The Story of Jewish Polygamy


COLUMBIA JOURNAL OF GENDER AND LAW

THE STORY OF JEWISH POLYGAMY

MARK GOLDFEDER*

Abstract

This Article examines the intersection of law, religion, and culture in the evolution of
polygamy in the Jewish tradition. It traces the development ofJewish thought on polvgamv
over time by assembling and analyzing relevant discussions, arguments, decisions, and
biblical interpretations from the time of the Hebrew Bible passages, when plural marriage
was an accepted part of Jewish society, to the early Middle Ages when the practice was
formally and conclusively rejected. In doing so, the Article attempts to untangle the
various influences-both practical and doctrinal, internal and external-on the evolution
of marriage law in Jewish communities. These findings highlight the mutable nature of
marriage norms within a religious community, the adaptability of religious doctrine to
the practical needs of the community, and the potentially progressive force of religious
morality in advancing women rights.

INTRODUCTION: POLYGAMY AND RELIGION IN PUBLIC DISCOURSE

Judaism's relationship with polygamy has always been fraught with tension and
perhaps can best be summed up by the fact that the word for co-wife in Hebrew is tzarah,
literally "trouble." As many know, the practice of polygamy was once considered part and
parcel of Jewish culture, at least in theory, but nowadays that is no longer the case. The
story of Jewish polygamy has no clear-cut ending; there was no one defining moment or
document that shifted the Jewish societies in Western Europe away from polygamy and
into monogamy. But over time, these norms did shift for reasons we examine in this Article.

* Dr. Mark Goldfeder, Esq., is Senior Lecturer at Emory Law School and the Spruill Family Senior Fellow
at the Center for the Study of Law and Religion. He is also an Adjunct Professor of Law at Georgia State
University College of Law, and an Adjunct Professor in the Department of Religion at Emory University. He
received his J.D. from NYU Law, and his L.L.M. and doctorate from Emory University. The author wishes to
thank Professor John Witte, Jr., of Emory Law School for his continued guidance and support.

234 26.2



26.2 COLUMBIA JOURNAL OF GENDER AND LAW 235

For the past several years, the issue of marriage and of marital forms in particular
has been a prominent feature on both the national' and international stage. 2 Efforts to lift
prohibitions on same-sex marriage in this country and abroad have inspired people on all
sides of the political spectrum to speak about the virtues of monogamy's core institution
and to express views on who should be included within it.' While public discourse over
marriage in the United States and around the world has focused primarily on gay marriage,
the issue of legalizing plural marriage has been gaining considerable attention in recent
years.4 In the United States, TV shows such as TLC's Sister Wives, HBO's Big Love and

I See Carl E. Schneider, Moral Discourse and The Transformation ofAmerican Family Law, 83 MIcH. L.
REV. 1803 (1985).

2 See MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED
STATES AND WESTERN EUROPE (1989).

3 In addition to the option of religious marriage available to same-sex couples in various religions and
denominations, civil marriage has recently become open to same-sex couples in the state of Massachusetts
as of May 2004. See Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003). Since that time,
and as of March 2014, seventeen states-California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine,
Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island,
Vermont, and Washington, as well as the District of Columbia and two Native American tribes-have legalized
same-sex marriage, representing 38% of the U.S. population. Where State Laws Stand, FREEDOM TO MARRY
(Dec. 20, 2013), http://www.freedomtomarry.org/pages/where-state-laws-stand; see also In re Opinions of the
Justices to the Senate, 802 N.E.2d 565 (Mass. 2004); Tying the Knot, GLOBE & MAIL (July 15, 2003), at A9
(discussing two Canadian provinces, Ontario and British Columbia, since summer 2003). The Netherlands
has recognized same-sex marriage since April 2001; Belgium has recognized it since 2003. See Wet wan
21 december 2000 tot witziging van Boek 1 van het Burgerlijk Wetboek in verband met de openstelling van
het huwelik voor personen van hetzelfde geslacht (Wet openstelling huwelyk) [Text of Dutch Law on the
Opening Up of Marriage for Same-Sex Partners (Plus Explanatory Memorandum)], Stb. 2001, nr. 9 (Neth.),
translated in Kees Waaldijk, Text of Dutch Act on the Opening Up of Marriage for Same-Sex Partners, in
LEGAL RECOGNITION OF SAME-SEX PARTNERSHIPs 455, 455-56 (Robert Wintemute & Mads Andenaes eds., 2001);
Note, Inching Down the Aisle: Differing Paths Toward the Legalization of Same-Sex Marriage in the United
States and Europe, 116 HARv. L. REv. 2004, 2004 (2003); see also Elizabeth F. Emens, Monogamys Law:
Compulsory Monogamy and Polyamorous Existence, 29 N.Y.U. REV. L. & Soc. CHANGE 277, 376(2004). When
the Supreme Court struck down the federal Defense of Marriage Act (DOMA) in United States v. Windsor in
June 2013, the ruling opened the door to federal recognition of same-sex marriage. It may also have some
unintended side-effects, easing the path to plural marriage-better known as polygamy-both legally and in
the court of public opinion. DOMA defined marriage as "a legal union between one man and one woman as
husband and wife." While DOMA obviously prohibited gay marriage (by requiring that a marital unit consist
of a man and a woman), it also enshrined the prohibition against polygamy, by requiring that such a union be
between only one man and one woman.

4 See Adrien Katherine Wing, Polygamy from Southern Africa to Black Britannia to Black America: Global
Critical Race Feminism as Legal Reform for the Twenty-First Century, II J. CONTEMP. LEGAL ISSUES 811,
812 (2001); The Marriage Act, No. 77 (2012), KENYA GAZETTE SUPPLEMENT No. 179, available at http://www.
kenyalaw.org/kl/fileadmin/pdfdownloadsfbills/2012/TheMarriageBill2012.PDF (a recent bill in the Kenyan



COLUMBIA JOURNAL OF GENDER AND LAW

Showtime's Polyamory: Married and Dating have brought the concept of plural marriage
into the nation's collective living room. Polyamory, the practice of having more than one
intimate relationship at a time with the knowledge and consent of everyone involved, has
even been called "the next civil rights movement."'

The discussion of polygamy presents valuable angles for reconsidering the
contemporary marriage debate. First, plural marriage raises novel questions beyond those
presented by gay marriage because it turns not on the idea of who can be in a marriage, but
rather on the very institution of marriage itself as consisting of a two-and-only-two part
unit. Second, plural marriage, unlike gay marriage, represents an alternative bundling of
marital principles that may be described as "traditional" within a broad range of cultures
and religious communities.6 In this context, an examination of what a religious tradition
has had to say about marriage over time can inform our understanding of what religion is
capable of saying about the topic today.

This Article will focus on the history of polygamy in the Jewish tradition and will
examine why, after millennia of experimentation, a religion walked away from a practice it
had once legitimized. We will follow this history through the various streams of Jewish law
and tradition, and watch as the debate slowly shifts from a question of legality to morality,
from "could" to "should." We will focus on three historical realities over time that make

Parliament that would legalize polygamy). In August of 2012 the first polygamous civil union was granted
in Brazil. See Kate Beioley, First Polygamous Civil Union Granted in Brazil, ARG. INDEP. (Aug. 29, 2012),
available at http://www.argentinaindependent.com/currentaffairs/brazil-first-polygamous-civil-union-granted-
in-brazil/.

5 See Kirsten Andersen, Polyamory: The Next Civil Rights Movement?, LIFESITENEWS.COM (Oct. 29, 2012),
http://www.lifesitenews.com/news/polyamory-the-next-civil-rights-movement; Stanley Kurtz, Beyond Gay
Marriage, WKLY. STANDARD, Aug. 4, 2003, at 26; see also Jaime M. Gher, Polygamy and Same-Sex Marriage-
Allies or Adversaries Within the Same-Sex Marriage Movement, 14 WM. & MARY J. WOMEN & L. 559 (2008).

6 Plural marriage has existed since recorded history, across cultures, and across the world. Many of the major
world religions, including those in the Western tradition, have supported, condoned, or at least acknowledged
the practice of polygamy. See J. Patrick Gray, Ethnographic Atlas Codebook, 10 WORLD CULTUREs 86, 86-
136 (1998); Polygamy, NEW WORLD ENCYCLOPEDIA (Feb. 27, 2011), http://www.newworldencyclopedia.
org/p/index.php?title=Polygamy&oldid=950022; Campaign Against Polygamy And Women Oppression
International (CAPWOI), History of Polygamy, POLYGAMY STOP, http://www.polygamystop.org/history.html
(last visited Apr. 5, 2013); Paul Vallely, The Big Question: Whats The History of Polygamy And How Serious
A Problem Is It In Africa?, INDEP. (Jan. 6, 2010), http://www.independent.co.uk/news/world/africa/the-big-
question-whats-the-history-of-polygamy-and-how-serious-a-problem-is-it-in-africa-1858858.html (citing a
University of Wisconsin study that surveyed more than a thousand societies and found that of these just 186
were monogamous). Cf Blaine M.A. Robinson, Polygamy, BLAINEROBIsON.COM (Feb. 17, 2013), http://www.
blainerobison.com/concerns/polygamy.htm (listing 40 men in the Bible with multiple wives).

236 26.2



COLUMBIA JOURNAL OF GENDER AND LAw

sense of this evolution:

First, all of Jewish law is, at its core, an act of holding multiple values in a dialectic
tension. The rabbi, before he rules on the permissibility of the chicken, for example, is first
supposed to inquire about the finances of the individual asking and take into account the
time of day on the Sabbath Eve.7 The law has areas that shift, contextually, when multiple
legitimate values are at play. And so just because a particular action may be legal in one
generation or time period, does not mean that other arguments do not exist that would
militate against its continued legality, nor does it mean that additional factors might not
very well come into play in the future that would shift that sometimes precarious balance
in the opposite direction.

Second, for centuries, despite the fact that Jewish communities tended to be almost
entirely monogamous, the rabbis made sure that polygamy was still legal on the books, if
only to demonstrate the superiority of the rabbinic versus sectarian or Christian exegesis.
At this point in history, the moral value of monogamy outweighed the advantages of
polygamy enough, but only enough so that it was not practiced popularly on the practical
side, but the law still recognized the important polemical advantages the theoretical aspect
that its legality provided-especially if, on the ground, it was not costing the community
anything since no one was taking advantage of this particular allowance.

Third, the time eventually came when this calculus forever shifted. The outside pressure
of an increasingly monogamous, secular and Christian legal world gradually grew, and
at just the right moment it combined with multiple Jewish developments and concerns,
including at the forefront an internal pressure that had been building in the Jewish world to
fix the perceived gender inequalities of Jewish family law. Taken all together, the benefits
of officially outlawing polygamy now outweighed the benefits of even keeping it legal just
on the books, and so the above-mentioned factors led to the promulgation of two decrees,
commonly known as two of the bans of Rabbeinu Gershom. One dealt with unilateral
divorce, and one dealt with polygamy. Both served as an attempt to legitimize Jewish
family law both internally and to the outside world.

In tracing these strands of Jewish law's historical development, this Article sheds light
on the ways in which marriage norms within a religious community are mutable across

7 See, e.g., SHULHAN ARUKH, Yoreh Deah 69:6, I1.

8 There was a third such ban that dealt with not opening other people's mail, but that is not relevant for our
purposes.

26.2 237



COLUMBIA JOURNAL OF GENDER AND LAW

time and place, religious doctrine can adapt to the practical needs of the community, and
religious morality can ultimately serve as a progressive force in advancing women's rights.

Part I of the Article provides some initial background on the basic assumptions about
polygamy in Jewish society as well as a primer for navigating the basic sources and
authorities of Jewish law. Part II outlines the prevailing patterns, themes, and concerns
about polygamy in the Old Testament. Parts III, IV, V, and VI analyze the evolving
legal and scholarly commentary and interpretations of the Old Testament text as well
as changing marriage practices in the Second Temple, Tannaitic, Amoraic, and Gaonic
periods respectively. Part VII, VIII, and IX discuss the formal ban against polygamy in
the Rishonim period and its relationship to Judaism's evolving conception of marriage
generally. Finally, Parts X and XI discuss the geographic and temporal scope of the ban and
their connection to the internal and external factors that motivated it.

I. The Background Information

It is important at the outset to make one thing clear: the issue of polyandry was never a
discussion. The Seventh Commandment proclaims, "Thou shalt not commit adultery," and
adultery is defined as sexual intercourse between a married woman and a man other than her
husband. 0 Polyandry under Jewish law is by definition adultery, since it involves a married
woman having more than one sexual partner." The Talmud in Kiddushin unequivocally
states that: "A woman cannot be the wife of two [men]."' 2 Our discussion of polygamy,
then, is really all about polygyny, and while polygyny may have always been uncommon

9 Exodus 20:13; Deuteronomy 5:17.

10 See Numbers 5:11-31; BABYLONIAN TALMUD, Sanhedrin 51b; 84b; Maimonides, Mishneh Torah, Laws of
Marriage, Ch. 24.

11 The Babylonian Talmud in Kiddushin 7a records this distinction as a matter of social fact:

Rava said "[if a man said], 'Be betrothed to half of me,' [the woman] is betrothed. [If he
said], 'Half of you is betrothed to me,' then she is not betrothed." Abaye said to him, "How
does 'Half of you is betrothed to me,' differ so that she is not betrothed? [Is it because] the
Merciful One said '[When a man takes] a wife . . .', and not 'half a wife'? Here too, the
Merciful One said 'a man', and not 'half of a man."' [Rava] said to him, "Now, a woman
for a pair [of husbands] is not fit. But a man, is he not fit for two [wives]? And this is what
he is saying to her; 'If I wish to marry another, I will marry [her].'

BABYLONIAN TALMUD, Kiddushin 7a (translation by author) (citing Deuteronomy 24:1).

12 Rashi, commenting on the BABYLONIAN TALMUD, Kiddushin 7a.

238 26.2



COLUMBIA JOURNAL OF GENDER AND LAW

de facto, in the rabbinic tradition it was certainly recognized de jure.

A survey of the sources reveals several underlying reasons for the practice of polygamy.
Perhaps most importantly in a society that valued children, having many wives increased
the man's chances of having many children. Wives were often seen as providing spiritual
protection in that they kept their husbands from straying sexually; some have suggested that
the practice of polygamy resulted from the chastity enforced on a husband while his wife
was pregnant or nursing." In addition, while it was prestigious and a sign of prosperity to
be able to afford many wives, it also provided an economic advantage: having many wives
and children provided a ready labor supply. Historically, plural marriage served political
purposes through the forming of alliances. Occasionally, it was also used to provide support
for the helpless in times of surplus women.

A. A Jewish Law Primer

In order to better understand the flow of tradition this Article will summarize, a brief
introduction to the history of Jewish law is necessary. Jewish law, or halakha, denotes
the entire corpus of the Jewish legal system from its earliest sources in the Bible to
contemporary responsa. It includes public, private, ritual, and civil law. It legislates not
only that which is legal (things that law can compel or prohibit) but also the ethical and
moral dimensions of daily life, and it includes obligations both interpersonal and between
Man and his Maker.14 The term halakha was first employed by the early Rabbis (called
Tannaim, approximately 10-220 C.E.) to refer to an oral ruling handed down by the
religious authorities (as in the phrase halakha leMoshe miSinai, a law given to Moses at
Sinai). It later took on a broader scope, meaning the accepted or authorized opinion when
a ruling was in dispute. Eventually, halakha became the general term for the whole legal
system of Judaism. Halakha is traditionally thought to consist of two primary sources:
the Written Torah, which is comprised of the Hebrew Bible, and the Oral Torah, which,
according to traditional belief, was given alongside the written Torah and is represented in
the works of the Talmud and accompanying rabbinic literature."

13 See generally, JEWISH MARRIAGE 25 (Peter Elman ed., 1975).

14 Halakha encompasses practically all aspects of human behavior and experience: lifecycle events, joy
and grief, agriculture, commerce, personal, social, national and international concerns, etc. Reflecting this
comprehensive understanding of the function of law, the Hebrew word halakha is derived from the word
halach (literally, "to go"), following the statement, "Enjoin upon them the laws and the teachings, and make
known to them the way they are to go and the practices they are to follow." Exodus 18:20. It is the legal system
that outlines the way for properly living every aspect of one's life.

15 See Mark Goldfeder & Ira Bedzow, Early Modern Period: Jewish Law, in THE OXFORD ENCYCLOPEDIA

26.2 239



COLUMBIA JOURNAL OF GENDER AND LAW

The Pentateuch, or Torah, is said to contain 613 commandments, 248 positive and
365 negative prescriptions.' 6 Part of halakha is the enumeration of these commandments,
the formal declaration of the manner in which they are performed, and the penalty for
transgression. The Biblical books contained in the Prophets and Writings, which together
with the Torah represent the Hebrew Bible, were written during the 700 years following
composition of the Pentateuch. The Jewish biblical canon appears to have been completed
no later than the year 150 C.E. While the Prophets and Writings are traditionally understood
to have been written with divine inspiration, and certainly had considerable impact on both
the discourse and the homiletical material that appear in the primary documents of Jewish
law, they are of far less significance than the Torah for establishing either normative legal
or ethical norms."

The Torah is the touchstone of Jewish law, and according to religious tradition and
derived legal theory, it is the manifestation of the Divine word, as revealed to Moses at Sinai.
Torah means "instruction" or "teaching," and like all teaching it requires interpretation
and application. According to traditional belief, alongside God's revelation of the written
Torah, represented in the text was a collection of material originally handed down orally
from generation to generation. No legal system can exist on just a written text without
explanatory notes and clarifications, and so this material was made up of a variety of
additional laws, rules, explanations, and interpretive guidelines and tools. Although it was
later written down, it remains known as the Oral Law.'" The divine and therefore binding
nature of these two intertwined Torahs is the predicate belief of normative Jewish law. The
existence of the dual system accounts for two basic features of Jewish life: the chain of
tradition linking generations and the emphasis on Torah study.

