to homosexuality actually reflects ancient
Near Eastern attitudes attested in the archaeological record, especially in Egyptian and
Mesopotamian sources. Id. at 156-57.



Columbia Journal of Gender and Law

The rabbis were most concerned about male homosexual activity
because it involved penetration. This action violates the rabbinic conception
of heterosexual intercourse that "an active male penetrates a passive
female" and means that the penetrated male "sacrifice[d] [his] 'maleness'
and acted female. 66 Indeed, "to penetrate was to reaffirm, perhaps even to
assert, this [male] power . . . [whereas,] to be penetrated was perceived as
being as women were perceived, that is, weak and dominated." 167

Additionally, homoerotic intercourse not only defied gender expectations
but also defied the procreative paradigm. The earliest examples illustrate
the developing legitimacy of that claim: Pseudo-Phocylides, an Alexandrian
Jew from around the first century, argues that "anal intercourse between
men is 'against nature' and Josephus criticizes homosexual activity as
causing the "confusion of sexual roles."'168 These positions reflect Greek
and Roman conceptions of sexuality, and suggest that Greco-Roman
influence was later incorporated into rabbinic thought. 169

Male homoerotic activity so distorted the expected gender roles for
sexual intercourse that even the potential for erotic contact between men
was troublesome. The rabbis recognized that a male could sexually arouse
and could be sexually aroused by another male. In Mishnah Kiddushin 4:14,
for example, Rabbi Yehudah forbids two bachelors from sleeping
underneath the same blanket. 170 The proscription presumably could be
intended to prevent unintentional sexual arousal, which could culminate in
homosexual intercourse. However, in the Mishnah Torah,171 Maimonides,
while extensively referring to this scenario, cites Hilkhot Issurei Bi 'ah, 22:2
(the Laws of Forbidden Sexual Relations) for the assertion that Jewish men
were not likely to become aroused in this manner.1 72 Later authorities also
negated any possibility of sexual arousal because "homosexuality was so
rare among Jews that such preventative legislation was considered
unnecessary."'173 Consequently, the perception that men, especially Jews,
were naturally attracted to women was perpetuated.

166 SATLOW 1995, supra note 31, at 316; Satlow 1994, supra note 68, at 15.

167 Satlow 1994, supra note 68, at 2.

,68 Id. at 7-8.
169 Id. at 1.

170 MISHNAH KIDDUSHIN, supra note 115, at 4:14. See also Mishnah Kiddushin

4:14, Store of Holy Texts, http://wwwl.snunit.kl2.il/kodesh/mishna/kidu04.html (last visited
Oct. 16, 2005).

171 A code of Jewish Law from the twelfth century.

172 Norman Lamm, Judaism and the Modern Attitude to Homosexuality, in

CONTEMPORARY JEWISH ETHICS 375, 381 (Menachem Marc Kellner ed., 1978).

173 Id. For example, see KIDDUSHIN, supra note 115, at 82a.

[Vol. 15:2



Of Pearls and Fish

B. Female Homosexual Desire

Although the Torah does not specifically mention female
homoerotic acts, the rabbis forbade them based on their interpretations of
Leviticus 18:3, which states that "[w]hat is done in the land of Egypt,
wherein you were settled, you are not to do; what is done in the land of
Canaan, to which I am bringing you, you are not to do; by their laws you
are not to walk."'174 Just as the prohibition of male homosexual acts was
intended to define boundaries between Israelite and non-Israelite, this
statement is also about separating Jews from their neighbors in a more
general sense. It was not until later, however, that the rabbis connected
lesbianism to this separation and thus derived the proscription for
lesbianism. Sifra, Aharei Mot 9:8 175 "describes these 'doings' [in the
biblical verse cited above] as including lesbianism.' 76 Sifra, as Midrash, is
a halakhic work that "stands in direct relationship to a fixed, canonical text,
[Leviticus].', 177 Its prohibitions are reflective, then, of a different exegetical
tradition, in which female homosexual activity ostensibly serves as a threat
to the general society. This danger is thus in contrast to male homosexual
desire, where "rabbinic anxiety about male penetration is crucial.' 78

Lesbianism receives comparatively more comprehensive treatment
in the Babylonian Talmud. Shabbat 65a/b and Y'vamot 76a conclude that
"sexual intimacy between women does not render the individual women
concerned 'unfit"' for marriage. 179 The rabbis in these texts allow a woman
to maintain whatever current sexual status she has-virgin or widow, for
instance-because they do not consider lesbian sexual expressions to be
sex: "[I]n terms of definitions, it is significant that sexual acts between
women are not considered a violation of the law because no act of
intercourse takes place-in other words, it is the male experience[,] which
defines what is a sexual act." 180 Although certainly discouraged, then, this
female homosexual activity does not have the same grave implications as

174 Fox, supra note 163, at 597.

175 This text was "edited no later than the fourth century CE." Elizabeth Sarah,
Judaism and Lesbianism: A Tale of Life on the Margins of the Text, in JEWISH
EXPLORATIONS, supra note 38, at 95, 96.