The legal debates between the schools of Hillel and Shammai set in motion new debating
processes among the rabbinic teachers of first- and second-century Palestine, the Tannaim
(literally, teachers). The Tannaim were the first redactors of Jewish law, whose period
is closely associated with the editing of the Mishna, traditionally ascribed to Judah the

OF THE BIBLE AND LAW (Pamela Barmash et al. eds., 2013) [hereinafter Goldfeder & Bedzow, Early Modern
Period: Jewish Law].

16 See BABYLONIAN TALMUD, Makkot 23b.

17 See generally Emmanuel Rackman et al., Halakhah, Law in Judaism, in ENCYCLOPAEDIA OF JUDAISM (Jacob
Neusner et al. eds., 2d ed. 2005) [hereinafter Rackman et al., Halakhah].

18 For example, the Written Law prescribes: "You shall not do any work on the Sabbath"; the Oral Law
defines exactly which acts of labor constitute a violation of this injunction. See BABYLONIAN TALMUD, Shabbat
73a.

240 26.2



COLUMBIA JOURNAL OF GENDER AND LAw

Patriarch (commonly referred to by the simple honorific "Rabbi"). The Mishna, a redaction
of nearly all the main areas of Jewish law then extant, became the basis of subsequent
Jewish legal development and literature. It is composed of material thematically arranged
in six structural "orders." They deal with agricultural law, family law, civil and criminal
law, laws of Festivals, laws of the Temple, and laws relating to ritual purity.'9

The Tannaitic period saw the transformation of Jewish law in three crucial ways.
First, religious leadership was transferred from the triumvirate of king/priest/prophet to
the rabbis, who assumed the mantle of expositors of Jewish oral and written law, thereby
becoming the architects of authoritative rabbinic decrees and customs.2 0 Second, during this
period the oral law gradually came to be set in writing, a pivotal process that culminated
in Rabbi's decision to allow the creation of an authoritative writing down of the oral law,
fixed in the text of the Mishna. Finally, by the end of this period, after the Destruction of the
Second Temple, Judaism was firmly rooted in the Diaspora and no longer geographically
confined to the land of Israel. These three transitions caused profound changes in Jewish
law.21

The next five or six centuries saw the writings of the Babylonian and Jerusalem
Talmuds, two running commentaries on most sections of the Mishna with elaboration and
explanation of the rules and cases therein. They were written and edited by scholars called
Amoraim (those who recount the law) and to a lesser extent, towards the end of the period,
by the Savoraim (those who ponder the law) and the Geonim (geniuses of the Law). Once
the Mishnah had been compiled, it became a sacred text second only to the Bible. It became
axiomatic, for instance, that no Amora had the right to disagree with a Tanna in matters of
law unless he was able to adduce Tannaitic support for his view.22

The Jerusalem Talmud, compiling the interpretive traditions of the Rabbis in the Land
of Israel, appeared around the year 425 C.E. The Babylonian Talmud, which developed
in the Diaspora, underwent a much heavier editing process; it did not become fixed until
about a hundred years after its Jerusalem counterpart. As such, it is a more refined work,
and as a result, and for a variety of other reasons (the Babylonian Talmud is later than the
Jerusalem and hence able to override the decisions of the latter; the textual condition of

19 See generally MOSES MAIMONIDES, MAIMONIDES' INTRODUCTION To His COMMENTARY ON THE MISHNA (Fred

Rosner trans., 1994) [hereinafter MAIMONIDES, INTRODUCTION TO COMMENTARY].

20 See Rackman et al., Halakhah, supra note 17, at 789.

21 See id.

22 See Goldfeder & Bedzow, Early Modern Period: Jewish Law, supra note 15, at 787.

26.2 241



COLUMBIA JOURNAL OF GENDER AND LAW

the Babylonian Talmud is in a more satisfactory state; the Babylonian Geonim at Sura and
Pumbedita were in direct succession to the Babylonian Amoraim, so that the Babylonian
Talmud became 'our Talmud,' etc.) the authority of the Babylonian Talmud ultimately
eclipsed that of the Jerusalem Talmud, giving it far greater significance throughout most of
Jewish history."

Developing alongside the two Talmuds, and really also part of the Talmudic corpus,
were the Midrashei Halakha, compilations of rabbinic teachings so called because the sages
interpreted Scripture using a method called Midrash. There were two schools of Midrashic
thought, the schools of Rabbi Yishmael and Rabbi Akiva. The Midrashei Halakha record
the verse-by-verse expounding of the Scripture to substantiate halakhic rulings. Many early
halakhic rulings are therefore called Divrei Sofrim (the words of the scribes), although later
that term also shifted to mean rulings of rabbinic rather than scriptural origin. Much of the
Midrashic material makes its way into the two Talmuds as traditions or laws (known as
baraitot), recognizable because they usually begin with a scriptural quote.

The fundamental significance of the Talmudic literature to Jewish law cannot be
overstated. Jewish authorities accept that Talmudic law provides the base for all discussion
of Jewish law, and its authority is beyond dispute, such that the denial of said authority
effectively excludes one from the community of adherents. While the Talmud might in
certain circumstances be unclear, or accept more than one view as acceptable or even
normative, or at the very least cite several different views without explicit resolution of
the matter under discussion, it nonetheless sets the framework of analysis for all that is
Jewish within Jewish law. As Maimonides put it in the introduction to his Code, "All
Israel is obliged to follow all the statements in the Babylonian Talmud. Every city and
every province is compelled to conduct itself in accordance with the customs, decrees and
regulations instituted by the sages of the Talmud, since all Israel agreed to accept them." 24

The general assumption in the classical Jewish sources is that the halakhah in its entirety
goes back to Moses, except for various later elaborations, extensions, applications, and
innovations in accordance with new circumstances. Thus Maimonides in the introduction
to his Code counts forty generations backward from Ray Ashi, the traditional editor of
the Babylonian Talmud, all the way to Moses, and concludes: "In the two Talmuds and
the Tosefta, the Sifra and the Sifrei (names of Midrashic compilations), in all these are

23 See generally Gerald J. Blidstein, Halakhah: History ofHalakhah, in 6 ENCYCLOPEDIA OF RELIGION 3742-
47 (Lindsay Jones ed., 2d ed. 2005).

24 See MAIMONIDES, INTRODUCTION TO COMMENTARY, supra note 19, at 791.

242 26.2



COLUMBIA JOURNAL OF GENDER AND LAW

explained the permitted and the forbidden, the clean and the unclean, the liabilities and lack
of liability, the unfit and the fit, as handed down from person to person from the mouth of
Moses our teacher at Sinai ... . To it [the Talmud] one must not add and from it one must
not subtract." 25

Internal Jewish law consists of a hierarchy of authority. Those laws that are derived
directly from the scriptural text are referred to as Torah obligations. Laws whose source is in
statements of rabbinic scholars throughout the generations, from Moses to the present, are
called rabbinic decrees. The difference between the two lies not only in the type of penalty
that each demands if transgressed, but also in the type of consideration each must be given
in doubtful circumstances. In the case of doubt with regard to a Torah commandment,
one must lean towards stringency, while in the case of rabbinic decrees, on the other
hand, one may be lenient. 26 Rabbinic decrees are often meant to make a protective fence
around the Torah so as to hinder possible violations of the Torah commandments through
carelessness. Other types of rabbinic decrees are called gezerot (singular, gezerah) which
differ from other rabbinic rules in their source of authority. They need not be explicitly
exegetical nor directly related to Torah obligations, although they are often designed to
protect some Biblical ethic or ideal. 28 However, once a gezerah is decreed and has been
accepted by Jewry at large, it cannot easily be rescinded by later authorities.2 9 Similarly,
takanot (singular, takkanah) are rabbinic decrees that typically relate to social and economic
situations that may arise. Another component of rabbinic law is minhag (custom), which
can affect Jewish law depending on its strength of normativity.3 0

In the post-Talmudic era codification of the various strands of Jewish law became
a popular endeavor. Based on available manuscripts from such leaders as Ray Shereira
ben Hanina Gaon (900-940 C.E.) and Ray Hai Gaon (939-1038 C.E.), it appears that the
Geonic era was an active period of codification. In the medieval era# different approaches
arose with respect to codification. One genre that developed was responsa literature, in

25 Id.

26 See BABYLONIAN TALMUD, Beitzah 3b; JERUSALEM TALMUD, Erakhin 3:4.

27 See MISHNA, Avot 1:1.

28 See Michael J. Broyde & Mark Goldfeder, Contemporary Jewish Religious Movements: Orthodox, in
THE OXFORD ENCYCLOPEDIA OF THE BIBLE AND LAw (Pamela Barmash et al. eds., forthcoming 2014) [hereinafter
Broyde & Goldfelder, Orthodox].

29 MAIMONIDES, INTRODUCTION TO COMMENTARY, supra note 19.

26.2 243



COLUMBIA JOURNAL OF GENDER AND LAW

which individuals or communities addressed questions to major deciders of Jewish law.
These responsa were collected, and sometimes organized by topic. Another genre was
the systematic organization of Jewish law into codes. The greatest example of such a
code is Maimonides' Mishneh Torah, a fourteen-volume codex covering all aspects of
Jewish law. Another example is the Shulhan Arukh, written by Rabbi Joseph Karo, which
covers all aspects of daily living, but is not as comprehensive as Maimonides' code.3' The
Shulhan Arukh, together with the glosses of the Rabbi Moshe Isserless, became the most
authoritative code in the history of the halakha, and it marked a turning point in the history
of codification in that even when later authorities departed from its rulings, they did so with
extreme reluctance. Adherence to the halakha as represented by the Shulhan Arukh became
the test of Jewish fidelity and attachment to Orthodoxy, especially in the modem period
when denominational divergence began. Its rulings are still authoritative, even if not the
final authority, for halakhic Jews everywhere.

In looking at polygamy through the lens of Jewish tradition and specifically through
Jewish law-the primary vehicle for the transmission of Jewish values throughout the
ages-this Article will not attempt to quote every statement, law, or saying about polygamy,
or co-wives-just the ones that have in some way or another left a mark or made an impact
on the tradition. Nor will it quote every responsa, even by major rabbis; there are hundreds
that touch upon the idea and practice of polygamy, many of them similar, and so instead
of providing string citations I have sifted through them for the ones that, in my opinion,
best make the relevant points. The viewpoint for this work is that of an internal Jewish
law scholar, and so references to the Old Testament, Talmud, and Midrashic lore will see
those texts, and Jewish law in general, as comprising a unified code for a coherent and
continuous set of norms for a community (albeit one that has dynamically developed over
time), which is the way that it is and has been seen by its traditional practitioners.32 It
will include a discussion of the development of divorce law in halakha, particularly as it
explains the changes in the Jewish marital structure."

31 Primarily in that it does not deal with laws seen only as relevant to a Temple-based society.

32 The Article focuses on historic and legal sources, and so, for the most part, will not discuss aggadaic
(homiletic or non-legal) or kabbalistic references to polygamy and proto-polygamy, unless and insofar as they
do come to bear on the authoritative understanding of the Jewish position.

33 Ability to divorce freely and polygamy are frequently linked. Condemnation of divorce, both historical
and even extant in the current pushback against the so-called American divorce revolution, along with popular
romantic terms like "soulmate" and "one and only" point towards an even stricter ideal model of monogamy,
an idea that Elizabeth Emens has called the fantasy of "supermonogamy." See Elizabeth F. Emens, Monogamy s
Law: Compulsory Monogamy and Polyamorous Existence, 29 N.Y.U. REV. L. & Soc. CHANGE 277, 376 (2004).

244 26.2



26.2 COLUMBIA JOURNAL OF GENDER AND LAW 245

II. The Old Testament

For Judaism and Jewish practice, everything eventually comes back to the Bible, and
so there is no better place to begin. In both the narrative and genealogical sections of the
Old Testament, there are numerous references to polygynous marriages, and there are quite
a few Biblical laws and passages that presuppose the existence of polygamy.

The very first commandment in the Bible ispru u'rvu (be fruitful, and multiply).34 This
commandment is repeated to Noah and his sons when they exit the Ark after the flood,"
and is echoed again several times throughout the Biblical literature."

This commandment does three things. First, it sets the stage for the primary purpose
of polygamy: the increase of viable children." Second, the stage is also set immediately
for tension because the prototypical biblical marriage is, of course, that of Adam and
Eve, the first (and at that point the only) man and woman." Their relationship is patently
monogamous, as no one else even exists.39 In addition, the Bible notes that a man

34 Genesis 1:28.

35 Genesis 9: 1.

36 While marriages were clearly often contracted for the creation of progeny or for political alliance, Claire
Gottlieb notes: "The element of romance is also not entirely lacking in the Biblical saga, especially from the
Patriarchal narratives to the end of the United Monarchy." Claire Gottlieb, Varieties of Marriage in the Bible
and Their Analogues in the Ancient World, at ix (1989) (unpublished Ph.D. dissertation, New York University)
(on file with New York University). The Babylonian Talmud develops the parameters of this commandment to
procreate in Yevanot 61 b-64a (translation by author), quoted in Robyn Weiss Frisch, Haray Aten Mekudashot
Li: A Study of Polygamy in Judaism from Biblical Through Rishonic Times, at 19 (2000) (unpublished Ph.D.
dissertation, Hebrew Union College-Jewish Institute of Religion, Brookdale Center) (on file with author); see
also Shulchan Aruch, Even HaEzer 1.

37 See Psalns 127:3-5 ("Children are a heritage from the Lord, offspring a reward from Him. Like arrows in
the hands of a warrior are children born in one's youth. Blessed is the man whose quiver is full of them. They
will not be put to shame when they contend with their opponents in court.") (translation by author).

38 It is interesting to note, however, that the Torah never speaks of their union as a "marriage" per se, unless
one translates the words ish and isha in Genesis 2:23 as "husband" and "wife" (a valid translation although not
the common one) as opposed to "man" and "woman," as they are usually translated. The verse would then read:
"Then the man said, 'This one at last is the bone of my bones and the flesh of my flesh. This one shall be called
"Wife" (Isha) for from "Husband" (Ish) was she taken."'

39 While it is true that late Jewish mysticism believed in a demon woman named Lilith who is said to have
been the first wife of Adam, such an understanding has never been used in a historical or legal normative
context for family law. See ISRAEL ABRAHAMS, JEWISH LIFE IN THE MIDDLE AGES 114 (1932).



COLUMBIA JOURNAL OF GENDER AND LAW

clings to his wife and the two "become one flesh,"40 leading to the assumption by many
scholars that the Bible introduced monogamy as an ideal before accepting polygamy as
a compromise, the difficulties of which were then laid out in detail in the telling of the
lives of the patriarchs.4

1 Nevertheless, in the Rabbis' view even an example set by God in
ordering the world essentially belonged to the domain of aggadah (homiletics), and does
not supply an adequate foundation for a specific halakha.4 2 The Rabbis might appeal to
God's example when enunciating general rules of religious, moral, or prudent conduct,43

or would reference it when elucidating a halakhic principle already established on other,
proper legal grounds, but would go no further. (This is in direct contrast to a verse like
Genesis 5:2, "male and female he created them," which the Rabbis do cite in a legal context
pertaining to how many children a man must have. Here, the primary duty of procreation,
i.e., the commandment of "pru u'rvu," has already been established by an actual precept,
"Be fruitful and multiply." The second verse is brought merely to give a more exact
understanding of what that meant.")

40 Genesis 2:24.

41 See LAWRENCE H. SCHIFFMAN, FROM TEXT TO TRADITION: A HISTORY OF SECOND TEMPLE AND RABBINIC JUDAISM
257 (1991). From a Christian point of view, see also William B. Kessel, Address at the Ariz. District Pastoral
Conference First Lutheran Church, Prescott, Ariz. (May 5-6, 1998) (citing LUTHERAN CYCLOPEDIA 626 (Erwin
L. Lueker ed., 1975)):

The fact that polygamy was (e.g., in the Old Testament) and is practiced does not justify it. Scripture
does not present it as God's intent, or as God-pleasing, or as an example to follow. Is it possible,
however, that God permitted polygamy to stand among the patriarchs to serve as a bad example
or warning? Consider the plight of Abram and Sarai. Their polygamous household was anything
but tranquil (Genesis 16:4-6). Problems between the co-wives translated into difficulties with their
children (Genesis 21:9-11). Later Jacob loved his wife Rachel more than her co-wife and sister
Leah (Genesis 29:32). This led to jealousy between the two (Genesis 30:1, 8). Then again, there was
bitter strife between Elkanah's two wives Hannah and Peninnah (1 Samuel 1:2). However, if God
permitted polygamy to stand as an example not to be followed, then one wonders why conflict among
David's wives-Michal, Abigail, Ahinoam, Maacah, Haggith, Abital, Eglah, and Bathsheba-is not
mentioned. Likewise familial disputes between Solomon and his 700 wives and Rehoboam and his
dozen-and-a-half brides escape the lasting censor of Scripture.

42 See DAVID DAUBE, THE NEW TESTAMENT AND RABBINIC JUDAISM 76 (1956).

43 See infra Part VA. for Rabbi Yehuda ben Beteira's statement that Job's rationale was: "If Adam was
intended to have ten wives, they would have been given to him. But he was intended to marry only one wife.
So too my wife is enough for me. My portion is enough." He does not even cite to a specific verse, a clear sign
that he is speaking aggadaically, and not with legal precision. DAUBE, supra note 42, at 76-77.

44 DAUBE, supra note 42, at 78; see infra Part V.B. (discussion of the Zadokite fragments, and accompanying
notes).

246 26.2



COLUMBIA JOURNAL OF GENDER AND LAw

Finally, the commandment ofpru u'rvu actually sets the stage for the idea of a biblically
prescribed polygamy.

A. Polygamy as Religious Obligation

The Rabbis of the Mishna in Yevamot 6:6 teach us:

No man may abstain from keeping the law "Be fruitful and multiply,"
Genesis 1:28, unless he already has children: according to the School of
Shammai, two sons; according to the School of Hillel, a son and a daughter,
for it is written, "Male and female He created them." Genesis 5:2. If he
married a woman and lived with her ten years and she bore no child, it is
not permitted him to abstain [from fulfilling this legal obligation]. If he
divorced her she may be married to another and the second husband may
live with her for ten years. If she had a miscarriage the space [of ten years]
is measured from the time of the miscarriage. The duty to be fruitful and
multiply falls on the man but not on the woman. R. Johanan b. Baroka
[dissents from this view and] says: Of them both it is written, "God blessed
them and God said to them, Be fruitful and multiply." Genesis 1:28.45

The husband of the barren wife who is required to fulfill his obligations is therefore left
with only one of two choices: divorce his wife or marry a second one. The latter option is
explicitly spelled out in the Mishna in Sotah, 4:3: ". . . Rabbi Eliezer says, 'He can marry
another woman to procreate through her."'

The Tosefta in Yevamot 8:6 deals with the problem of what happens to the infertile wife
once it is confirmed that she is the problem: "And to how many husbands is she permitted
to be married [until we are sure that she is the infertile one]? Three. Beyond that she should
only be married to someone who has a wife and children."4 6 The Talmud in Ketubot sees
Abram's taking of Hagar in addition to Sarai after ten years of living in Israel as a Biblical
reference to this practice.47

45 See also TOSEFTA, Yevamot 8:5.

46 The man, however, seems to have no similar limitation, but must continue to try and have children with
other women. In fact, the famous statements of Rava and Ray Ammi discussed at length below come up in the
context of a discussion of a man who wants to marry another woman in order to test his virility. See infra note
193 and accompanying text; BABYLONIAN TALMUD, Yevamot 65a.

47 See BABYLONIAN TALMUD, Ketubot 77. The relationship between divorce and polygamy is also highlighted
here, and will come up again in the discussion of remedies for gender-based inequalities built into the structure

26.2 247



COLUMBIA JOURNAL OF GENDER AND LAW

The idea of monogamy as an ideal is reinforced by the oft-repeated biblical metaphor
of Israel as God's unfaithful but still beloved, and ultimately only wife, as well as by several
verses that seem to indicate a definite monogamous preference, such as Ecclesiastes 9:9
("Enjoy happiness with a woman you love all the fleeting days of your life that have been
granted to you under the sun. . . .") and Psalms 128:3 ("Your wife shall be like a fruitful
vine within your house; your sons like olive saplings around your table.").48

Still, while there are no biblical passages that seem to indicate an actual preference
for polygamy, there are plenty of legal passages that acknowledge its existence and even
approve of it.49 Aside from the many tales of multiple wives, the Bible assumes that female
slaves will marry either their owner or his son, 0 regardless of whether or not they are
already married. Elsewhere, the text is explicit that "[i]f a man (who is already married)
marries another woman, he must not withhold (from his first wife) her food, her clothing,
or her conjugal rights."' The Torah also discusses what to do when bequeathing property to
sons bom from multiple wives in a situation where one wife is loved more than the other.52

The rules of levirate marriage" compel a man (in certain circumstances) to marry
his childless brother's widow, regardless of whether or not the man is already married
to his own wife. This is important because it is one of the only times (aside from the
case of barrenness, above) that the taking of a second wife could be construed as actually
fulfilling a commandment.54 The Children of Israel are warned that their king should not

of Jewish marriage laws.

48 See also Isaiah 50:1; Jeremiah 2:2; Ezekiel 16:8; Proverbs 12:4, 18:22, 19:14, 31:10-31.

49 See Frisch, supra note 36, at 22-23.

50 Exodus 21:7-9.

51 Exodus 21:10 (translation by author).

52 Deuteronomy 21:15-17.

53 Deuteronomy 25:5-10; see infra Part IV (discussing Levirate Marriage).

54 Indeed, while the text of the Bible itself does not specifically state that a married brother can perform
levirate marriage, and so one might have thought this was ambiguous, the Rabbis in the MISHNA, Yevamnot 4:11
state unequivocally that: "Four brothers married four women and died. If the oldest of them [i.e., the remaining
brothers] wants to take them all in levirate marriage, the authority is in his hand." Note that there were several
other options available here: the younger brothers could each have taken a wife, or the oldest brother could have
done chalitzah, the un-shoeing ceremony, an alternative to levirate marriage, on all but one. Clearly, avoiding
polygyny was not a priority here.

248 26.2



COLUMBIA JOURNAL OF GENDER AND LAW

have too many wives," while Deuteronomy discussion of the "beautiful captive" 6 seems
to be given in a polygamous context, as it too does not differentiate between married and
unmarried soldiers.

B. Polygamy's Benefits

In biblical times, the benefits to a man of having multiple wives were obvious and
many. Aside from increasing a man's chances of having more offspring, multiple wives
and concubines served as a sign of wealth and power." They also supplied a man with
enough people to work the fields and tend the flocks." A woman, meanwhile, may have
preferred the status of a wife, even a secondary wife, to that of spinsterhood, or to living
under the jurisdiction of a father or a brother.5 9 Isaiah 4:1 points out that especially in times
of national turmoil, multiple women would be content to take the name of one husband:
"In that day, seven women shall take hold of one man, saying, 'We will eat our own food,
and wear our own clothes, only let us be called by your name; take away our disgrace.'
Polygamous marriages were also entered into for political reasons; Solomon, for example,
used his marriage alliances with foreign women to establish cordial relations with the
nations around him.'0 Aside from the reference to the king noted above, the Torah places
no limit on how many wives a man can have.

55 Deuteronomy 17:17. This verse actually reflects the exact opposite ambiguity of the verse in Genesis; the
word here is nashim (plural of isha) and although it usually is not in this context, could also be translated as
"women," which would presumably include concubines as well as full-fledged wives. Note that the Damascus
document of the Dead Sea Scrolls sees this not as a prohibition on the king alone, but as an indication that the
king should be an example to his people, who should all refrain from having multiple wives.

56 Deuteronomy 21:10-14.

57 See Frisch, supra note 36, at 26. "Note that throughout the biblical and Talmudic literature, the only
references we find to actual polygamists are among the rich and powerful. This is not to necessarily say that the
common man could not be or was not also polygamous, just that we lack any evidence that this was in fact the
case." Id. at 9 (quoting RACHEL BIALE, WOMEN AND JEWISH LAW: THE ESSNTIAL TEXTS, THEIR HISTORY, & THEIR

RELEVANCE FOR TODAY 50 (1984)).

58 Id.; see, e.g., Genesis 34:7 (Jacob and his children).

59 See Frisch, supra note 36, at 26 (quoting Gottlieb, supra note 36, at 86).

60 See Chaim Pearl, Marriage Forms, in JEWISH MARRIAGE, supra note 13, at 24-25.

26.2 249



250 COLUMBIA JOURNAL OF GENDER AND LAW 26.2

C. Polygamy as a Tolerated Practice

The first example of polygamy in the Bible is that of Lamech and his two wives,
Addah and Zillah. 6' Although the influential commentator Rashi62 states that having two
wives was the custom of the generation of the flood, Lamech's bigamy is the only recorded
case of polygamy in the antediluvian period." Other famous polygamous men from the
Genesis narrative include Abraham (married to Sarah, and later, Hagar the concubine6),
Abraham's brother Nahor (married to Milcah and his concubine Reumah6

1), Jacob (married
to Leah and Rachel, along with the concubines Bilhah and Zilpah), Esau (married to Judith,
Basemath, Mahalath, Adah, and Oholibamah), and Esau's son Eliphaz.66

Throughout the Prophets and Writings we encounter Gideon (who had "many wives" 67),
King Saul (who had multiple wives, although no exact number is given 68), King David
(who had seven wives before he reigned in Jerusalem, 9 and then took additional wives
and concubines when he left Hebrono), King Solomon (seven hundred royal wives and
three hundred concubines"), King Mennasseh (at least one concubine72 ), Shaharaim (three

61 Genesis 4:19; see also Midrash Genesis Rabbah 23:3 (seeming to find Lamech's polygamy distasteful, as
he kept one wife for pleasure and one for children).

62 Rabbi Shlomo Yitzchaki of France, (1040-1105); see Rabbi Shlomo Yitzchaki, commenting on Genesis
4:19.

63 Frisch, supra note 36, at 28.

64 By the time that Abraham married his second wife, Keturah, Sarah had already died. See Genesis 25:1.

65 Genesis 22:20-24.

66 The text to Genesis 36:11 does not mention his wife's name, only his sons' names, but Genesis 36:12
tells us that Timna was his concubine and bore him an additional son, Amalek. Genesis 46:10 implies that
Jacob's son Simon had a second wife, a Canaanite woman, although it is not clear if those wives were, in fact,
concurrent. The text to Genesis 36:11 does not mention his wife's name, only his sons' names, but Genesis
36:12 tells us that Timna was his concubine and bore him an additional son, Amalek.

67 Judges 8:30 (Gideon had seventy sons of his own issue, for he had many wives).

68 2 Samuel 12:8.

69 2 Samuel 3:2-5, 14.

70 2 Samuel 5:13.

71 1 Kings 11:3.

72 1 Chronicles 7:14.



COLUMBIA JOURNAL OF GENDER AND LAW

wives, unclear how many concurrent"), King Rehoboam of Judah (eighteen wives and
sixty concubines, and who sired twenty eight sons for whom he sought many wives"),
Abia (fourteen wives and an unknown number of concubines"), and King Jehoash (two
wives7 6). In Samuel I and II, the only recorded polygamist aside from the royal monarchs
is Samuel's father Elkanah (married to Hanna and Penina7 ).8

In terms of the way the Bible thought about polygamy, none of these polygamous
men are ever criticized for having multiple wives. Even King Solomon, whose many
wives famously led him astray, was criticized not for marrying too many women, but for
marrying women who were unsuitable because they were from among the nations with
which God had prohibited the Israelites from intermarrying. 9 Still, others claim that the
Bible is written in a way which already presupposes that monogamy was the general rule,
pointing to verses such as Deuteronomy 20:7 ("And who is the man who has betrothed a
wife") and 24:5 ("when a man takes a new wife"), which, although they don't proscribe
polygamy, seem to indicate that it might not have been favored or the norm. 0 They also
note that great men such as Moses and Aaron lived monogamous lives."' Others cite to the
thirty-first chapter of Proverbs, as well as several of the Psalms, which seem to speak of
and praise a monogamous union.82

73 1 Chronicles 8:8-9.

74 2 Chronicles 11:21, 23.

75 2 Chronicles 13:21.

76 2 Chronicles 24:3.

77 Gottlieb, supra note 36, at 86 (citing ROLAND DE VAUX, ANCIENT ISRAEL VOL. 1, SOCIAL INSTITUTIONS 25
(1965)) (noting that Elkanah traced his lineage back to Kohath, the son of Levi, so in reality he was not an
ordinary commoner). In general, Samuel, like all the Biblical books, records the activities of the elite. But
see Yalkut Shimoni, I Samuel 1:2; Midrash Shmuel, I Samuel 1:2; Pesikta Rabasi, ch. 43 (seeming to justify
Elkanah's polygamy due to Penina's barrenness).

78 See I Chronicles 7:4 (implying that polygamy may have been common at that time amongst the tribe of
Issachar).

79 1 Kings 11:4-5; see Frisch, supra note 36, at 30.

80 See MOSES MIELZINER, THE JEWISH LAW OF MARRIAGE AND DIVORCE 28 (1884) [hereinafter MIELZINER,
JEWISH LAW 1884]. Mielziner also sees such commandments as the prohibition to neglect one's conjugal duties
toward one's wife on account of another (Exodus 21:9) as designed to make polygamy practically difficult.

81 Id.

82 See Pearl, supra note 60, at 27.

26.2 251



252 COLUMBIA JOURNAL OF GENDER AND LAW 26.2

It was possible, as in the cases of Esau and Jacob, for a man to have multiple wives of
equal position and rank." Oftentimes in ancient Israel, as in other polygamous societies,
polygamy resulted in antagonism between the wives, whether because one was more
favored (Rachel and Leah84) or because one was barren and the other bore children (also
Rachel and Leah, as well as Hannah and Peninnah"). As noted above, Deuteronomy
recognized the potential for this problem, stating that "if a man has two wives, one loved
and the other unloved ....

The practice of a barren woman giving her husband her handmaid to bear children "on
her (the wife's) knees"-i.e., a form of surrogate motherhood-was common in the Bible,
and indeed in the Ancient Near East generally"; Rachel" and Leah,"9 for example, both
gave Jacob their handmaids, Leah even despite the fact that she had already borne some
children. 90

It is debatable whether or not the practice of concubinage falls under the rubric of
traditional polygamy-the concubine was not "married" to the master, and while her status
was higher than that of a slave, it was lower than that of a wife and oftentimes (as in the
cases of Sarah and Hagar, Leah and Zilpah, and Rachel and Bilhah) she even belonged
to the primary wife. Still, there was a committed sexual relationship between two people
in addition to any other wives a man might have, which was exclusive on the part of
the woman. In many ways this looks like polygamy, as opposed to just an open sexual

83 See Frisch, supra note 36, at 38.

84 Genesis 29:30.

85 1 Samuel 1:1-6.

86 Deuteronomy 21:15-17. In De Vertutibus 115, Philo of Alexandria echoes the Rabbinic sentiment that if
one takes a "beautiful captive" as a wife, jealousy will ensure when the older wife is superseded by a newer
wife. PILO OF ALEXANDRIA, ON VIRTUES: INTRODUCTION TRANSLATION, AND COMMENTARY (trans. Walter Wilson,
2011).

87 See VICTOR HAROLD MATTHEWS & DON C. BENJAMIN, OLD TESTAMENT PARALLELS: LAWS AND STORIES FROM

THE ANCIENT NEAR EAST 47 (1997); see also John C. Jeske, Genesis, in THE PEOPLE'S BIBLE 145 (Roland Cap
Ehlke & John C. Jeske eds., 199 1); Stuart A. West, The Nuzi Tablets: Reflections on the Patriarchal Narratives,
10 Bible and Spade 68 (1981).

88 Genesis 30:3.

89 Genesis 30:9-13.

90 For our purposes, the terms amnah (handmaid), shifchah (maid or female slave), and pilegesh (concubine)
all refer to the concubine.



COLUMBIA JOURNAL OF GENDER AND LAW

relationship. In addition, the reasons for having a concubine are the same as the reasons for
having multiple wives: not only was it prestigious, having many concubines also increased
the man's chances of having many children and a steady stream of helpers (while at the
same time being somewhat less expensive, and avoiding some of the pitfalls of rivalry
that co-wives might engender 91). For some parts of this discussion then, we will equate the
practices of polygamy and concubinage, noting here at the outset that this was not the case
in all societies and at all times. 2

Louis Epstein makes the argument that the tradition of polygamy among the Hebrews
was from time immemorial directly related to the outside culture of which they were a
part.93 It is true that polygamy did prevail among most ancient oriental nations, 94 but not
all; thus we find Abraham maintaining a matriarch in Sarah, as per Babylonian restrictions,
while Esau, who, unlike Jacob remained in Canaan, participated fully in the Canaanite
pattern of full and equal polygamy.95 That might explain why Jacob's father-in-law, Laban,
seeking to preserve his daughters' dignity, made Jacob swear before he returned to Canaan
that he would take no other wives to rival them.96 Epstein argues that if the majority of
the Hebrews in Canaan and later in Egypt did not practice polygamy, it was mostly due
to practical considerations; only the chieftains could afford it even though the law did not
forbid it.97

91 Although not always; after Hagar conceives from Abraham when Sarah could not, Sarah is lowered in her
eyes, and responds by treating Hagar harshly. See Genesis 16:4-6.

92 Classical Roman law, for instance, allowed members of the Senatorial order to take as concubines women
who they would otherwise not be permitted to marry. Since the relationship was devoid of legal basis, it did not
stand in the way of another, legal relationship. See F. SCHULZ, CLASSICAL ROMAN LAW 137 (1951). In the year
325 C.E., however, an edict was issued forbidding a man to take a concubine in addition to his wife, while a
later version expressly prohibited the taking of a second wife while the first was alive. These decrees received
further confirmation at the Councils of Toledo (400 C.E.) and of Rome (402 C.E.). See ZE'Ev W. FALK, JEWISH

MATRIMONIAL LAW IN THE MIDDLE AGES 22 (1966) [hereinafter FALK, JEWISH MATRIMONIAL LAW].

93 Louis M. EPSTEIN, MARRIAGE LAWS IN THE BIBLE AND THE TALMUD 8-9 (1942) [hereinafter EPSTEIN,

MARRIAGE LAWS].

94 MOSES MIELZINER, JEWISH LAW OF MARRIAGE AND DIVORCE 28 (2d ed. 1901) [hereinafter MIELZINER, JEWISH
LAW 1901].

95 See Frisch, supra note 36, at 38 (citing Gottlieb, supra note 36, at 87).

96 Genesis 31:50.

97 Epstein offers an interesting conjecture that perhaps Egyptian culture affected Jewish monogamy in one
very particular way, i.e., outlawing polygamy amongst the priests. EPSTEIN, MARRIAGE LAWS, supra note 93, at
10. The Mishna assumes that the High Priest had only one wife (MISHNA, Yoma 2a), and we see a later reflection
of this in the New Testament (1 Tmothy 3:2 and Titus 1:6), which prohibits polygamy to bishops.

26.2 253



COLUMBIA JOURNAL OF GENDER AND LAW

Most assume that even though polygamy was clearly sanctioned, it was not extensively
practiced even in Biblical times except by the leaders and the wealthy." Polygamy was
a privilege of the rich, and while a poor Israelite might desire having a number of wives
(along with their attendant slaves and children) to help him in his household, his financial
standing would probably make this arrangement highly impracticable." Also note that
in almost every situation, polygamy in the Biblical era already leads to strife, pain, and
discord.