176 Mariner, supra note 162, at 84.

177 STEMBERGER, supra note 24, at 235 (quoting G. Porton, Defining Midrash, in
THE STUDY OF ANCIENT JUDAISM 55, 60 (J. Neusner ed., 1981)).

178 SATLOW 1995, supra note 31, at 187.

179 Sarah, supra note 175, at 97.

180 BAKER, supra note 140, at 166.

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Columbia Journal of Gender and Law

male homoerotic contact because no penetration of a penis into a vagina
occurs. To a certain extent during this period, men-fathers, husbands,
brothers, or other male relatives-legally controlled women's sexuality, and
women, whether or not they engaged in lesbian sex, were still under their
male relatives' power. Men were still able to use their legal authority to
encourage or require marriage for their female relatives, regardless of these
women's sexual preferences.

Further, Hilkhot Issurei Bi'ah 21:8 confirms the prohibition from
ancient works: "[W]hat they used to do [in Egypt] was that men used to
marry men and women used to marry women [but] there is no specific
negative commandment about it and no sexual intercourse is involved.. '.. '
He specifically reminds his audience, "it is forbidden for women to
mutually masturbate [lit. 'rub each other'].' 82 Moreover, the difficulty with
lesbian sex is not simply grounded in the Jewish desire to distance itself
from foreign, non-Jewish practice. Mutual masturbation or any other sexual
acts between women challenge the notion that a woman can and should
only fulfill her sexual desires through intercourse with her husband, and
vice versa. While Maimonides does not explicitly raise a concern that a
woman will be sexually satisfied from intimate contact with another
woman, he refers to the need to "prevent women who are known for such
lesbianism from coming in to [a man's wife] and [to] prevent her from
going out to them," 183 implying that women would seek out these
relationships.184

C. The Case of the "Androgyne" and "Tumium"

The paradigm for appropriate avenues of sexuality, however, was
problematic when it was unclear whether or not the person in question was
male or female. In Mishnah Bikkurim 1:5, tannaitic Rabbi Eliezer ben Jacob
the Elder 185 places the tumtum and androgyne in the same category of
woman: "[T]he administrator, the agent, the slave, the woman, the tumtum,
and the androgyne can bring the first fruits but they cannot say the blessing

18' Alan Unterman, Judaism and Homosexuality: Some Orthodox Perspectives, in

JEWISH EXPLORATIONS, supra note 38, at 71 (quoting Hilkhot Issurei Bi 'ah).

182 Id.

183 Id.

184 Id.

185 See STEMBERGER, supra note 25, at 68. Stemberger explains that Rabbi Eliezer

ben Jacob the Elder is known for teachings on Temple; this leads me to conclude that the
Rabbi Eliezer discussing the first fruits for sacrifices is probably that tannaitic figure.

[Vol. 15:2528



Of Pearls and Fish

because they cannot say 'that you gave me, G-d. ' ' ' 186 Tumtum is a halakhic
technical term for someone whose biological sex is indeterminate. Later in
Chapter Four of the Mishnah Bikkurim, the rabbis discuss how the
androgyne is like both a woman and a man. 187 There is considerable
confusion regarding this person's status as a sexual being. Michael Satlow
explains the halakhic tradition concerning these people of uncertain
sexuality, noting that "when an androgunos is sexually passive in vaginal
intercourse, the act is not a capital crime,"' 18 8 that is, not homoerotic,
because the androgyne is acting like a woman, and the intercourse is
essentially heterosexual. However, "only when [the androgyne is] passive
in anal intercourse does the act come perilously close to male
homoeroticism, and is thus prohibited."' 189 The case of the androgyne is
important because it points to the possibility that there exists another
avenue for sexual expression. There are people who do not fit the paradigm,
and yet they are able to express their sexual identities. Granted, the rabbis
try to fit the androgyne in the heterosexual model; but the Halakhah remains
confused, sometimes equating this person with women and other times with
men.

In the case of the tumtum and androgyne, Maimonides is
considerably stricter:

[The offender] is free from the death penalty for vaginal
intercourse with an androgyne. The tumtum is a doubtful case and
so for sexual intercourse with a tumtum, or for vaginal intercourse
with an androgyne, one would be punished by a rabbinical
beating. An androgyne is allowed to marry a woman. 19

0

The risk that a person with a penis might choose to be sexually active as a
woman, thereby accepting the "weaker" position, is unbearable.
Maimonides arguably goes against earlier texts and recommends
punishment, even though a sanction is not biblically based, because the
uncertainty threatens established sexual norms and challenges the
traditional, fixed assignment of sexual authority in a relationship.