III. Second Temple Period

After the Old Testament, the next references we get to Jewish stances on polygamy
come from extant marriage contracts written during the time of the Second Temple period.'"0
One such document was found in Elephantine, a Jewish military colony in Egypt located
at the Southern end of a small island in the Nile. 0

1 The agreement, written in Aramaic and
dated to around the year 441 B.C.E., makes it clear that some men in this period did not
take a second wife because of an explicit agreement they had made with their first wives.
The relevant provision, written by the husband (Ashor) to the wife (Miphtahiah) reads as
follows:

And I shall have no right to say I have another wife besides Miphtahiah
and other children than the children whom Miphtahiah shall bear to me.
If I say I have children and wife other than Miphtahiah and her children,
I will pay to Miphtahiah the sum of 20 kerashin, royal weight, and I shall
have no right to take way my goods and chattels from Miphtahiah; and if
I remove them from her (erasure) I will pay to Miphtahiah the sum of 20
kerashin, royal weight. 102

98 Russell K. Ryan, And Then There Was One: An Analysis and Comparison ofPolygamy Among Jews and
Mormons, in 9 THE JEWISH LAW ANNUAL 209 (Institute of Jewish Law ed., 1991).

99 EPHRAIM NEUFELD, ANCIENT HEBREW MARRIAGE LAWS 118 (1944). He does, however, think that bigamy
alone might have been somewhat common, although many do disagree.

100 After the destruction of the First Temple in 586 B.C.E., the Jewish people went into exile in Babylonia.
When the Persian King Cyrus defeated Babylonia in 539 B.C.E., he offered the Jews living under his rule the
chance to return to their homeland and rebuild the Temple. While some did return, many remained in Babylonia
and other areas in which they had settled during the Diaspora. See DAVID J. GOLDBERG & JOHN D. RAYNER, THE

JEWISH PEOPLE: THEIR HISTORY AND THEIR RELIGION 51-53 (1992).

101 Elephantine, in 6 ENCYCLOPAEDIA JUDAICA 311, 312 (2007).

102 Frisch, supra note 36, at 52 (citing ARAMAIC PAPYRI OF THE FIFTH CENTURY, B.C. 45-46 (A. Cowley ed.,

254 26.2



COLUMBIA JOURNAL OF GENDER AND LAw

As noted above, this provision has possible Biblical precedent; when Laban encounters
Jacob in Genesis 31:50, he adjures him not to take any additional wives other than his
daughters, Rachel and Leah: "If you ill-treat my daughters, or take other wives besides my
daughters, though no one else be about, remember, God Himself will be witness between
you and me." (emphasis added)."' According to Ze'ev Falk, however, the clause in the
Elephantine marriage contract prohibiting polygyny was drawn less from the Bible and
more from the influences of the community's non-Jewish neighbors.'" Falk is careful to
point out though that just because the format of inserting a specific clause in a marriage
contract to restrict polygyny may have been borrowed by Jews from their gentile neighbors,
"[i]t does not necessarily follow that the tendency to monogamy was also a result of foreign
influences."'10 The tendency toward monogamy could have come from within the Jewish
community, which then borrowed a formal medium from surrounding non-Jewish culture.

Texts found among the Dead Sea Scrolls at Qumran, from the library of the sectarian
Jews that lived there, condemn marriage to one's niece, 0 6 divorce, and polygamy, calling
all of them zenut (fornication).' One scroll, commonly referred to as the "Damascus
Document," has been dated to the late first century B.C.E. It states'08:

[They] are caught by two (snares). By unchastity, (namely), taking two
wives in their lives, while the foundation of creation is "male and female

1967)) (citations omitted). Other such examples of agreements wherein the husband writes that he will refrain
from taking a second wife because of an agreement with the first one have been preserved in similarly written
Babylonian and Assyrian documents. See Monogamy, in 14 ENCYCLOPAEDIA JUDAICA 447,447-48; FALK, JEWISH

MATRIMONIAL LAW, supra note 92, at 5.

103 See also Louis M. EPSTEIN, THE JEWISH MARRIAGE CONTRACT: A STUDY IN THE STATUS OF THE WOMAN IN

JEWISH LAW 125 (2005) [hereinafter EPSTEIN, THE JEWISH MARRIAGE CONTRACT] (noting that while the clause
prohibits polygamy it does permit concubinage).

104 FALK, JEWISH MATRIMONIAL LAW, supra note 92, at 4-5, quoted in Frisch, supra note 36, at 53.

105 Id. at 5.

106 Not forbidden in the Torah. See BABYLONIAN TALMUD, Yevamot 62b.

107 See ROBERT EISENMAN, JAMES THE BROTHER OF JESUS: THE KEY TO UNLOCKING THE SECRETS OF EARLY

CHRISTIANITY AND THE DEAD SEA SCROLLS 40, 81, 104 (1997), cited in Frisch, supra note 36, at 58; see also LENA

CANSDALE, QUMRAN AND THE ESSENEs: A RE-EVALUATION OF THE EVIDENCE 53 (1997).

108 FLORENTINO GARCIA MARTINEZ, THE DEAD SEA SCROLLS TRANSLATED: THE QUMRAN TEXTS IN ENGLISH

(Wilfred G.E. Watson trans., 1994). To have two wives at once is, for the author of the Damascus Document,
a breach of the ordinance of creation. Book of Covenant of Damascus, in 5 ENCYCLOPAEDIA JUDAICA 397, 398
(2007).

26.2 255



COLUMBIA JOURNAL OF GENDER AND LAW

he created them."o'.And those who entered (Noah's) ark went two by
two into the ark. And of the prince"o it is written "Let him not multiply
wives for himself"" And David did not read the sealed book of the Torah
which was in the Ark (of the Covenant), for it was not opened in Israel
since the day of the death of Eleazar and Joshua and the elders. For (their
successors) worshipped Ashtoreth, and that which had been revealed
was hidden until Zadok arose, so David's works were accepted, with the
exception of Uriah's blood . . . .112

While this text is somewhat ambiguous-most importantly, it is not clear from the
context which person exactly is the subject of "in their lives," the husband (in which case a
man would be guilty of fornication for taking a second wife even if his first wife had already
died) or the wife (in which case it was only forbidden to take a second wife if the first wife
was still alive)-most scholars have understood it as a reference to polygamy."' If so,
the apparent claim that polygamy is actually biblically forbidden seems to be a complete

109 Genesis 1:27 (translation by author).

110 Deuteronomy 17:17 (translation by author). The word "prince" (nasi) here is a clear reference to the
king. See 2 THE DEAD SEA SCROLLS: HEBREW, ARAMAIC, AND GREEK TEXTS WITH ENGLISH TRANSLATIONS: DAMASCUS

DOCUMENT, WAR SCROLL, AND RELATED DOCUMENTs 21 n.41 (James H. Charlesworth ed., 1995).

Ill As mentioned above, Rabbinic exposition, apparently even sectarian exegesis, required an explicit
commandment as an anchor before it would use a homiletic verse to fill in the gaps. Thus the Zadokite's turn
to the Deuteronomic verse concerning kings as their base text, probably relying on a similar tradition to that
which the Rabbis quote in the Babylonian Talmud in the name of Rabbi Shimon ben Yochai; "all Israelites are
considered sons of kings." See DAUBE, supra note 42, at 85-96.

112 Damascus Document 4:20-5:5, translated in 2 THE DEAD SEA SCROLLS: HEBREW, ARAMAIC, AND GREEK

TEXTS WITH ENGLISH TRANSLATIONS: DAMASCUS DOCUMENT, WAR SCROLL, AND RELATED DOCUMENTS 19, 21 (James

H. Charlesworth ed., 1995). The author of the scroll here wishes to preempt the argument from history that
David, God's beloved servant, was polygamous and never criticized for it, noting that it was not David's fault
since in David's day the Torah was inaccessible; it had been sealed and hidden until Zadok (most likely Zadok
the High Priest in Solomon's time) arose. The author does note, however, that David was still punished for
having Bathsheba's husband Uriah killed.

113 See CHARLOTTE HEMPEL, DAMASCUS TEXTS (2000); see also SIDNEY WHITE CRAWFORD, THE TEMPLE SCROLL

AND RELATED TEXTS, COMPANION TO THE QUMRAN SCROLLS 81 (2000) ("CD 4.205.5 prohibits polygamy ('taking
two wives') and, evidently, divorce ('in their lives')."); JOHAN MAIER, THE TEMPLE SCROLL: AN INTRODUCTION,

TRANSLATION & COMMENTARY 16 (1985); LAWRENCE H. SCHIFFMAN, RECLAIMING THE DEAD SEA SCROLLS 82-83
(2000); BEN ZION WACHOLDER, THE NEw DAMASCUS DOCUMENT: THE MIDRASH ON THE ESCHATOLOGICAL TORAH OF

THE DEAD SEA SCROLLS: RECONSTRUCTION, TRANSLATION AND COMMENTARY 196 (2007); Joseph M. Baumgarten,
The Laws of the Damascus Document in Current Research, in THE DAMASCUS DOCUMENT RECONSIDERED.

JERUSALEM, ISRAEL MUSEUM, SHRINE OF THE BOOK 51-62 (1992).

256 26.2



26.2 COLUMBIA JOURNAL OF GENDER AND LAw 257

innovation,l 4 although there are those who claim that at least some members of the Karaite
sect also believed that it was biblically prohibited (they read the verse in Leviticus 18:18,
"Do not take your wife's sister as a rival wife," broadly, with sister meaning something
more akin to "neighbor")."'

It is interesting that while in the Torah the prohibition of the king having too many
wives is meant only for the king" 6 (and the same is true in the Temple Scroll found in
Qumran"'), when it is referenced in the Damascus Document, it is used for a different
purpose, i.e., to show that the king serves as an example to his subjects. "Just as [the king]
is not permitted to have more than one wife, so others are not.""' Perhaps the intent was
to benefit women, or to promote stable marriages, or was simply in keeping with general
Second Temple community attitudes."'9 It is also noteworthy that the Damascus Document
seems to have been written during the reign of King Herod,'2 0 and could have been written
as a critique of his and his supporters' polygamous ways as described in Josephus' Wars
and Antiquities.'2 '

114 Monogamy, in 14 ENCYCLOPAEDIA JUDAICA, 447,447-48 (1973).

115 Louis FINKELSTEIN, JEWISH SELF-GOVERNMENT IN THE MIDDLE AGES 23 (1972); see also ADOLF NEUBAUER,
GESCHICHTE DES KARAERTUMS 46 (1866), quoted in MARRIAGE AND ITS OBSTACLES IN JEWISH LAW: ESSAYS AND
RESPONSE 62 (Walter Jacob & Moshe Zemer eds., 2001) [hereinafter MARRIAGE AND ITS OBSTACLES].

116 Id.

117 Temple Scroll Column LVI, Verse 18, translated in FLORENTINo GARCIA MARTINEZ, THE DEAD SEA SCROLLS
TRANSLATED: THE QUMRAN TEXTS IN ENGLISH (Wilfred G.E. Watson trans., 1994).

118 SCHIFFMAN, supra note 113, at 130, quoted in Frisch, supra note 36, at 62-63.

119 See LENA CANSDALE, QUMRAN AND THE ESSENES: A RE-EVALUATION OF THE EVIDENCE 53 (1997), quoted in
Frisch, supra note 36, at 63.

120 King Herod had nine wives according to Josephus. FLAVIUS JOSEPHUS, ANTIQUITIES OF THE JEWS, BK. XVII
1.3 (Allen Wikgren ed., Ralph Marcus trans., 1963).

121 CANSDALE, supra note 107, at 53 (discussing the rules of relationships). Though Josephus wrote in
Antiquities of the Jews, Bk. XVII 1.2, that it is "an ancestral custom of [the Jews] to have several wives at the
same time," Josephus himself, who was married to three different women, was never married to more than
one woman at a time. Isaiah M. Gafni suggests that Josephus needed to include these explanatory notes in his
text because of the monogamy of the Roman Empire. Isaiah M. Gafni, The Institution of Marriage in Rabbinic
Times, in THE JEWISH FAMILY: METAPHOR AND MEMORY 21 (David Kraemer ed., 1989); see also Louis GINZBERG,
AN UNKNOWN JEWISH SECT 19 (Jewish Theological Seminary Am. trans., 1970). Ginzberg cites another Zadokite
document which took the Levitical law (18:18) against marrying a woman and her sister to refer to simply "a
wife together with another one," a definite linguistic possibility but also definitely not part of the mainstream
Jewish tradition. The Karaites would later use a similar exegesis.



COLUMBIA JOURNAL OF GENDER AND LAW

The apocraphylic literature does not deal with polygamy that often. 1 Esdras 4:29, for
instance, simply mentions that Apame was a.concubine of the king. The clearest statements
we get come from the book The Wisdom ofBen Sirah, otherwise known as Ecclesiasticus.
In regard to having multiple wives, Ecclesiasticusl22 writes: "It is a heartache and sorrow
when one wife is the rival of another." Later, he advises his audience, "Do not consult with
a woman about her co-wife."'23 The author, however, was not against marriage, per se, and
seemed to praise the monogamous lifestyle:

In three things I show my beauty and stand up in beauty
before the Lord and men;
Harmony among brothers, and friendship among neighbors,
And wife and husband suited to each other.124

And also:

Happy is the man who has a good wife!
The number of his days is doubled.
A noble wife gladdens her husband,
And he lives out his years in peace.
A good wife is good fortune;
She falls to the lot of those who fear the Lord,
Whether rich or poor, he has a stout heart;
And always a cheerful face.125

Overall, the materials available from the Second Temple period, both legal and
homiletic, seem to reflect a growing attitude in favor of monogamy. Despite the fact that
the majority of Jewish texts (with the exception of the Damascus Document 2 6) had not

122 JOSHUA BEN SIRACH, ECCLESIASTICUs 26:6, translated in THE APOCRYPHA (Edgar J. Goodspeed trans., 1989)
(c. 200-175 B.C.E.).

123 Id. at 37:11.

124 Id. at 25:1; see also id. at 26:19-24, 37:11.

125 Id. at 26:1-4.

126 In general, it is important not to overestimate the value of these scrolls even to the Dead Sea Sect living
in Qumran. While it is possible and even likely that these scrolls did represent their philosophy, it is also
possible that they were part of a larger collection or library, or that they reflected the views of one small group
or even one individual.

258 26.2



26.2 COLUMBIA JOURNAL OF GENDER AND LAw 259

outlawed the practice of polygamy at this time, it is likely that it was not common. 27 This
concept, of polygamy being legally valid but socially frowned upon, continued as a trend
in the Jewish communities throughout the Talmudic period.128

IV. The Tannaitic Period

The period of the Tannaim ("those who taught the Law") extends from the period of
Hillel the Elder at the end of the first century B.C.E. until the compilation of the Mishna by
Rabbi Judah HaNasi at the end of the second century C.E.129 The primary sources of Jewish
law passed down from the Tannaitic period are the Mishna (designed to preserve, clarify,
and systematize the rabbinic teachings surrounding the commandments in the Torah) and
the Tosefta (literally additional material; made up of material attributed to the Tannaim
that did not make the final cut in the redaction of the Mishna, but serves as a supplement
to it).' 30

While the majority of the material cited in these works is attributed to sages from this
era, it also contains some material attributed to sages dating back as early as 300 B.C.E.' '
Material from the Tannaitic period can also be found throughout the discussions in the
Babylonian and Jerusalem Talmuds, which, although they were compiled and redacted
later in the Amoraic period, preserve numerous stories, references, statements, and rulings

127 See Michael L. Satlow, Family, Jewish, in ENCYCLOPEDIA OF ANCIENT HISTORY 2629, 2629-30 (2013); see
also MICHAEL L. SATLOW, JEWISH MARRIAGE IN ANTIQUITY 325 (2001) [hereinafter SATLOW, JEWISH MARRIAGE IN
ANTIQUITY].

128 See Jack N. Lightstone, Roman Diaspora Judaism, in A COMPANION To ROMAN RELIGION 345, 362 (2007);
see also Michael L. Satlow, Marriage and Divorce, in OXFORD HANDBOOK OF JEWISH DAILY LIFE IN ROMAN TIMES
15 (Catherine Heszer ed., 2008).

129 As the last of the "pairs" mentioned in the Mishna in Avot who were responsible for maintaining the
chain of tradition of the Oral Law, and the author of the "seven rules of Hillel," the first compilation of the
technical exegetical that are to be used when expounding on the Biblical text, Hillel is generally credited as
changing the way that Torah was taught and laying the foundations of a new era. See Stephen G. Wald, Hillel,
in 9 ENCYCLOPAEDIA JUDAICA 108-10 (2007).

130 HERMAN L. STRACK & GUNTER STEMBERGER, INTRODUCTION TO THE TALMUD AND MIDRASH 149-50 (2d ed.
1996), cited in Frisch, supra note 36, at 75. According to Rabbinic tradition it was redacted by Rabbi Chiyah
bar Abba (an Amora, one of the rabbinic sages from the second through the fifth century living in Israel, active
from 290-320 C.E., and the last prominent scholar to be mentioned in the Tosefta), a relative and student of
Rabbi Judah HaNasi, in the late third or fourth century C.E. in Israel. See Tosefta, in 20 ENCYCLOPAEDIA JUDAICA
70-72 (2007).

131 LAWRENCE H. SCHIFFMAN, FROM TEXT TO TRADITION: A HISTORY OF SECOND TEMPLE AND RABBINIC JUDAISM
183 (1991).



COLUMBIA JOURNAL OF GENDER AND LAW

of the various Tannaim.