186 This translation from the Hebrew is the author's. See also 3 MISHNA - SEDER

ZERA'iNv: BIKKuRim 1:5, 10-11 (Pinhas Kehati, ed., Eliner Library Dep't for Torah Education
and Culture in the Diaspora 1994). See also Bikkurim 1:5, 10-11, Store of Holy Texts,
http://wwwI.snunit.kI2.il/kodesh/mishna/bicu01.html (last visited Oct. 16, 2005).

187 1 HERBERT DANBY, THE MIsHNAH 98 (1933).

188 SATLOW 1995, supra note 31, at 187.

189 Id.

190 Unterman, supra note 181. at 71, quoting Hilkhot Issurei Bi 'ah 1:14-15.

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Columbia Journal of Gender and Law

As demonstrated above, the positions against homosexuality in the
biblical and rabbinic halakhic works reflect the way in which the biological
realities of heterosexual sex suggest the unnaturalness of homoerotic
activity. The rabbis' condemnations, however, lay the foundation upon
which criticism of the modem Jewish movements is grounded.

D. Modern Approaches to Homosexuality within the Jewish
Community

The halakhic ideal of heterosexual marriage pervades the positions
on homosexuality of most of the modem movements of American Judaism.
Both Orthodox and Conservative Judaism accept the textual position on the
grounds that Halakhah is flatly authoritative in this matter. In contrast,
Reform Judaism and Reconstructionism reject the Halakhah that ostracizes
GLBT Jews and welcome them into the community. Only the
Reconstructionist Movement eschews the heterosexist ideal completely.

1. Traditional Approaches: Orthodox and Conservative Judaism

As described in Part I, Orthodox Judaism regards the Hebrew Bible
as the ultimate authority of Jewish law, but in fact assigns great, if not
greater, weight to post-biblical texts, especially halakhic works. As
expected, then, the expression of a homosexual identity through homoerotic
intercourse is completely forbidden as a sin and an abomination among the
Orthodox community. For example, Rabbi Alan Unterman explains the
situation directly:

The commitment of the Orthodox community to Torah is not a
consciously selective one, but relates to a whole tradition, parts of
which may seem obvious and relevant and parts obtuse and
irrelevant .... It does not seem [that there needs to be] tacit
approval for [the] lifestyle [of GLBT Jews] from the Halakhah
than among other dissatisfied sinners.' 9'

He continues emphatically, "[a]s long as gays are simply regarded
as males and females, homosexual acts are prohibited to them."'192 This
statement leaves open the possibility that sexual identity may one day not
be classified along male or female lines, and the abolishment of this
dichotomy will allow a different approach to the appropriateness of
different, non-heterosexual expressions of sexuality.

Moreover, Rabbi Jonathan Sacks, the current Chief Rabbi of
England, believes that "the ideals of heterosexuality and above all fidelity,

191 Id. at 72.

192 id.

[Vol. 15:2



Of Pearls and Fish

summed up in the concept of marriage, are not merely part of Biblical
ethics. They are written into the entire fabric of the Biblical vision."' 193

Homosexuality has no place in his model for Jewish life. Sacks's argument
does not account for other institutions regulating sexuality, such as
polygamy and levirate marriage that are no longer practiced today but were
important parts of biblical narrative and law. Finally, Rabbi Michael Gold
summarizes the possible reasons for this legal stance, stating that
"procreation is impossible" and "homosexuality .. .threatens the Jewish
ideal of family life, of marriage and children, articulated in the Torah."' 194

These reasons speak to the social standard of heterosexuality for the Jewish
community and point to applications of Jewish Law that reinforce that
paradigm. It is important to note that some Orthodox thinkers advocate a
more inclusive stance. They liken those who disregard the proscription on
homosexuality to those who break the laws of Shabbat or kashrut: they may
still participate and even be leaders in communal Jewish life to a limited
extent, but their sins remain inappropriate and discouraged by the rabbinical
leadership.

Orthodox Judaism, however, has not been able to ignore the
presence of active GLBT Jews in their communities and therefore strives to
correct their sexual activity, much like a rabbi would encourage wayward
Jews to keep the laws of Shabbat. In 1974, Rabbi Norman Lamm articulated
four responses to homosexuality. 195 He rejected three of them, namely,
sanctioning gay people,' 96 stopping all social critiques of homosexuality,
and recognizing the authenticity of a gay alternative lifestyle. As a fourth
option, Lamm suggested that this preference for sexual intimacy with a
person of the same gender represents psychological imbalance, "in orienting
ourselves to ... homosexuals as patients rather than criminals, we do not
condone the act but attempt to help the homosexual."197 In other words,
Lamm views GLBT Jews as ill patients in need of cure. Halakhically, this
argument means that the homosexual is a person who cannot control his or
her sin, that is, who is compelled to engage in homosexual acts, and
someday might repent-even as that person continues to bear responsibility
for those actions. This approach is supposed to engender compassion for the
gay person. On a practical level, however, the Orthodox leadership strongly

193 SACKS, supra note 93, at 169.

194 MICHAEL GOLD, DOES GOD BELONG IN THE BEDROOM? 139 (1992).

195 Lamm, supra note 172, at 384.

196 Lamm argues that "criminal laws requiring punishment for homosexuals are

simply unenforceable in society" and will probably encourage those acts in prison,
stigmatizing those who ought to be learning from their crimes. Id. at 386.