The Talmudic tractate Yevamot (literally "levirate marriages") deals with the legal rules
that arise from the description of levirate marriage contained in Deuteronomy 25:5-10:

If brethren dwell together, and one of them die, and have no child, the
wife of the dead shall not be married abroad unto one not of his kin; her
husband's brother shall go in unto her, and take her to him to wife, and
perform the duty of a husband's brother unto her. And it shall be, that the
first-born that she bears shall succeed in the name of his brother that is
dead, that his name be not blotted out of Israel. And if the man like not
to take his brother's wife, then his brother's wife shall go up to the gate
unto the elders, and say: "My husband's brother refuses to raise up unto
his brother a name in Israel; he will not perform the duty of a husband's
brother unto me." Then the elders of his city shall call him, and speak
unto him; and if he stand, and say: "I like not to take her"; then shall his
brother's wife draw nigh unto him in the presence of the elders, and loose
his shoe from off his foot, and spit in his face; and she shall answer and
say: "So shall it be done unto the man that doth not build up his brother's
house." And his name shall be called in Israel the house of him that had
his shoe loosed.

In addition to the polygyny that could occur when a married brother is biblically
required to perform levirate marriage, several other passages presuppose the existence of
polygyny.132 The teachings at the very beginning of the tractate, for example, Mishnayot
Yevamot 1:1-4, all make mention of co-wives in their discussions of the family, as do
many other Mishnayot and toseftas throughout the tractate."' Perhaps the most important
statement about polygamy and levirate marriage, however, comes from outside of Yevamot,
from the Mishna in Bechorot 1:7:

The duty of levirate marriage takes precedence over the duty of chalitzah
[i.e., the un-shoeing ceremony, in which the brother-in-law tells the court
that he will not perform his levirate duty] in the early days, when their

132 See Frisch, supra note 36 at 86.

133 See, e.g., Yevamot 15:4, where a co-wife is disqualified from testifying on behalf of a woman that her
husband is dead, since, as the commentators explain, there is a fear that due to the dislike co-wives have for
each other one will testify about the other falsely, so that she will marry someone else and then be prohibited to
the original husband. See also Yevamot 4:11, 6:5, 6:6, 13:8.

260 26.2



COLUMBIA JOURNAL OF GENDER AND LAW

intent was to perform a mitzvah, but now when their intent is not to
perform a mitzvah, the duty of chalitzah takes precedence over the duty of
levirate marriage.

Leviticus 18:16134 and 20:2 1" make it clear that in general one is forbidden from marrying
his brother's wife, even widowed or divorced. Levirate marriage was the exception to this
rule, provided that it was done for the right reasons, i.e., to fulfill a religious obligation and
not for personal or financial reasons. According to the commentators, if a man performs
levirate marriage with ulterior motives, he is considered to be simply indulging in a
forbidden union.' 6 When it became clear that people were no longer acting with only pure
motives, the rabbis ruled that performing chaliztah was the preferable option. According to
Ze'ev Falk, when this changed, "naturally the main effect concerned those already married,
who were now at liberty to remain monogamous. An internal factor encouraging bigamy
among Palestinian Jewry was thus neutralized while there remained the external opposition
to polygamy on the part of the administration."'

Aside from Tractate Yevamot and the Mishna in Bechorot, many other passages
throughout the Mishna also make mention of polygamy in various levels of detail. Chapter
10 in Ketubot, for instance, deals with laws relating to cases where the deceased leaves
two or more wives.' The numerous matter-of-fact references to polygamy throughout
the literature support the image of a world in which polygamy must have existed, at least
to some extent. There are, however, only a few specific examples that are recorded in the
Talmud. One, cited in both the Tosefta Ketubot 5:1 and Jerusalem Talmud Yevamot 4:12,
involves Rabbi Tarfon, a prominent Tanna who was active in the years 80-110 C.E. The
passage reports that during a year of drought Rabbi Tarfon, who was a priest, betrothed three
hundred women, so that they would, as wives of a priest, be able to eat from the Terumah
portion (the heave offering given to the priestly tribe) during this time of hardship. The
Jerusalem text, however, makes it clear that the marriages were only nominal. Rabbi Tarfon
makes another appearance in the canon in regard to polygamy, in a Tosefta in Yevamot 1:10;
having been asked about the status of the children of rival wives,'39 Rabbi Joshua replied:

134 "Do not uncover the nakedness of your brother's wife."

135 "If a man marries the wife of his brother, it is indecency."

136 Frisch, supra note 36, at 88.

137 FALK, JEWISH MATRIMONIAL LAW, supra note 92, at 9.

138 For more examples, see MISHNA, Gitlin 3:1, 8:7, Kiddushin, 2:6-7, Sotah 4:3, Sanhedrin 2:4.

139 A disagreement between the Houses of Shammai and Hillel recorded in the MISHNA, Yevainot 1:4.

26.2 261



COLUMBIA JOURNAL OF GENDER AND LAW

"Why do you put my head between two great mountains, between the
House of Shammai and the House of Hillel? They will destroy my head!
However I testify that the family of the House of Alubai from Beit
Sevaim and the family of the House of Kufai from Beit Mekoshish are the
descendants of rival wives. And high priests have come from them that
have presided over sacrifices at the temple." Rabbi Tarfon said, "I want a
daughter of a rival-wife to come before me so that I can marry her into the
priesthood."140

Jerusalem Talmud Yevamot 4:12 contains another story about polygyny, this one
involving thirteen brothers, twelve of whom died without leaving children, making their
wives eligible for levirate marriage. The widows of the deceased brothers came before
Rabbi Judah HaNasi, who told the surviving brother that he should enter into levirate
marriage with all of them, apparently unconcerned about the resulting polygamous
union.141 Interestingly, in Babylonian Talmud Ketubot 62a, when the same Rabbi Judah's
daughter-in-law became too old to have children after his son finally came back from his
studies, he was hesitant to tell his son to marry another woman polygamously, lest "it
would be said: The latter is his wife and the other his mistress." Perhaps this is an early
reflection of a trend that we will see again later in history, wherein polygamy is allowed
when there is a mitzvah (positive commandment) to do so (because technically the law
allows it and the rabbis' moral compunction was not enough to override a commandment),
despite the fact that it was otherwise frowned upon as somewhat immoral or something
to be socially ashamed of.142 This balancing system is in fact not uncommon in Talmudic
literature generally. Out of respect for the biblical commandments, the rabbis used much

140 In demonstration of the fact that the law is in accordance with the view of the House of Hillel.

141 See JERUSALEM TALMUD, Yevamot 4:12:

Four of the brothers: A story: there were thirteen brothers, and twelve died without children.
They came before Rabbi [Judah] requesting to be taken in levirate marriage. Rabbi said to
[the brother-in-law], "Go initiate levirate marriage." He said to him, "I can't." Each one
of the wives said, "I will pay maintenance for my month." The brother-in-law said, "Who
will pay maintenance for the intercalated month?" Rabbi said, "I will pay maintenance
for the intercalated month." And he prayed for them, and they left him. Three years later,
they came carrying thirty-six children. They came and stood themselves before Rabbi's
courtyard. [Some people] went up and told him, "There is a crowd of children below that
want to greet you." Rabbi looked out from the window and saw them. He said to them,
"What is your business?" They said to him, "We want you to pay the intercalated month."
And he paid the intercalated month.

142 BABYLONIAN TALMUD, Sukkah 27a:

262 26.2



26.2 COLUMBIA JOURNAL OF GENDER AND LAW 263

more discretion in mandating the non-fulfillment of biblical norms (here the practice of
polygamy) in a passive way rather than permitting active violations of commandments,
something that they felt that they could not do.143

Other specific instances of polygamy in the Babylonian Talmud include one involving
the major domo of King Agrippas who, in the process of ascertaining his obligations
regarding the holiday of Sukkot, mentions that he has two wives,'" and one involving Rabbi
Gamliel II of Yavneh (a leading Tanna who was active from 80-110 C.E.). Babylonian
Talmud Yevamot 15a tells us that Rabban Gamliel performed levirate marriage with one of
his brother's wives when his brother Abba died childless. In regard to other Jewish sources
from the time period, Josephus tells us that two of King Herod's sons, Archelaus and Herod
Antipas, had more than one marriage at a time.145

Another source of Jewish material discussing polygamy from the Tannaitic period is
the Aramaic Targum ("translation") of Ruth. 146 Chapter 4 of the Book of Ruth reads as

R Judah went and busied himself for his son's [marriage] into the household of Rabbi Yose
ben Zimrah. They agreed for him to go to the Great House [the Academy] for twelve years.
They promenaded her in front of him, he said to them, "Let them be six years." They
promenaded her in front of him, he said to them, "I will consummate [the marriage] and
then go." He felt shame before his father, [Rabbi Judah] said to him, "You have the mind
of your Creator. Originally it is written, you will bring them and you will plant them in the
mountain of your inheritance." Exodus 15:17 (referring to the Temple Mount), but in the
end it is written, "Make me a sanctuary, so that I may dwell among them. . . ." Exodus 25:8
(referring to the Tabernacle). He went and sat for twelve years. When he returned, his wife
had become barren. Rabbi said, "What will we do? If we divorce her, they will say, 'This
poor woman waited in vain.' If we marry [him to] another woman, they will say, 'This
one is his wife and this one is his prostitute."' He prayed for mercy on her behalf, and she
recovered.

143 See, e.g., BABYLONIAN TALMUD, Berakhot 19b-20a, where the Rabbis weigh meta-principles against
non-fulfillment of specific norms. "The value of human dignity is so great that it supersedes a negative
commandment of the Torah"; or, in the Jerusalem Talmud's version; "The dignity of the public (literally 'the
many') is so great that it supersedes a negative commandment of the Torah for one hour (i.e., temporarily)."
JERUSALEM TALMUD, Berakhot 3:1.

144 See BABYLONIAN TALMUD, Sukkah 27a.

145 JOSEPHUS, supra note 120.

146 There has been some scholarly debate over the dating of Targum ofRuth. Many believe it to be Talmudic.
See MIELZINER, JEWISH LAW 1901, supra note 94, at 29 n.2. Others consider it to be post-Talmudic, and others
claim it originated much earlier among the Sadducees or some other non-Pharisaic sect. See D.R.G. Beattie,
The Textual Tradition of Targum of Ruth, in THE ARAMAIC BIBLE: TARGUMS IN THEIR HISTORICAL CONTEXT 340
(D.R.G. Beattie & M.J. McNamara eds., 1992).



COLUMBIA JOURNAL OF GENDER AND LAW

follows:

Boaz continued [speaking to the redeemer, saying]: "When you acquire the
property from Naomi and from Ruth the Moabite, you must also acquire
the wife of the deceased, so as to perpetuate the name of the deceased upon
his estate." The redeemer replied, "Then I cannot redeem it for myself, lest
I impair my own estate. You take over my right of redemption, for I am
unable to exercise it."I 4 7

In the Biblical account, the only reason that the redeemer gives for not redeeming is
that doing so would "impair his own estate." A simple reading of these verses might imply
that this is so because by marrying Ruth he would be required to expend capital for property
that would go to Ruth's firstborn son, who would be legally regarded not as his own son,
but as the son of Ruth's deceased husband Machlon, as per the rules of levirate marriage.

The Targum, however, tells a slightly different story:

Boaz said: "On that day that you buy the field from the hand of Naomi and
from the hand of Ruth the Moabite, wife of the deceased, you are obliged
to redeem and required to act as her brother-in-law and to marry her in
order to raise up the name of the deceased upon his inheritance." The
redeemer said, "In such circumstances I am not able to redeem myself.
Because I have a wife I have no right to marry another in addition to her,
lest there be contention in my house and I destroy my inheritance. You,
redeem my inheritance for yourself, for you have no wife, for I am not
able to redeem." 48

Interestingly, the redeemer does not say that he is not allowed to marry a second wife,
just that it may result in contention in his house, reflecting the already established Biblical
view that polygamy, while not illegal, is at the very least inadvisable from a practical
household standpoint.

Other Midrashic sources, perhaps of later composition but representing much earlier
teachings, include Pesikta Rabbati (circa 845 C.E.). In this midrashic collection, the pious
Elkanah's polygamous behavior needs to be justified, and so the rabbis explain that it was

147 Ruth 4:5-6.

148 TARGUM, Ruth 4:5-6.

264 26.2



26.2 COLUMBIA JOURNAL OF GENDER AND LAW 265

because his wife was barren.'49 A parable given in Midrash Canticles Rabbah (which is
assumed to be very early) takes it for granted that if a man is marrying a second wife he
must have already divorced the first.'

The Tannaitic period of rabbinic Judaism corresponds to the time of early Christianity
and the writing of much of the New Testament, and so when exploring early rabbinic views
of marriage and polygamy one must also consider the views of early Christianity."' The
Gospels are relatively silent on the marriage front, although some scholars'52 have argued
that certain passages seem to set monogamy as the ideal. Matthew 19:9 for example, states:
"if a man divorces his wife for any cause other than unchastity, and marries another, he
commits adultery."' The lack of explicit condemnation is probably due to the fact that
on the ground it was taken for granted; indeed, at least for the original sectarian Jewish
Christian population, there is evidence that they were completely monogamous.15 4

One of the Church Fathers, however, Tertullian, took the above-quoted passage quite
far, in that he opposed not only what we can call regular or simultaneous polygamy, or even
what this verse seems to describe on its face, i.e., second marriages after divorce; he also
went so far as to proscribe a person's remarriage after the death of a spouse.'5"

Still, there are very few explicit references to polygyny in the New Testament, and it is
never banned in the text for the general population.' 6 It was not until the Council of Trent

149 Pesikta Rabbati 43, cited in S. Lowy, The Extent of Jewish Polygamy in Talmudic Times, 9 J. JEWISH

STUD. 115, 117 (1958); see also Yalkut Shimoni, 1 Samuel 1:2; Midrash Shinuel, 1 Samuel 1:2.

150 Canticles Rabbah 1:6, cited in Lowy, supra note 149, at 118.

151 See Frisch, supra note 36, at 93.

152 See DAVID DAUBE, THE NEW TESTAMENT AND RABBINIC JUDAISM 75 (1956).

153 SACRED WRITINGS-CHRISTIANITY: THE APOCRYPHA AND THE NEW TESTAMENT FROM THE REVISED ENGLISH

BIBLE 18 (Jaroslav Pelikan ed., 1992). If polygamy were permitted, why would taking a second wife be a
problem? See Lowy, supra note 149, at 132.

154 See H. J. Schoeps, Ehebewertung und Sexualmoral der spateren Judenchristen [Evaluating Marriage
and Sexual Mores ofLater Jewish Christians], 2 STUDIA THEOLOGICA 99, 99-101 (1948), quoted in Lowy, supra
note 149, at 132.

155 See Lowy, supra note 149, at 134.

156 While it can be argued that the New Testament prohibited polygamy in I Corinthians 7:2, which reads,
"let each man have his own wife and let each woman have her own husband," that reading is no more conclusive
than the "therefore shall a man leave" teaching in the Old Testament. See EPSTEIN, MARRIAGE LAWS, supra note



COLUMBIA JOURNAL OF GENDER AND LAW

in 1563 that the Church issued an unequivocal prohibition on the practice of polygamy.
Passages written in the Tannaitic period do, however, mandate that an elder, bishop, or
deacon, respectively, may each have only one wife.'" It is possible, if not likely, that in
forbidding their leaders and role models from a certain behavior, the authors of the New
Testament were demonstrating their views of the practice in general.' It seems that,
much like in the case of the Tannaim,'" for the early Christians there was a grudging legal
acceptance but a strong disinclination towards polygamy. Seeing as they were coming from
the same traditions and operating in the same locale of the Holy Land, if one group did not
directly influence the other, they must have at the very least been exposed to similar ideas
and societal values regarding issues of marriage and family.'60

Proceeding to the world of non-canonical Christian literature, Justin Martyr, one of the
Church fathers of the second century, was an important Christian apologist. His Dialogue
with Trypho was the first anti-Jewish polemic written in Greek,'6' and is an adaptation of
a debate between Justin and a Jewish philosopher.162 In Chapter 134, Justin writes that
Jewish sages in all the lands, even in his own day, permit marriage to four or five wives.
Justin condemns the rabbis who, he claims, permit their followers to practice polygyny
rather than obey God, and mistakenly cite to the Patriarchs as precedent.' 6 Elsewhere,
Justin reiterates that the purpose of the Patriarchs' polygamy was "not to commit adultery,

93, at 14. The Gospels of Matthew 19:9 and Mark 10:11 declare that "whosoever shall put away his wife
... and shall marry another commiteth adultery," but there is reason to believe that the word adultery here just
means sexual sin. Id. at 14-15.

157 See Titus 1:6; 1 Timothy 3:2; 2 Timothy 3:12.

158 Similar to the Damascus exegetical material. Note, though, that at least in the minds of the Tannaim, the
Bible was not doing so when it proscribed multiple wives for the king. In regard to the limitations contained
in Deuteronomy 17:17, TOSEFTA, Sanhedrin 4:5 states: "He shall not multiply for himself if the wives are like
Jezebel. But if the wives are like Abigail, multiplying wives is permitted. These are the words of Rabbi Judah
.... But a common person is permitted to do all of these things."

159 At least in a case where there was no good reason, such as bareness, levirate duty, or drought.

160 Indeed in the early centuries, the Christian teachings clearly assume that polygamy is contrary to
Christian morals. See, e.g., CORPUS JURIS CANONICI, described in EPSTEIN, THE JEWISH MARRIAGE CONTRACT,

supra note 103, at 15-16 n.49.

161 Church Fathers, in 4 ENCYCLOPAEDIA JUDAICA 719, 719 (2007).

162 Who, ironically, some scholars claim may have actually been the Tanna Rabbi Tarfon, the very same
Tanna who himself, when the need arose, married three hundred women. See generally J. D. GEREBOFF, RABBI
TARFON: THE TRADITION, THE MAN, AND EARLY JUDAISM (1979), cited in Frisch, supra note 36, at 101.