'97 Id. at 395.

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and publicly condemns homosexual activity. Despite this, openly GLBT
Jews are hesitantly welcomed into some Orthodox communities, but they
are usually under pressure to undergo therapy and marry in hopes of one
day being cured of their "illness."

This official position does not necessarily reflect the lives of all
Orthodox GLBT Jews. Orthodox Rabbi Steve Greenberg, 198 in an article
published under a pseudonym, explains, "[g]ay feelings are hardwired into
our bodies, minds, and hearts ... I do not believe that G-d would demand
that I remain loveless and celibate [and] I have chosen to seek a committed
love, a man with whom to share my life."' 99 His statement challenges the
fundamental belief that all men and women are heterosexual as well as the
primacy of heterosexual marriage in Jewish law. Greenberg speaks to the
halakhic concerns as well: "If the Torah expressly forbids only this one
form of sexual fulfillment, could we articulate a possible "halakhic" form of
gay loving that excludes anal intercourse but permits a loving physical and
emotional relationship between two men or two women?, 200 This solution
respects the letter of the law, which he recognizes is "unchangeable" in the
framework of Orthodox Judaism, but welcomes a different, more modem
understanding of sexuality at odds with the rabbinic and halakhic views.
While GLBT Orthodox Jews reject their rabbis' interpretations of
homosexuality, it often comes with a high cost in regards to their
membership in the Orthodox Jewish community.

The official position of Conservative Judaism on homosexuality is
strikingly similar to the Orthodox stance. This is surprising considering that
this movement generally encourages change within the halakhic system; in
fact, it approached the transformation of women's roles in Judaism from a
perspective that used innovations in Halakhah in response to modem
challenges to traditional gender roles. The arguments against giving
legitimacy to GLBT Jews, however, appeal to the unchanging authority o °

the text. Rabbi Joel Roth "acknowledges that homosexuality cannot bt
considered inherently abominable, but asserts that the Torah simply
attributes the quality of abominableness to homosexuality, placing the
prohibition beyond the reach of any extra-legal concerns that would favour

198 Greenberg also appears in Trembling Before G-d, a film that illuminates some

of the complexities of being a religious Jew and gay in a successful "portrayal of the anguish
faced by Jews who want to remain Orthodox but see themselves as homosexual." Avi
Shafran, Dissembling Before G-d 1, http://www.jlaw.com/Commentary/dissembling.html
(last visited Oct. 12, 2005).

199 Yaakov Levado, Gayness and God: Wrestlings of an Orthodox Rabbi, TIKKUN,

Sept./Oct. 1993, at 55, 57. Later, it became known that the author was Rabbi Steve
Greenberg. See Steve Greenberg, Gayness and God,
http://www.indegayforum.org/authors/greenberg/greenberg31 html.

2 ° Id. 46.

[Vol. 15:2



Of Pearls and Fish

its abandonment.,,201 By relying on the influence of the text, Roth asserts
that Jewish law cannot change or adapt to accommodate respect for
homosexuality because its legal wrongness remains squarely based on
halakhic texts. Because the Torah forbids anal intercourse, "Roth's last
word to the gay person is that 'Jewish law would have you be celibate.' 20 2

Conservative synagogues have traditionally had control over their own
religious practices, so in effect this means that individual communities can
decide whether to welcome GLBT Jews into their congregations.

Because the Conservative Movement has more flexibly defined
standards of practice as compared to those of Orthodoxy, there is
considerable and vocal disagreement over the status of GLBT Jews.
According to Rabbi Eliott Dorff, "the results of Roth's reasoning [are]
'unbelievably cruel"' because they are essentially a "position of extreme
and formalistic fundamentalism" which disregards the innovation possible
in halakhic discourse.20 3 Moreover, Rabbi Hershel Matt questions "whether

the ancient and modem significance and consequences of
homosexuality are the same and whether homosexuality today is inherently
idolatrous, immoral, and destructive of Jewish existence." 20 4 Conservative
rabbis like Matt believe that there is a potential for halakhic adaptation to
modem conceptions of sexuality, and they encourage that change on an
institutional level. The changes in Jewish law are also part of a larger
understanding of how the shifting nature of the family leaves the possibility
for same-sex families to be equal to traditional nuclear families.

Institutionally, however, "the Committee on Jewish Law and
Standards determined that commitment ceremonies should not be
performed and that sexually active homosexuals should not be admitted to
the Movement's rabbinical and cantorial schools., 20 5 This latter position
essentially forces GLBT Jews to choose between their religious calling to
serve the religious needs of the Jewish community as a rabbi or cantor and
their needs for human companionship and personal fulfillment. As the
rabbis' disagreement persists, the disqualification of GLBT Jews from
ordination at the Jewish Theological Seminary and from admittance into the
Rabbinical Assembly still has a profound effect on the opportunities of
GLBT people within the Conservative Movement. Benay Lappe, a former
student of the Jewish Theological Seminary, explains, "I have always seen

201 Mark Solomon, A Strange Conjunction, in JEWISH EXPLORATIONS, supra note

38, at 80.

202 Id.

203 Id.

204 GOLD, supra note 174, at 143.

205 DORFF, supra note 102, at 40.

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the seminary's refusal to ordain openly gay and lesbian rabbis as
profoundly misguided, obviously rooted in homophobia, and certainly not a
prejudice that should be honored. 2 °6 There is a "don't ask, don't tell"
policy in force.207 The institutions' negative stance on homosexuality likely
extracts a high emotional toll on GLBT Jews who realize that the stance of
these schools institutionalize homophobia in the Conservative Jewish
community at large.

Lappe emphasizes another element that makes the situation more
complex: the relationship of Conservative Judaism to other Jewish
movements and Jews worldwide. Since the Conservative Movement revised
its policies towards women, it has had to reaffirm its commitment to
Halakhah in order to maintain its authenticity. Homosexuality, then, "is the
final remaining issue that keeps the movement from being lumped together
with the Reform movement. It is what makes possible whatever legitimacy
the movement is granted by the rabbinate in Israel.,, 208 This facet is
particularly significant with regards to establishing a context for the
Conservative decisions about GLBT Jews. The Conservative Movement has
not yet determined the most coherent manner in which to apply its theology,
and so it is remaining faithful to the traditional Jewish legal stance on
homosexuality.

2. Liberal Approaches: Reconstructionist and Reform Judaism

In contrast to traditionalists who privilege Jewish texts in their
interpretations of homosexuality, liberal streams of Judaism weigh ethical
considerations against contextual and historical factors in developing their

206 Benay Lappe, Saying No in the Name of a Higher Yes, in LESBIAN RABBIS: THE

FIRST GENERATIoN 197, 204 (Rebecca Alpert et al. eds., 2001) [hereinafter LESBIAN RABBIS].

207 Lappe spent her six years of rabbinical school "in the closet," and soon "it was

nearly impossible to keep [her] lesbian head above water, so to speak, with such an
enormous tide of homophobia and sexism washing over [her] every day." Id. at 206. Even
though the rabbinical school has a policy of "don't ask, don't tell," the dean interrogated
Lappe: "[H]e went even further and told [Lappe] that he would not ordain [her] if [she]
continued to refuse to answer him" on whether or not she was a lesbian. Id.

Similarly, in another article in LESBIAN RABBIS, the experiences of an anonymous
lesbian rabbi are referenced. She notes that, while she was in rabbinical school, she was "still
not ready to stand up to the Conservative Movement and its Rabbinical Assembly and state
that [she was] a lesbian." In Hiding, in LESBIAN RABBIS, supra note 206, at 226, 233. She
states: "I have neither the security nor the courage to add my name to this page.... I will
help bring about the day when no one will have to feel alone or torn during rabbinical
school, and that no one will have to hide who they are." Id.

208 Lappe, supra note 206, at 215.

[Vol. 15:2



2006] Of Pearls and Fish 535

responses to homosexuality. For instance, Mark Solomon rejects "this
prohibition [as] not divine, but all too erringly human. '20 9 He explains:

Whether the prohibition of homosexual intercourse [in Jewish
texts] is motivated by a loathing of pagan cultic practices,
disapprobation of the rape of defeated enemy warriors, or simply
revulsion at the idea of a man being 'womanised' in a society
where women were regarded as necessarily passive and
submissive, it certainly has no claim whatever on the conscience
of any gay person today[,] 210

and ought not on any Jew as well. Because progressive Jews believe that
people wrote the Torah, perhaps as a response to Divine inspiration or will,
they claim an imperative to change the Jewish understanding of
homosexuality. Progressive "supporters reexamine the entire history of
Jewish teaching from biblical times through the present in the light of
contemporary scientific and humanistic teachings about human sexuality
and homophobia," and this approach gives a Jewish framework in which to
give legitimacy to homosexuals. 21 1 They see the denial of legitimacy
inappropriate, as "[m]ost gays would reject the patronizing implications of
being regarded as ill," especially since most psychology and psychiatry
groups have stated that homosexuality is not a mental illness.21 2 Within the
halakhic framework, Rabbi Harold Schulweis similarly points out that "in
the Talmud, a deaf-mute was considered to be retarded, mentally
incompetent, and imbecile not able to serve or witness or to be counted in
the minyan or able to affect marriage and divorce. But that ruling was based
on empirically false data," just like the notion of homosexuality as a disease
instead of a sexual orientation. 213 Progressives affirm the legitimacy of
homosexuality when they argue that, "[f]or a gay it is part of the nature
G[-]d gave him [or her] and must be used in His service. 214 With this new
understanding of human sexuality, then, it is possible to recognize different
sexual orientations as equally valid and develop a vocabulary in which to
analyze them.