163 See Frisch, supra note 36, at 97.

266 26.2



COLUMBIA JOURNAL OF GENDER AND LAW

but that certain mysteries might thus be indicated by them."'6 As Falk notes, despite the
fact that Justin Martyr clearly wrote for polemical reasons, criticizing Judaism to elevate
Christianity, one can still infer from his work that the rabbis of his generation did not
discount polygamy, at least in principle.'6 1 On the other hand, one must be cautious when
using his writings as a historical source, since although he claims to be reporting on Jewish
sages in "all lands," it is possible that he is in fact only describing some anomaly with
which he was personally familiar.' 66

If polygamy was not de facto common in Tannaitic times, it was certainly accepted
rabbinically dejure. From the Talmudic legal contexts in which it was discussed, polygamous
unions per se were most likely to arise in a case where there was a biblical commandment
or, as in the case of Rabbi Tarfon in the Jerusalem Talmud, a moral imperative mitigating
the discomfort that the rabbis felt towards the practice.

The split between Jewish and Christian views of polygamy is probably rooted in
their differing views on marriage as an institution. In Christian minds, at least at the time,
marriage was merely tolerated, barely good; Paul famously proclaimed:

it is good for a man not to touch a woman. Nevertheless, to avoid
fornication, let every man have his own wife, and let every woman have
her own husband. . . . I say this by way of concession, not of command
... for it is better to marry than to bum.167

In rabbinic thought, however, marriage was considered to be "very good."'16 According
to one fragment found in the Cairo Geniza, which has been referred to as the "sermon in
praise of a wife," 6

1 there are in fact twelve good measures in the world, and any man who

164 SUSANNA DRAKE, SLANDERING THE JEW: SEXUALITY AND DIFFERENCE IN EARLY CHRISTIAN TEXTs 34 (2013)

(quoting Justin Matryr, Dialogue with Trypho 141:4).

165 FALK, JEWISH MATRIMONIAL LAW, supra note 92, at 6, quoted in Frisch, supra note 36, at 98.

166 Frisch, supra note 36, at 98.

167 1 Corinthians 7:1-9, quoted in Gafni, supra note 121, at 17; see also TERTULLIAN, To His WIFE (207
A.D.), reprinted in 4 ANTI-NICENE FATHERS 86 (Philip Schaff ed., 1885), available at http://www.ccel.org/ccel/
schaff/anf04.pdf; ST. AUGUSTINE, ON MARRIAGE AND CONCUPISCENCE, BOOK 1 (419 C.E.), reprinted in 5 NICENE
AND POST-NICENE FATHERS: SERIES 1 764 (Philip Schaffed., 1887), available at http://www.ccel.org/ccellschaffl
npnfl05.pdf.

168 MIDRASH, Genesis Rabbah 9:7.

169 S. D. Goitein, Preface to JAcoB MANN, THE JEWS IN EGYPT AND IN PALESTINE UNDER THE FATMID CALIPHS

26.2 267



COLUMBIA JOURNAL OF GENDER AND LAw

does not have a wife in his house who is good in her deeds is prevented from enjoying all
of them. These good measures are: good, happiness, blessing, peace, help, atonement, a
(protective) wall, Torah, life, satisfaction, wealth, and a crown. Based on the discussion of
marriage in Babylonian Talmud Yevamot 61b-64a, the anonymous preacher's list of goods
might imply in simple mathematical terms that more wives would just equal more goods.

V. The Amoraic Period

The composition of the Mishna by Rabbi Judah HaNasi in the beginning of the third
century, and its dissemination and acceptance in the Jewish legal academies both in Israel
and elsewhere, led to a clear break in the way scholars worked to pass on the tradition.7 0 The
generations that followed the Tannaim were called Amoraim ("those who recount the law")
because they worked to interpret and deliver the authoritative Mishnayot. Memorization
and constant recitation were the cultural ideal."' Polygamy continued to be legal according
to Jewish law during this period, which lasted until the codification of the Babylonian
Talmud around 500 C.E. From what we know, however, it continued to be rare in practice,
probably even more so than before.'72 Talmudic debate and legislation regarding multiple
wives is frequent, but seems to have been mostly academic."' While the two Talmuds
contain a great deal of biographical information about many sages over the centuries, there
is not a single undisputed reference to any of the Amoraim actually having more than one
wife.

While Jews had been living outside of Israel in Babylonia since the Destruction of the
Temple in 70 C.E., the traditions until this point had been quite fluid and connected, with
Israel as the accepted source of authority. In the Amoraic period, as demonstrated by the
emergence of the two Talmuds, two distinct communities began to take shape. While the
Amoraic period is said to have lasted until 500 C.E., in truth the Amoraim in the land of
Israel were only active until approximately 370 C.E. The earlier close of the Jerusalem

(1970), quoted in SATLOW, JEWISH MARRIAGE IN ANTIQUITY, supra note 127, at 1.

170 See Anorairn, in 2 ENCYCLOPAEDIA JUDAICA 89 (2007).

171 Id.

172 The Talmudic term for a spouse, zivug, literally means "pairing," further postulating monogamy. Lowy,
supra note 149, at 130; see, e.g., BABYLONIAN TALMUD, Sotah 2a; Gittin 90b; Sanhedrin 22a.

173 The debates tend to center around precise legal theoretical questions in regard to formation and
dissolution of marriage, but ignore such mundane issues as how the laws of family purity would be affected, a
topic which, if polygamy was actually happening, would definitely have needed to be addressed. See generally
BABYLONIAN TALMUD, evanlol.

268 26.2



COLUMBIA JOURNAL OF GENDER AND LAW

Talmud was probably due to the political reality in Israel: in 351 the Roman commander
Ursicinus wreaked vengeance on the Jews of Tiberias, Sepphoris, and Lydda, the seats of
the three academies, because of their revolts against the army.17 4

There is much discussion in rabbinic literature about how to account for some of
the differences between the Babylonian and Jerusalem Talmuds. Some assume that they
represent the difference between two contemporary but different traditions, perhaps based
on geographical and political influence. The Jews who remained in Israel during this period
were under Roman rule, and were thus exposed to Roman views (and subject to Roman
laws) about monogamy. The Jews in the Babylonian exile, however, were in close proximity
to the polygamous Zoroastrian religious culture of Persia. Others, however, downplay
these differences, noting that if you align the different Tannaitic and Amoraic layers of the
two Talmuds, the corresponding strata are remarkably similar. They thus assume that what
the two Talmuds really preserve is the difference between two stages of the development
of a single shared tradition.' Regardless, though, of whether the differences were due
to time and/or place, to some extent the material that we have preserved from the Jewish
communities of Israel and Babylonia must be examined separately, with Israel coming
first.' 6

In 212 C.E., all Jews living in the Roman Empire became Roman citizens, and were
therefore subject to severe penalties for the practice of polygamy. In 285 C.E. Diocletian
specifically extended the prohibition against polygamy to all the inhabitants of the Roman
Empire, and in 324 C.E. Constantine the Great became ruler and Christianity became the
official religion of the Roman Empire."'

On December 30, 393, Emperor Theodosius (with Arcadius and Honorius) prohibited
Jews from practicing polygyny, stating: "None of the Jews shall keep his custom (morem)
in marriage unions, neither shall he contract nuptials according to his law, nor enter into
several matrimonies at the same time.""' The imperial legislation was apparently not

174 See Talmud, Jerusalem, in 19 ENCYCLOPAEDIA JUDAICA 483, 483-87 (2007).

175 Id.

176 FALK, JEWISH MATRIMONIAL LAW, supra note 92, at 7. The truth is, though, that it is not entirely convincing
to say that Roman legislation deterred polygamy; uncle-niece marriages were considered incest by the Romans
but permissible according to the rabbis. There must have been something else, i.e., some more universal
underlying cultural aversion. See SALO BARON, A SOCIAL AND RELIGIOUs HISTORY OF THE JEWS 2:26 (2d ed. 1983).

177 See Frisch, supra note 36, at 101.

178 SATLOW, JEWISH MARRIAGE IN ANTIQUITY, supra note 127, at 189. It should be noted, though, that the

26.2 269



COLUMBIA JOURNAL OF GENDER AND LAw

entirely successful, however, even outside of Israel, because in 537 Justinian issued a novel
ruling that granted an exemption from laws against polygyny to the Jews of Tyre; in 535 he
had prohibited 'abominable marriages,' and two years later, upon tearful supplication from
the Jews, he somewhat relaxed his position.7 9

While some scholars, such as Lowy,s0 contend that Roman legislation (such as the
aforementioned laws) did not serve as a deterrent for Jewish polygamy,"' most assume that
it played a fairly large role. As Salo Baron puts it, "[n]o matter how little Jews were inclined
to obey Roman legislation when it differed from their own, public violation of imperial
criminal law throughout a lifetime, open to denunciation from any quarter, necessarily
became unusual." 82

Others point out that the law bears on all those marriage customs that were peculiar
to Jewish law, such as the degrees of permitted kinship, and legal age for marriage, in
addition to any mention of polygamy. In fact, its formulation even permitted a more general
interpretation; one could read it as condemning even the Jewish marriage ceremony itself.'83

They observe that clearly Imperial authorities never effectively implemented the law,
because it was precisely this halakhic corpus that remained a constant throughout Jewish
history. In fact, we have a textual witness to the already monogamous character of the
Jewish family in the first half of the fifth century on the one hand, and to the enforcement
(or lack thereof) of the Imperial legislation against polygamy on the other. In Theodoret's
Commentary to Paul's First Epistle to Timotheus, we find the following: "Formerly, both
Greeks and Jews used to contract simultaneously marriages with two, three, or even more
wives. Even now some copulate with concubines and prostitutes, although the Imperial
laws forbid to marry two women at the same time."'"

decree only covered legal wives, not concubines. See FALK, JEWISH MATRIMONIAL LAW, supra note 92, at 20 n. 1.

179 Justinian included Theodosius' edict in his Codex in order to stress the ban again, and the Basilica,
compiled by the Byzantine Emperor Leo the Philosopher as a digest of Justinian's laws at the beginning of the
tenth century, also contains similar language. See Codex Justinianus 1:97; see also AMNON LINDER, THE JEWS IN

ROMAN IMPERIAL LEGISLATION 192-93 (1987). Leo the Philosopher (886-912) would try again to ban polygamy
later, also with only limited success. See JOSHUA STARR, THE JEWS IN THE BYZANTINE EMPIRE 144 (1939).

180 Lowy, supra note 149, at 116, quoted in Frisch, supra note 36, at 106.

181 See MIELZINER, JEWISH LAW 1901, supra note 94.

182 BARON, supra note 176, at 2:226, in Frisch, supra note 36, at 102.

183 LINDER, supra note 179, at 192.

I84 See R C. Hill, Theodoret of Cyrus, Commentary on the Letters ofSt Paul, quoted in LINDER, supra note

270 26.2



COLUMBIA JOURNAL OF GENDER AND LAW

A. The Jerusalem Tradition

Discussing the various cases of the Mishna, the Jerusalem Talmud contains some legal
rules about polygamy,' but the most important traditions about polygamy in the land
of Israel during this time were actually preserved in the Babylonian Talmud. During the
Amoraic period there was constant contact as well as correspondence between the centers
of Jewish learning in Israel and in Babylonia, and so both Talmuds contain views from
Amoraim who lived far away. In fact, for the most part the two rabbinic centers are not
portrayed as being equal in authority or in prestige; in general, the Babylonian scholars
considered themselves subordinate to the Israeli sages, who had a more direct connection
to the tradition. Thus we find the fourth generation Babylonian Amoraic Sage Abaye, in
Babylonian Talmud Pesachim 51a, remarking: "since we are subordinate to them, we do
as they do."'"' Therefore, it is not surprising that the Israeli traditions are quoted frequently
and respectfully.

Babylonian Talmud Yevamot 65a quotes Ray Ammi, an Amora from Israel who was
active from 290-320 C.E. He holds that if a husband whose wife has not borne him children
wants to take another wife:

He must in this case pay her [his present wife] the amount of her ketubah.
For I hold that whoever marries a wife in addition to his [present] wife
must pay [the present wife] the amount of her ketubah (the price stipulated
in the marriage agreement for the husband to pay in the event of the
termination of their marriage, either by his death or by their divorce).'

Falk maintains that Ray Ammi's ruling "expresses a fundamental change of outlook
... a new precept, based on his own personal conclusions ... [his ruling] for the first time,

179, at 192.

185 For examples of polygamy discussed in a legal setting, see JERUSALEM TALMUD, Yevanot 1:1, 1:6, 2:1,
3:3, 3:5, 3:10, 4:1, and 5:3, and Kiddushin 2:6.

186 Amoraim, in 2 ENCYCLOPAEDIA JUDAICA 89 (2007). The Babylonian Talmud also describes Babylonian
judges as being the "agents" of the scholars of the Land of Israel who are only empowered to adjudicate certain
types of cases that do not require expert, ordained judges only found in the Land. See BABYLONIAN TALMUD,
Bava Kamma 84b; see also BABYLONIAN TALMUD, Sanhedrin 14a. The Shulchan Aruch (Hoshen Mishpat 1)
applies the same agency rule to Jewish law courts nowadays, noting that only scholars ordained in the Land can
really judge, and that judges today are simply fulfilling the historical agency mandate.

187 And, the implication is, divorce her.

26.2 271



COLUMBIA JOURNAL OF GENDER AND LAW

reflects a belief in monogamy on principle, as expressed by a rabbinical teacher, without
any support from the law or from tradition."' 8

Falk claims that this ruling must have been "inspired by beliefs and customs
common in the Roman world of that time, which were also propagated by the provincial
administration."'"8 He notes that the Mishna had already laid down a number of cases in
which the court obliged the husband to grant his wife a divorce and pay her ketubah. The
common denominator in those cases is that relations between the couple have become
strained, "either because the husband treats his wife in an oppressive manner, or as the
result of a grave infirmity on his part."' Falk therefore deduces that, for Ray Ammi at
least, and probably reflecting the beliefs and customs common in the Roman world, bigamy
was an injustice. Ray Ammi's statement is expressed without any support from a law or
tradition; it is simply a sentiment.191 It is particularly poignant when contrasted with the
very next line in the Talmud, a quote from the Babylonian Amora Rava:19 2 "Rava said: A
man may marry wives in addition to his first wife, provided only that he possess the means
to maintain them." 93

Outside of a legal context, the Babylonian Talmud records that both Rabbi Ammi and
Rabbi Assi (both of whom were sages who lived in Israel and were active between 290-

188 FALK, JEWISH MATRIMONIAL LAW, supra note 92, at 8.

189 Id.

190 Id.

191 Id. But see Lowy, supra note 149, at 120-23, who claims that Rabbi Ammi's statement has been grossly
misunderstood when taken out of its original context, i.e., as part two of a three part statement regarding when a
wife is entitled to a ketubah payment. All three are cases where the husband wants to stay married after ten years
of childlessness. In the first and third cases (husband wants a divorce due to barrenness, wife claims he is the
impotent one; husband claims there was a miscarriage to avoid divorce due to barrenness and wife disagrees)
the wife is believed and can get remarried, but is not entitled to a ketubah, since she is not commanded to have
children and therefore could have stayed and kept trying. In the middle case, where he takes a second wife,
since the husband is no longer depending on her to fulfill his obligation, she is entitled to the payment. The
innovation here has nothing to do with polygamy then, but rather with the payment of the ketubah.

192 See ADIN STEINSALTZ, THE TALMUD, THE STEINSALTZ EDITION: A REFERENCE GUIDE 34-36 (1989).

193 BABYLONIAN TALMUD, Yevainot 65a. Interestingly, the first part of the statement is written in Hebrew,
and the second part in Aramaic. See Gafni, supra note 121, at 23 (believing that the qualification "so long as
... " was an additional gloss added by a later hand). But see FALK, JEWISH MATRIMONIAL LAW, supra note 92,
at 7 (believing it more likely that Rava himself, who spoke Aramaic, added the gloss to the preexisting rule
regarding polygyny). Regardless, the statement preserved and attributed to Rava reflects the view that if he can
afford it, a man may marry many wives. See Frisch, supra note 36, at 107-08.

272 26.2



COLUMBIA JOURNAL OF GENDER AND LAw

320 C.E.) were sitting before Rabbi Isaac, who told them a parable about a man who had
two wives, one young and one old: "The young one used to pluck out his white hair, and the
old one used to pluck out his black hair. Finally, he was bald on both sides."' 94

Again, despite the fact that polygamy was still discussed and approved of at least
in legislative contexts in Israel during the Amoraic period, comments like these reflect
a progressively more negative attitude toward polygamy and a moral leaning towards
monogamy on the part of the Talmudic rabbis.'95 In the Babylonian Talmud's Avot D'Rabbi
Nathan (one of the minor tractates), Rabbi Yehuda ben Beteira, an Amora from Israel, also
comments negatively on polygamy:

Rabbi Yehuda ben Beteira says, "Job thought to himself, for what would
be my portion from God above, and my heritage from the Almighty on
high? 96 If Adam was intended to have ten wives, they would have been
given to him. But he was intended to marry only one wife. So too my wife
is enough for me. My portion is enough."'

And in the Midrash Genesis Rabbah, redacted in Israel,198 the rabbis describe the
bigamy of Lamech in quite an unflattering manner. It says that Lamech, like other men of
the antediluvian period, took two wives so that one could be used for procreation and the
other for sexual pleasure. The Midrash says that Addah (the wife for procreation) was "like
a widow," and Zilla "like a harlot."'"

Regardless of the law, it was difficult for men in Israel in those days to marry more
than one wife at a time, due to a combination of factors, including: difficult economic
conditions, Roman influence over Jewish communities, and, in some places, contracts
actually stipulating monogamy.

194 BABYLONIAN TALMUD, Bava Kanrnna 60b (translation by author).

195 See Frisch, supra note 36, at 104-06.

196 Job 31:2.

197 AVOT D'RABBI NATHAN Version B, Ch. 2, 9 (Solomon Schechter ed., 1887).

198 The Midrashic text was probably redacted sometime in the fifth century, although the traditions that
it quotes are related in the names of much earlier Israeli Amoraim. See Genesis Rabbah, in 7 ENCYCLOPAEDIA

JUDAICA 448, 448-49 (2007). Genesis Rabbah also reads like the Jerusalem Talmud, in that it is written in
mostly Mishnaic Hebrew with some Galilean Aramaic.