209 Solomon, supra note 201, at 82.

210 id

211 Yoel H. Kahn, Judaism and Homosexuality: The Traditionalist/Progressive

Debate, in HOMOSEXUALITY AND RELIGION 47, 66 (Richard Hasbany ed., 1989).

212 Unterman, supra note 181, at 74.

213 Harold Schulweis, Morality, Legality, and Homosexuality (1992),
http://www.vbs.org/rabbi/hshulw/moralitybot.htm.

214 Lionel Blue, Godly and Gay, in JEWISH EXPLORATIONS, supra note 38, at 117,



Columbia Journal of Gender and Law

With that attitude, the Reconstructionist Movement has rejected the

Halakhah that forbids homosexual activity. The Reconstructionist

Rabbinical College welcomed GLBT Jews as students in 1994, and the

movement "issu[ed] a significant statement in support of gay and lesbian

rabbis and teachers, and the performance of gay marriages, and encouraging

synagogues to be 'welcoming congregations. ,,215 Rebecca Alpert explains

that "same-sex marriage is understood as a religious value because it

provides economic justice, creates stable, committed relationships, and

fosters support for childrearing." 216 In other words, Reconstructionist

Judaism does not see homosexuality as a threat to the Jewish family and

thus Jewish survival; indeed, GLBT Jews enhance the Jewish community's

perception of what it means to be a successful Jewish family.
The Reform Movement has only within the past few years

permitted equal participation for gays in its various institutions and

ceremonies, but its history of supporting rights for homosexuals extends

back to 1977 when the Central Conference of American Rabbis ("CCAR")
"encourage[d] legislation which [would] decriminalize[] homosexual acts

between consenting adults and prohibit discrimination against [gays and

lesbians]. 217 GLBT Jews attended the rabbinical and cantorial schools

through the 1980s "in the closet" and then "came out" after ordination. In

1990, the CCAR supported equal rights for gays and lesbians even as they

affirmed the Jewish ideal of heterosexuality, and they also openly

welcomed GLBT rabbis into their ranks. GLBT synagogues are also

members of the Union of American Hebrew Congregations. Although not

every synagogue is welcoming to GLBT members, there have been

significant improvements in the attitudes of Reform Jews towards them.

For the Reform Movement, the issue of same-sex marriage has

been most troubling because, even outside of the halakhic system, the

Jewish community upheld the Jewish principle of heterosexual marriage.

The alteration of Jewish law and principles could not occur completely

apart from Jewish tradition, as evidenced by the Responsa Committee of the

CCAR in 1997, which affirmed the halakhic construction of marriage:

[K]iddushin: that concept whether understood according to its
traditional terms or its Reform interpretation, is a legal institution
whose parameters are defined by the sexual boundaries that
Jewish law calls the arayot. Homosexual relationships, however

215 See Sue Levi Elwell & Rebecca T. Alpert, Introduction, Why a Book on Lesbian

Rabbis?, in LESBIAN RABBIS, supra note 206, at 24.

216 Rebecca T. Alpert, Religious Liberty, Same-Sex Marriage, and Judaism, in G-D

FORBID: RELIGION AND SEX IN AMERICAN PUBLIC LIFE 124, 127 (Kathleen Sands ed., 2000).

218 Judaism and Homosexuality: Reform Judaism, http://www.religioustolerance.

orglhomjref.htm (last visited Dec. 12, 2005) (quoting Central Conference of American

Rabbis, Resolution Adopted by the CCAR: Rights of Homosexuals (1977)).

[Vol. 15:2536



Of Pearls and Fish 537

exclusive and committed they may be, do not fit within this legal
category; they cannot be called kiddushin.21 8

The issue here is not whether homosexual partners can have
legitimate, sanctioned relationships but whether they can have a religious
marriage; in fact, Reform Judaism announced its support of civil
commitments in 1996.219 In June 1998, the CCAR's Ad-hoc Committee on
Human Sexuality concluded that "kiddushah [holiness-the same root as
kiddushin] may be present in committed, same gender relationships
between two Jews, and that these relationships can serve as the foundation
of stable Jewish families, thus adding strength to the Jewish community. 22 °

The organization formalized this decision in March 2000, stating that "the
relationship of a Jewish, same gender couple is worthy of affirmation
through appropriate Jewish ritual [though] we support the decision of those
who choose [not] to officiate at rituals of union.' 22'