199 Genesis Rabbah 23:2; see also JERUSALEM TALMUD, Yevainot 7d.

26.2 273



COLUMBIA JOURNAL OF GENDER AND LAW

B. The Babylonian Tradition

The Jewish community in Babylonia presents an interesting foil. Unlike in Roman
society where monogamy was the norm, in Persia, polygamy, "continued down to the
Sassanian period, at least among the aristocracy that could afford a plurality of wives." 200
The statement of Rava quoted above, to the effect that a man may marry wives (no number
is given) in addition to his [first] wife, so long as he has the means to maintain them, seems
to typify this different attitude.2 o'

Some assume that Rava and Ray Ammi represent two different traditions, one in and
one out of Israel.202 Lowy, however, rejects the idea that Rava is disagreeing with Ray
Ammi. He points out that while Ray Ammi was head of the Academy at Tiberias in Israel,
he was also greatly influential in Babylonia. 203 According to Lowy:

It is impossible to presume that Rava contradicts Ray Ammi. While the
Talmud opposes them to each other for the purpose of analyzing the
sugya (discussion), it is almost certain that their original sayings were not
meant in this sense, and that only for the final literary reflection were their
sayings made into a controversy. Not only do we never find elsewhere
in the Talmud a controversy between them, but Rava always accepts the
authority of Ray Ammi. 2

0' Rava's words, "a man may marry as many
wives simultaneously as he can afford to maintain" are merely his own

200 Gafni, supra note 121, at 21 (quoting Mansour Shaki, The Sassanian Matrimonial Relations, in ARCHIV
ORIENTALNI 39, at 338 (1971)).

201 Note though that to assume that this is typical of the Babylonia/Israel split may be an oversimplification.
There may in fact be differences of opinion regarding this matter even within the Babylonian Talmud itself.
As mentioned above, the Mishna in Bekhorot 1:7 says that chalitza is preferable to levirate marriage, despite
the fact that in Babylonian Talmud Yevamot 39b the Tanna Abba Saul holds that intent is relevant, as discussed
above, and despite the fact that Babylonian Amoraim disagreed and said one should always do levirate marriage,
since it is a Biblical commandment.

202 See RUTH LAMDAN, A SEPARATE PEOPLE: JEWISH WOMEN IN PALESTINE, SYRIA, AND EGYPT IN THE SIXTEENTH

CENTURY 139, 139 n.3 (2000).

203 He also notes that while many of Ray Ammi's statements are found in identical form in both the
Babylonian and Jerusalem Talmuds, there is no Jerusalem Talmud parallel to his statement in Babylonian
Talmud Yevamot 65a, a parallel that would be expected if this were an exclusive Israel tradition. Frisch, supra
note 36, at 109.

204 Here, Lowy, supra note 149, cites, for example, BABYLONIAN TALMUD, Gittin 63b.

274 26.2



26.2 COLUMBIA JOURNAL OF GENDER AND LAW 275

way of repeating the ancient tradition about this legal freedom.2 05

It is also possible that Rava's words contain the wry secret of polygamy in Talmudic
times; a legally acceptable but, practically speaking, near-impossible option. The insertion
of the difficult law that the husband must secure for each wife both adequate maintenance 206

and full conjugal rights tended to make polygamy even more obscure than it had been in
the past, while keeping it legal on the books.2 07

Indeed, while polygamy remained legal in the legal-theoretical sense, in the Amoraic
period even in Babylonia it was becoming clear that people did not like the practice, and
that the way people really felt about polygamy already touched upon the legal system
in practical ways. The law, for instance, is that a judge or witness who is instrumental
in allowing a woman to remarry may not thereafter marry that woman himself, lest we
have reason to suspect that his original testimony or opinion was tainted by some level of
personal interest. But if at the time of the trial the judge or witness was married, and then
his wife died at some later point, he can marry the woman, because the idea of polygamy,
and therefore the idea of scheming towards polygamy, was viewed as farfetched. 208

Elsewhere in the Babylonian Talmud we come across the idea that the High Priest,
at least, should only have one wife at any given time.2 09 In regard to everybody else, the
Mishna in Yevamot 4:11 states that if a man has four married brothers that have all died, he
may perform levirate marriage with all four widows. An anonymous opinion in the ensuing
Talmudic discussion adds on a disclaimer, however, stating that this is so provided that
he can in fact support them. 2 10 The source then states that regardless of financial means, a

205 Lowy, supra note 149, at 124, quoted in Frisch, supra note 36, at 113. Another possibility is that there
were a few, like Rava, who supported the idea. See also BABYLONIAN TALMUD, Kiddushin 7a, in which Rava also
seems to very matter-of-factly support the idea of polygamous marriage; BABYLONIAN TALMUD, Kiddushin 80b,
where he implicitly approves it; and BABYLONIAN TALMUD, Yevamot 63a-b, where he advises one with a bad
wife who has a large ketubah to marry a rival.

206 As we will see later, this came to mean even separate quarters.

207 See DAVID WERNER AMRAM, THE JEWISH LAW OF DIVORCE 76 n.3 (1897); MIELZINER, JEWISH LAW 1884,
supra note 80, quoted in George J. Webber, The Recognition ofPolygamous Marriage in Mosaic Law, 49 LAW
Q. REV. 19-20 (1933).

208 See EPSTEIN, THE JEWISH MARRIAGE CONTRACT, supra note 103, at 20 (quoting BABYLONIAN TALMUD,
Yevamot 25b-26a).

209 See BABYLONIAN TALMUD, Yoma 13a.

210 This is consistent with Rava's statement cited above. See supra note 193 and accompanying text.



COLUMBIA JOURNAL OF GENDER AND LAw

man should not take more than four wives so that each wife can receive at least one marital
visit a month. It is interesting to note that earlier in that same discussion, the Talmud states
that a young man should not marry an old woman, or vice versa. The implication here is
that in order to avoid discord in the home, a man should marry someone who is close to
him in age. The whole discussion then is framed upon ensuring the quality of the marital
relationship, with quantity of marital partners as only one factor to be considered.21 1

Babylonian Talmud Pesachim 113a records a conversation between Ray (an Amora
from Babylonia, active from 220-250 C.E.2 12) and Ray Assi (from Israel, active from 290-
320 C.E.2 13) wherein one of them gave the other some practical advice: Ray said, "Do not
marry two women. But if you do marry two, then marry a third."214

Perhaps Ray was speaking from experience; the only actual reference to any Talmudic
sage being a polygamist comes from a cryptic passage in Babylonian Talmud Tractate
Yoma, which is again repeated in Babylonian Talmud Yevamot 37b, and it also involves
him.

Babylonian Talmud Yoma 18b contains the following story about the two great
Babylonian Amoraim, Ray and Ray Nachman (another Babylonian Amora, active from
250-290 C.E.) 2 15 : "Whenever Ray came to Ardashir he would announce: 'Who will be [my
wife] for a day?"' 216

Since Ray and Ray Nachman were both married,'21 taking additional wives would make
them polygamists. However, many commentators and modem scholars have focused on this
passage, offering several other explanations for Ray and Ray Nachman's unusual practice.
The mere fact that scholars resist taking it literally testifies to the general assumption that
even in Babylonia, during this time, such things were just not done. Moreover, these were

211 See glosses of Rema to Shulchan Aruch, Even HaEzer 1, where Rema hammers home this point.

212 See STEINSALTZ, supra note 192, at 32.

213 Id.

214 Rashi there explains that this is because two wives may conspire against the husband, but if there are
three, then the third will check the first two and provide insurance for her husband.

215 STEINSALTZ, supra note 192, at 33.

216 BABYLONIAN TALMUD, YOfna l8b.

217 See BABYLONIAN TALMUD, Yevalnot 63a; Berachot 51 b.

276 26.2



26.2 COLUMBIA JOURNAL OF GENDER AND LAW 277

two of the absolute greatest sages of their generation; even if polygamy happened it is
strange to think that such saintly people would engage in such a seemingly strange form of
it. Aside from the general stories told about both of them and their piousness, 218 Rav's court
is actually famous for having flogged people for contracting marriages without previous
arrangements.219

Some scholars suggest that they only took their "wives for a day" to escape the
Persian royal "gift" of a concubine when they visited a city, since some Persian princes
are known to have taken the refusal of their "gift" as a serious affront. 22 0 In order to avoid
complications, they went so far as to marry a local "wife for a day," despite the fact that
they did not generally approve of the practice of bigamy.22' Others suggest that when Ray
and Ray Nachman had trouble with their primary wives, they would take a secondary "wife
for a day" to threaten them.22 2 Still others propose that they did this when their primary
wives had their menstrual periods, 223 or that they were really just "issuing proclamations
stressing the importance of arranged marriages. "224 Lowy points out that both of these cities
were well within the limits of the Jewish settlement, and so it was not likely that Ray and
Ray Nachman considered them "hiding places" where they could behave differently than
they otherwise would. 2 25

The other possibility is that these stories are true. The Talmud itselfdid not have a problem
with the retelling on its face, and in keeping with the notion of influence by surrounding
culture, marriage for a definite period of time was definitely part of the widespread practice

218 Regarding Rava, see, e.g., BABYLONIAN TALMUD, Taanit 21b; regarding Ray Nachman, see BABYLONIAN
TALMUD, Megillah 28b.

219 BABYLONIAN TALMUD, Yevanot 52a; Kiddushin 12b.

220 See Frisch, supra note 36, at 114.

221 See R. Margoliot & S. Krauss, Maan Hav 'ya L'Yona [Who Will be My Wife?], SINAI, XI 176-79, quoted
in Frisch, supra note 36, at 114.

222 See Gafni, supra note 121, at 24; Lowy, supra note 149, at 126-29. The Talmud in Babylonian Talmud
Yevamot 63a and Berachot 51 b makes it clear that they both had difficult wives. Lowy writes: "Not only do their
personalities make the contraction of such temporary marriages impossible to credit in them, but the sources
themselves indicate that their so-called advertisement for a temporary mate never resulted in a consummated
marriage" Lowy, supra note 149, at 127-28, cited in Frisch, supra note 36, at 115 n.360.

223 See Gafni, supra note 121, at 24.

224 Id.

225 Lowy, supra note 149, at 128.



COLUMBIA JOURNAL OF GENDER AND LAW

in Sassanian Persia.226 In both Yoma and Yevamot, the story is immediately compared and
contrasted with the ruling of Rabbi Eliezer ben Yaakov (a Tanna who was active from
80-110 C.E.):

But surely it has been taught [in a baraisa]: 2 27 Rabbi Eliezer ben Yaakov
says: "A man should not marry a woman in one county and then go and
marry a woman in another country, lest [the children from the two marriages
one day] meet each other and [unknowingly] a brother will marry his sister
(or a father marry his daughter) [and thus the brother and his sister (or the
father and his daughter) would produce illegitimate children] ... ?" They
say: The Rabbis were famous. 228

The anonymous Amora thus distinguishes between Rabbi Eliezer Ben Yaakov's ruling,
which would normally prohibit a man from marrying two women in different countries,
and the cases of Ray and Ray Nachman, who were famous enough that their offspring
would be well known as their children.

The key to the Talmudic passage however, seems to lie in the continuation of the
Talmudic discourse. After the above-cited interjection, the Talmud then goes on to ask how
it was possible for these women to become engaged and married on the same day, when
Rava had said that an engaged woman must wait seven clean days in her menstrual cycle
before she can consummate the marriage? The Talmud answers and gives two possibilities:

The Rabbis would send their agents in order to inform [the prospective
brides seven days in advance]. And if you prefer, I could say that the private
meetings of three Rabbis were only for the purpose of being closeted up
with [the women]. As a master said, "One who has bread in his basket is
not like one who does not have bread in his basket." 2 29

The answer is right there in the text: the Rabbis did this to curb their own desires, but
never to really marry these women long term. In the Yevamot version of this piece, the unit
ends with one more statement attributed to Rabbi Eliezer ben Jacob which really seals this

226 Id. at 24-25.

227 BABYLONIAN TALMUD, Yevamot 37b.

228 BABYLONIAN TALMUD, Yoma 18b.

229 Id.

278 26.2



COLUMBIA JOURNAL OF GENDER AND LAw

interpretation: "A Tanna [taught]: Rabbi Eliezer ben Jacob says, 'A man shall not marry his
wife with the knowledge that he will divorce her, as it is said 'Do not devise evil against
your neighbor, for he resides in security with you."' 23 0

The Rabbis then must never have intended these to be real marriages.

The above-mentioned discussion, with its various questions, quotations, and concerns,
expresses the general feeling toward polygamy, concubinage, 231 and nominal polygamy
(i.e., towards having second wives at all, of any status or for any period of time) at this
point in history. Simply put, it is one of an uncomfortable legal acceptance, but a growing
social concern. 23 2

Monogamy, on the other hand, seems to be generally and genuinely praised. Sayings
phrased in the singular form about the goodness of a wife abound throughout the Talmud,
and, while indirect, do paint the picture of a more companionate and singular union. In
regard to his wife, a proper husband "loves her as himself, but honors her more than
himself."233 We are told that in a home where the wife is the daughter of a God fearing man,
the husband has God for a father-in-law. The Talmud asks: who is rich? He whose wife's
actions are comely. 234 Who is happy? He whose wife is modest and gentle.235 We are told
that when a man's wife dies, it is as if he has seen the destruction of the Temple; his world
is darkened, his step is slow and his mind is heavy. She dies in him and he in her.2 36 We

230 Proverbs 3:29..

231 Genesis Rabbah 53:5; Leviticus Rabbah 1:13. Both recount the same parable, about a king who has
both a wife and a concubine. The king goes openly to his wife, but when he goes to the concubine, he does it
in a secretive fashion, "as if it were a shameful and illegal act." While concubinage is discussed on at least the
academic level in both Talmuds, see, e.g., BABYLONIAN TALMUD, Sanhedrin 21a; JERUSALEM TALMUD, Ketubot
5:2, there is no hard evidence that it was actually practiced, and parables like the Midrashic one above most
likely reflect the negative attitude towards the practice that was pervasive in that period.

232 Note, however, that other readings are possible. For instance, Rabbi Eliezer ben Jacob's calling into
question of certain types of polygamy, i.e., long distance relationships, might be read to implicitly grant
legitimacy to other types.

233 BABYLONIAN TALMUD, Sanhedrin 76b, quoted in ISRAEL ABRAMS, JEWISH LIFE IN THE MIDDLE AGES
114(1993).

234 BABYLONIAN TALMUD, Shabbat 25.

235 AVOT D'RABBI NATHAN 7 (Solomon Schechter ed., 1887).

236 BABYLONIAN TALMUD, Sanhedrin 22a.

26.2 279



COLUMBIA JOURNAL OF GENDER AND LAW

are told that marriages are made in heaven,237 that a man's happiness is in all of his wife's
creations, 238 and that God's presence dwells in a pure and loving home. 239 Indeed, the word
often used in marital contexts to describe a couple is zivug ("a pair"), which only makes
sense if it is describing a monogamous marital home. 240

If it is true then that most of the Talmudic and Midrashic material suggests a clear
preference for monogamy, and if, as the evidence suggests, most Jews were in fact living
monogamously, why do the Talmuds contain so much legal material about polygamy?

Baron suggests that the sages insisted on the continued validity of the positive principle,
however unrealistic, in conscious opposition to Greco-Roman ideas of monogamy and
in an effort to maintain an ancestral heritage against the influx of foreign ideas and
institutions. 24

1 Lowy agrees in part, recognizing that if the Rabbis favored monogamy and
yet did not explicitly advocate it, and if, moreover, they tried to keep it alive, at least
academically, it must have been a conscious effort. He contends, however, that the sources
do not really indicate that much of a difference in attitude towards polygamy between the
Jewish communities in Palestine and in Babylonia. 24 2 He therefore thinks that the stubborn
clinging to legalized polygamy was not so much a reaction to Greco-Roman influence,
which was only a problem in Israel, 243 as it was a response to Jewish sectarians. Whether it
was the Zadokite or Damascus Document with its focus on Genesis 1:27 ("[I]n the image of
God he created them, male and female he created them." 24 4) and 7:9 ("[M]ale And female,
came to Noah and entered the ark, as God had commanded Noah." 245 ), or the Samaritans'
and Karaites' focus on Leviticus 18:18 ("Do not take your wife's sister as a rival wife and

237 BABYLONIAN TALMUD, Shabbat 22a-b.

238 BABYLONIAN TALMUD, Bava Metzia 59a.

239 BABYLONIAN TALMUD, Sotah 17a.

240 See BABYLONIAN TALMUD, Sotah 2a; Gittin 90b; Sanhedrin 22a, cited in Lowy, supra note 149, at 117
n.27.

241 BARON,supra note 176, at 2:227-28.

242 Lowy, supra note 149, at 115.

243 As we noted, it also should have engendered a similar approach in regard to other laws as well.

244 Genesis 1:27.

245 Genesis 7:9; see Lowy, supra note 149, at 132 (quoting Louis GINSBERG, EINE UNBEKANTE JUDISCHE

SEKTE, MGWJ, LV, at 689-91 (1911)).

280 26.2



COLUMBIA JOURNAL OF GENDER AND LAW

have sexual relations with her while your wife is living." 24 6) the heretical influence might
have been the real polygamic spur in the Rabbinic side.