Within a Jewish framework, these two movements address
homosexuality much like they do with other laws from Judaism: by looking
at the ethical implications of any decision and deciding whether it reflects
"Judaism" accurately or needs further innovation. More eloquently, as
Tikva Frymer-Kensky says: "Perhaps this is another instance in which the
path upon which our ancestors set out now leads in a direction that
invalidates and hurts members of the community and that the path must be
redirected to be more appropriate to our vision of ourselves and God. 222

E. Consequences of these interpretations for GLBT Jews and for the
Jewish community

This Part has shown that interpretations of sacred texts about
sexuality have a large impact on Jewish responses to homosexuality. The
modem Jewish movements respond to homosexuality through the context
of their respective positions on the authority of Halakhah by affirming their

218 Moshe Zemer, Progressive Halakhah and Homosexual Marriage, in GENDER
ISSUES IN JEWISH LAW: ESSAYS AND RESPONSA 166 (Walter Jacob & Moshe Zemer eds.,
2001).

219 See RRA Resolution, supra note 106.

220 AD-HOC COMMITTEE ON HUMAN SEXUALITY, REPORT TO THE CCAR
CONVENTION (1998), available at http://www.google.com/search?q=cache:KKUagRFFzYJ:
www.ccarnet.org/hs.html+&hl=en.

221 CENTRAL CONFERENCE OF AMERICAN RABBIS, RESOLUTION ON SAME GENDER

OFFICIATION, (2000), available at http://data.ccarnet.org/cgi-bin/resodisp.pl?file=gender&
year=2000.

222 Tikva Frymer-Kensky, Toward a Liberal Theory of Halakha, 10 TIKKUN 77
(1995).

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commitment to either uphold traditional laws or encourage innovations with

respect to Jewish ideals. Although it is important to realize how the Jewish

texts have functioned historically, it is also useful to understand how Jews

use these legal principles in making modem-day decisions that affect so

many gay, lesbian, bisexual and transgender Jews. The Orthodox and

Conservative leadership appeal to the authority of sacred texts in

discouraging GLBT Jews from expressing their sexual orientations, while

the Reconstructionist and Reform Movements welcome GLBT Jews into

their communities and encourage them to celebrate their lives, however

untraditional, with everyone.
As long as Orthodox, Conservative, and some Reform Jews,

regardless of their attitudes towards Halakhah, fail to show compassion,

GLBT Jews will seek out their own communities in the search for

acceptance. The first GLBT synagogue, Beth Chayim Chadashim, was

founded in Los Angeles in 1972, and, in 1974, Congregation Beth Simchat

Torah in New York was organized as a response to the strong alienation

these Jews felt in the mainstream heterosexual Jewish community.

Although traditionalists decry these places of worship as breaking apart the

Jewish community and are "reluctant to grant religious or communal

recognition to [GLBT] Jews, 223 GLBT Jews argue that these communities

provide them a safe space to be Jewish and GLBT. "[B]ecause the [GLBT

Jew] has not felt comfortable in existing religious institutions . . . these

synagogues perform a vital religious function"' 224 by accepting different

sexual orientations as well as Jewishness. Once this homophobia subsides,

whether by halakhic innovation or evolving compassion, it is likely that

GLBT Jews will return to Reform, Conservative, and Orthodox synagogues

because they feel accepted and welcomed as part of the community and do

not feel pressured to fulfill heterosexual expectations. In preparation,

Jewish communities should reevaluate their understanding of the familial

structure's role with respect to Jewish survival and recognize that gay,

lesbian, bisexual, and transgender Jews value and contribute to the Jewish

experience as both Jews and as GLBT persons. It is important for modem

day American Jewish society to encourage that involvement, as it benefits

everyone.

V. CONCLUSION

The view of sexuality expressed in halakhic texts recognizes the

legitimacy of heterosexual marriage only because it is based on the

normative assumption of heterosexual desire. Examinations of these

materials confirm that Jewish law distinguishes between the characteristics

223 Kahn, supra note 211, at 58.

224 Id. at 65.

[Vol. 15:2538



Of Pearls and Fish

of men and women's sexuality, portraying the man as rightfully sexually
aggressive and the woman as sexually passive. As a result, because
Halakhah promotes heterosexual norms and standards for heterosexual
expression, it establishes laws on marriage and divorce that disfavor women
and marginalize GLBT Jews. Modem American Jewish movements are thus
left with the task of developing approaches to these issues that reflect both
the legal tradition as well as contemporary sentiments.

The respective theological frameworks of the modem Jewish
movements considerably shape communal positions on these issues, but do
not preclude deviations from established patterns of interpretation. Reform,
Orthodox, and Conservative Judaism are not always consistent in their
respective halakhic decisions, i.e., they do not apply their theories of
Halakhah consistently. Reform Jewish leaders contend that Jewish
principles guide their movement's rabbinical rulings. The sole acceptance
of a Jewish marriage only between a man and a woman, however, does not
fit that paradigm, considering that Reform halakhists eschew the need for a
specifically Jewish divorce. It is inconsistent to advocate certain standards
for relationships, along with their attendant legal structures, such as
kiddushin, while acknowledging that the solution to another problem of
sexuality requires the repudiation of the institution of Jewish divorce. In
addition, Orthodox thinkers claim that their halakhists give preference to
certain texts for specific historical reasons; but it is clear that extra-halakhic
reasons sometime play a role. Orthodox authorities go to great lengths to
find ancient commentaries of comparatively lesser importance which
support their positions. With regard to homosexuality, the representatives of
official institutions in Conservative Judaism refer to the authority of the
Jewish texts much like their Orthodox counterparts; their rhetoric calls into
question the fundamental legitimacy and practical applicability of their
approach to Halakhah.

All these inconsistencies have the secondary effect of devaluing
men's and women's sexuality in discussions of marriage, divorce, and
homosexuality. While the non-Orthodox positions mentioned above
recognize sexual desire in both men and women, the movements themselves
are noticeably quiet in defining the characteristics of sexuality. This silence
suggests that the underlying assumptions, such as men's aggressive and
woman's passive sexual natures, implicitly sway halakhic decision-making,
at least with regard to these three issues. Additionally, the refusal to
articulate acceptance or repudiation of traditional stereotypes undermines
attempts to reconcile these matters within the halakhic system. It is, for
instance, erroneous for Conservative Jewish leaders to claim that changes to
the legal stipulations of the ketubah with regard to divorce will alter Jewish
attitudes toward sexuality by granting a woman m6re control over the
expression of her sexuality. The solution actually shifts responsibility for
the woman's sexuality to the court system, thereby devaluing her ability to
make choices concerning the expression of her sexual desire. Because

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Columbia Journal of Gender and Law

contemporary attempts by the modem Jewish movements have focused on
the husband's unilateral power, legal authorities have overlooked the

profound imbalance on which the marriage is established, namely, the
treatment of women's sexuality as a commodity. To resolve this problem,
interpreters of Halakhah must address this underlying assumption.
Otherwise, any legal suggestions leave the woman at the mercy of both her
husband and the religious courts when she tries to reassert control over her
sexuality in a divorce.

Additionally, by applying current knowledge about sexual
orientation, contemporary Jewish movements have the opportunity to take
into account modem understandings of homosexuality. The Reform and
Reconstructionist Movements already embrace GLBT Jews as people with

a different and legitimate sexual orientation; the Conservative Movement is
currently embarking on that path at the writing of this Article. Orthodoxy
persists in labeling homosexual activity morally wrong, but that too is
slowly changing through grassroots advocacy in Jewish communities in

America. In Orthodoxy, the maintenance of traditional assumptions about
sexuality devalues sexual desire that does not fit the paradigm, including the
sexual orientation of GLBT Jews and the expressions of sexual desire in
which the woman is more aggressive and the man is more passive.

It appears that only Reconstructionist Judaism is consistent in its
position on sexuality. This movement continues to regulate divorce and
homosexuality within a developing halakhically-based system, but the
approach to the issues as well as attendant solutions reflect an
understanding of sexuality that values men's and women's sexual desire,
whether it is homosexual or heterosexual in nature. By allowing a woman to
grant a get and encouraging men and women to be married to partners of
the same or different genders in order to form Jewish families,
Reconstructionist Judaism affirms the legitimacy of sexuality defined

differently from traditional constructions through the articulation and
implementation of a changing conception of sexuality. Contradicting
positions on sexuality also undermine community; consistency adds
legitimacy not only to men's and women's expressions of sexuality but also
to the religious community as a whole whereby all Jews feel valued rather
than alienated. If the modem Jewish movements are to continue to regulate
sexuality, it is important that they show consistency in their rulings; without
it, mixed messages might destabilize the entire halakhic system and the
Jewish communal world.

This critique, however, ought not to forget that these issues directly
affect people's lives. There are religious women that remain trapped in
marriages because their husbands refuse to give them gittim. Gay, lesbian,
bisexual, and transgender men and women, members of all the Jewish
movements, continuously face homophobia and discrimination in their
communities. With each decision, halakhic authorities use their significant
influence to promulgate old and new interpretations of Jewish law. It is with

[Vol. 15:2540



2006] Of Pearls and Fish 541

this in mind that this Article calls for more research into the connection
between halakhic conceptions of sexuality and gender issues. Such a study
could bring about a reckoning between these older assumptions about
sexual expression as reflected in ancient laws and contemporary theories of
human sexuality and contribute to the intellectual and spiritual growth of
the Jewish community.