It is safe to assume that Christian monogamy is based on the same inheritance of
heterodox exegesis. According to Lowy, this might account for Jesus' silence on the issue
of polygamy; he didn't feel the need to explicitly advocate for monogamy because that is
what was taken for granted in his sect. He did, however, say that, "Whoever shall put away
his wife, and marry another, commits adultery,"247 and the implications are quite clear: if
polygamy were permitted, the marriage of a second wife after divorce would certainly
not be considered adultery. As it were, the Jewish Christians at least, were known to be
completely monogamous. 248 Also in common with the other sects, Jesus himself in Matthew
19:4-5 ("And he answered and said, 'Have you not read that He who created them from the
beginning made them male and female, and said, for this reason a man shall leave his father
and mother and be joined to his wife and the two shall become one flesh."') and Mark 10:6
("But at the beginning of creation God 'made them male and female."') quotes Genesis
2:24 ("Therefore shall a man leave his father and his mother, and shall cleave unto his
wife, and they shall become one flesh.") and 1:27 ("[I]n the image of God he created them,
male and female he created them."), and seems to make the exact same exegetical moves
based on the Creation story that the other sectarian Jews did. In fact, he even strengthens
it, by using more specific terminology; in his version the unambiguous "two" shall be
one flesh, as opposed to the slightly more ambiguous "and they" in the original verse.
Later, Tertullian would pick up on and use Genesis 1:27 and also 7:9 to strengthen his
arguments. Such Biblical exegesis certainly ran counter to traditional Jewish teachings,
and the manner in which the Rabbis understood the meaning of these texts. However, since
their own moral convictions prevented their giving expression to any outright opposition
to monogamy, the Rabbis were in somewhat of a quandary. The least they could do then
to oppose such heretical interpretation was to at any rate try and uphold the theoretical
feasibility of polygamous freedom in the academic setting.2 49 Lowy writes:

[In order] to counterbalance [the Jewish sectarians who claimed to
recognize a Biblical commandment in monogamy], the Rabbis clung
rigidly to an ancient legal freedom as expressed in the law, even if it was

246 Leviticus 18:18, with the word "sister" being understood in its broadest application, i.e., another woman.
See Lowy, supra note 149, at 132 (quoting Elijah Basyatchi, Aderet Eliyahu).

247 Mark 10:11.

248 Cf Lowy, supra note 149, at 132.

249 Id. at 130-31, quoted in Frisch, supra note 36, at 118.

26.2 281



COLUMBIA JOURNAL OF GENDER AND LAw

out of keeping with their own ethical feeling. It seems that, although they
were opposed to polygamy on grounds principally moral, because the
sectarians had proscribed polygamy on the basis of an alleged Biblical
injunction, they could not themselves openly and explicitly condemn it.
Social conditions did not warrant such radical preaching, since in reality
the Jewish family life was, as a rule, monogamous. They were thus in the
happy position of being able to afford to retain in their legal doctrine the
traditional right of polygamy, and this academic tendency was emphasized,
so as "to lend no support to the words of them that say that monogamy was
a biblical commandment." 250

Such an idea of a polemic legal stamp was certainly not unheard of or unattested to;
just in the area of family law, for instance, both the sectarians and the early Christians
sought to place severe limits on divorce, 2 ' and so the Rabbis, despite the fact that they also
did not like divorce, 25 2 went out of their way to record the fact that even if a husband simply
found someone that he liked better than his current wife, that alone was grounds enough
to legally divorce her.253 Similarly, the Rabbis promoted uncle-niece marriage, considered
incest by all sectarians, quite possibly simply to assert the orthodox position against what
they considered the sectarians' faulty exegesis, and to defend the traditional system against
the possibility of heretical schism. 25 4

Conversely, the factors that led the Rabbis to push for polygamy in the academy might
also explain why there was no polygamy in practice. Outside of the ivory tower, Romans
and sectarian Jews were both preaching against the practice, which led to a culture that
frowned upon the taking of a second wife. Satlow 255 however notes that even this does not
tell the whole story. According to Satlow, the lack of polygamy was not just a reaction to

250 Id.

251 See Matthew 5:32, 19:9; Mark 7:21-22; Luke 18:20; see also SOLOMON SCHECHTER, DOCUMENTS OF JEWISH
SECTARIES 71-72 (Joseph A. Fitzmyer trans., Ktav Pub. House 1970).

252 See, e.g., BABYLONIAN TALMUD, Gittin 90b ("If a man divorces his first wife, even the Altar cries . . .

253 MISHNA, Gittin 10:10. Lowy notes that the strength of the position is made even more clear by the fact
that the speaker here is Rabbi Akiva, whose marriage was famously happy and ideal. See MISHNA, Gittin 9:10;
BABYLONIAN TALMUD, Nedarim 50a.

254 The Zadokites, for instance, derived their prohibition from Leviticus 18:3 and an analogy between men
and women. For more, and for a similar discussion regarding intermarriage, see Lowy, supra note 149, at
136-38.

255 SATLOW, JEWISH MARRIAGE IN ANTIQUITY, supra note 127, at 19.

282 26.2



COLUMBIA JOURNAL OF GENDER AND LAW

Romans or to "other" Jews, it was even closer to home. The Rabbinic Jews living in the
land of Israel had been exposed to the same Biblical stories as their sectarian brethren, and
had also increasingly developed a view of marriage as "natural" and rooted in creation, i.e.
in the same primordial and paradigmatic coupling of Adam and Eve that the other sects had
focused on. Despite their ideological justifications for it, and the precise legal readings that
exegetically allowed for it, their own internal intellectual environment had also clearly led
them to adopt a practically monogamous outlook. These positions were therefore, at least
partially, outgrowths of an internal theological development based on a shared canon with
others, not just of influence by completely external factors.

VI. Gaonic Period and the Early Rishonim

The title "Gaon" was given to the heads of the two Babylonian academies, in Sura and
Pumbedita. While the positions existed in the Amoraic era, the title began to be consistently
used towards the close of the sixth century, at the end of the Persian rule, when Mar Rab
Hanan was appointed Gaon of Pumbedita, and it was used until the death of Hai, the last
Gaon of Pumbedita, in the year 1038.256 The primary sources regarding polygamy in both
the Geonic and Rishonic (early commentators) eras are from early responsa literature
(records of legal questions posed to rabbis, and their answers), and eventually, as they
developed, the early legal codes.

Before we shift to Babylonia, however, it is important to remember that there was
still an independent Jewish community in Israel even during this period. A number of
sources preserve testimony about polygamy in Israel during the post-Talmudic period,"'
but generally speaking, the halakhic tradition recognized the woman's right to insist on
monogamy, as per Rabbi Ammi's ruling. According to Mordechai Akiva Friedman, this
explains why in the dozens of ketubot we have found in Israel from the period of the Geonim,
no commitment is made by the husband not to engage in polygamy, and no consequences
are discussed if he does. Presumably, this was because the recognized halakha stated that
if she wanted to demand a divorce in such a case she had that right, there was no need to
stipulate this in writing.258

256 See Gaon, in JEWISH ENCYCLOPEDIA (1906), available at http://www.jewishencyclopedia.com/
articles/651 I -gaon.

257 See, e.g., SEFER HAMAASIM LIVNEi ERETZ YISRAEL: MEKOROT UMEHKARIM, quoted in 8 MARRIAGE AND ITS

OBSTACLES, supra note 115, at 69.

258 Id. Contrast this with the dozens of ketubot in the Cairo Genizah reflecting the practice of Egyptian Jewry.
Here there were conditions and penalties, and in fact there is evidence that people violated these conditions
notwithstanding the hefty price. See id. at 69-70.

26.2 283



COLUMBIA JOURNAL OF GENDER AND LAW

Sherira ben Hanina Gaon (906-1006 C.E.) was the head of the academy of Pumbedita
from 968-1006 C.E.259 In one of his responsa, Sherira Gaon held that if a man was married
for ten years and his wife remained barren, but the man could not afford to divorce her (i.e.
pay her ketubah), and he could also not afford to take and support a second wife, he must
remain with the first wife and not take a second. 2

6 The implication is that if he could afford
a second wife, he could take one, which is consistent with the view of the Amora Rava, the
historic head of Pumbedita.2 6' A second responsa makes this point explicitly:

We have seen it thus: every man according to his means, without there
being any set rule. As the Merciful One wrote (Deuteronomy 17:17): "Nor
shall he multiply wives to himself' and we learned (Mishna Sanhedrin
2:4): "But only eighteen"-this reference is to the king ... but an ordinary
man ... need not restrict himself, as long as he can support each one in
food and clothing. 262

Sherira's views were also accepted in practice in Spain and North Africa. 263 Another
responsum from the Pumbedita academy, written by Ray Hai Gaon (939-1038), explicitly
holds that the halakha follows Rava, and that a man can have more than one wife. 2

64

While still not disallowing the practice of polygamy completely, the tradition at Sura
did seem to track closer to the ruling of Ray Ammi. Historically, this makes a lot of sense;
although he left to Israel at an early age, Ray Ammi was born and raised in Babylonia, and
began his studies under Ray, in Sura.2 65 Hilai Gaon, a ninth century Gaon of Sura, wrote
that if a man's first wife is not agreeable to his taking a second wife, she can force him
to pay her ketubah, even against his will. 2" Similarly, although the Sura tradition favored

259 Sherira ben Hanina Gaon, in 14 ENCYCLOPAEDIA JUDAICA 1381 (2007). Gaon means "genius" or
"honorable sage."

260 Frisch, supra note 36, at 121 (quoting BENJAMIN M. LEWIN, OTSAR HAGEONIM YEVAMOT 143 (1928)).

261 EPSTEIN, THE JEWISH MARRIAGE CONTRACT, supra note 103, at 21.

262 FALK, JEWISH MATRIMONIAL LAW, supra note 92, at II (quoting BENJAMIN M. LEWIN, OTSAR HAGEONIM

YEVAMOT 134 (1928)).

263 Id.

264 Teshuvot HaGeonin Shaarei Tzedek 4:30 (Joseph HaCohen Ardit ed., 1972); see also Ch. M. Horowitz,
Toratan shel Rishonim, Halakhische Schriften der Geonim 2 (188 1).

265 See BABYLONIAN TALMUD, Nedarimn 40b-4 I a; Anni Bar Nathan, in 2 ENCYCLOPAEDIA JUDAICA 82 (2007).

266 Shaarei Tzedek, supra note 264, at 4:60, quoted in Frisch, supra note 36, at 122.

284 26.2



COLUMBIA JOURNAL OF GENDER AND LAW

levirate marriage to chalitza, Hilai ruled that if a widow did not want levirate marriage
since the brother-in-law was already married, the brother-in-law could be compelled to
perform chalitza instead.267

Notwithstanding the continued legal tolerance for polygamy, what we do find in the
Geonic period is the continued seeming disapproval of the practice by the general populace.
Epstein, for instance, points to the extant ketubot from wealthy families that were found in
the Cairo Geniza, ketubot that contained clauses such as the following:

[H]e may not marry or take during the bride's lifetime and while she is
with him another wife, slave-wife, or concubine, except with her consent,
and if he does . .. he shall from this moment be under obligation to pay her
the ketubah in full, and release her by a bill of divorce by which she shall
be free to remarry.2 68

Towards the end of the Geonic era, rabbinic authorities began to move to the satellite
communities in other parts of the world.2 69 While there are some references to cases of
polygyny found in the responsa of the North African and Spanish rabbis, such as Rabbi
Isaac Ben Jacob Alfasi (1013-1103, considered by many to be the last of the Gaonim,
by others the first of the Rishonim),27 0 it seems that they were in a similar position to
their Gaonic forebears. While it was legally permissible to have multiple wives, it was not
widely practiced, even in Sephardic (Jewish communities of Spanish, Portuguese, or North
African descent) enclaves.27' Some Jews in Spain and other areas regulated bigamy by
inserting clauses in the marriage contract protecting the wife against the husband's decision
to take another.272 In one responsum, Rabbi Alfasi deals with a case in which a woman
whose husband had married a second wife insisted that he pay her a fine of two hundred

267 Id. at 1:52.

268 EPSTEIN, THE JEWISH MARRIAGE CONTRACT, supra note 103, at 272, quoted in 8 MARRIAGE AND ITS
OBSTACLES, supra note 115, at 63; see also JACOB MANN, 2 TEXTS AND STUDIES 177 (1931-38); SHELOMo Dov
GOITEIN, 3 A MEDITERRANEAN SOCIETY 147 (1991) [hereinafter GOITEIN, MEDITERRANEAN].

269 See RABBI ABRAHAM IBN DAUD, SEFER HAKABALAH for the legend of how exactly this happened.

270 See, e.g., RABBI ISAAc ALFASI, SHE'ELOT U'TESHUVOT HARIF 282 (1825), where Rabbi Alfasi discusses
a question regarding a man who had two wives; see also AVRAHAM GROSSMAN, PIOUS AND REBELLIOUS: JEWISH

WOMEN IN MEDIEVAL EUROPE 79-81 (Jonathan Chipman trans., 2004) [hereinafter GROSSMAN, PIOUS AND

REBELLIOUS].

271 Frisch, supra note 36, at 123.

272 FALK, JEWISH MATRIMONIAL LAW, supra note 92, at 12.

26.2 285



COLUMBIA JOURNAL OF GENDER AND LAW

dinars. Rabbi Alfasi reports that this was in fact the custom in Spain from early times, 273

perhaps reflecting a compromise position between Rava and Ray Ammi: the husband did
not have to divorce her, but was communally sanctioned. 274 His student, Rabbi Joseph ben
Meir HaLevi ibn Migash (1077-1141 C.E.) mentions a woman whose husband undertook
that in the event that he married another wife, he would be obliged to pay the first wife her
ketubah.2" Falk claims that these clauses, called "Kairouan clauses" after the city in which
they originated, are "characteristic of a society where polygamy is the rule, yet which
nevertheless evince trends towards monogamy. "276

In the Ashkenazic communities, primarily in Germany and Northern France, no
mention is found of stipulations in Jewish marriage contracts to protect the first wife
in case the husband decided to take another wife.2" It is quite possible that this was a
reflection of the difference in surrounding society; the Sephardic Jews lived amongst the
Muslims, who also had these prenuptial agreements, and the Ashkenazic Jews amongst the
Christians, who did not.278 In the eleventh or twelfth century, however, something drastic
occurred: polygamy was officially prohibited by rabbinic decree for the Jews of Germany
and Northern France.

VII. The Ban of Rabbeinu Gershom

The decree to end polygamy is famously attributed to Rabbeinu Gershom ben Judah of
Mayence (960-1040 C.E.), and is commonly referred to as the CheremDiRabbeinu Gershom
(the ban of our teacher, Gershom) because the decree was fortified by a device that put a

273 ALFASI, supra note 270, at 120.

274 See GROSSMAN, PIOUS AND REBELLIOUS, supra note 270, at 81, who notes that this can be thought of as a
similar approach to the later Germanic ban, just using economics instead of excommunication in the communal
edict trying to limit the practice of polygamy. The edict here would have been accepted no later than the
beginning of the eleventh century, making it one of the earliest communal edicts knows to us from Spain. Id.
(quoting A.H. Freiman and Z. Leiter). However, Grossman himself thinks from the continuation and context of
the responsa that the edict in question was about husbands not leaving town without their wives for long periods
of time (similar to Rabbeinu Tam's edict, infra note 341 and accompanying text), and not about polygamy at all.

275 RABBI JOSEPH IBN MIGASH, TESHUVOT YOSEF IBN MIGASH 129 (1870).

276 FALK, JEWISH MATRIMONIAL LAW, supra note 92, at 12 (citing TESHUVOT GEONE MIZRACH U-MA'ARAV
175-76 (Mueller ed., 1888), a responsa from Hanoch (about a case of polygamy)).

277 Id. at 13.

278 See FALK, JEWISH MATRIMONIAL LAW, supra note 92, at 12.

286 26.2



COLUMBIA JOURNAL OF GENDER AND LAW

ban on anyone who transgressed it. 279 With a genius not only for scholarly pursuits but also
for practical communal organization, Rabbi Gershom achieved not only the establishment
of Jewish learning in his country but also the uniting of the scattered Jewish communities
into a unified federation.28 0 He established takkanot (decrees) regulating the relations of the
communities to one another and to their members, and other edicts in civil law,281 and while
the communal ordinances were quite significant and innovative in his day, what Rabbi
Gershom is most famous for are his decrees in the religious arena, particularly in the area of
family law. 2 82 The delivering of the edict banning polygamy probably happened sometime
around the year 1030 C.E., at a synod of scholars under the presidency of Rabbi Gershom,
at one of their meetings in connection with one of the customary large fairs (although, as
we will see, some scholars do question whether Rabbi Gershom was truly the originator of
the ban).2 83 As compared to the ketubah clauses, this ban prohibited polygamy even with

279 Because the Talmud clearly allows the existence of polygamy, the prohibition was introduced in the
form of a takkanah, or rabbinic ordinance. The leading rabbis had the power to order that a person who breaks
the rules of the community be excommunicated from the community, and to forbid any contact with him. Thus
while there is no biblical or Talmudic punishment for practicing polygamy, the violator is threatened with being
banned from the community whose takkanah he has broken.

280 FINKELSTEIN, supra note 115, at 20.

281 Including ordinances protecting Jewish tenants, the privacy of letters, and the jurisdiction of the local
courts. See id. at 30-35.

282 Id. at 22-23.

283 Rabbeinu Gershom ben Judah was one of the first great German Talmudic scholars. His name is
connected to numerous takkanot (rabbinic ordinances), of which the ban against polygamy is the most famous.
No text of the ban has been preserved, and no reference is made to it until more than a century after its
purported promulgation. A responsum written by the famous French commentator Rashi (1040-1105 C.E.)
regarding the case of a man who married a second wife because his first wife had borne him no children
in their ten-year marriage makes no mention of the problem of the ban or of the need to lift it. See JOEL
HAKOHEN MUELLER, TESHUVOT CHAKHMEI TSAFAT U-LOIR 14, 28 (1881). Additionally, the ban was said to have
been imposed on the Jewish communities of Speyer, Worms, and Mainz. However, the Jewish community
of Speyer was not founded until 1084 C.E., more than fifty years after Rabbeinu Gershom's death. FALK,
JEWISH MATRIMONIAL LAW, supra note 92, at 13-14. If, in fact, it was originally connected with the community
of Speyer, it must have been promulgated sometime after Rabbeinu Gershom had died. According to Louis
Finkelstein, even if Rabbeinu Gershom was a prime mover behind it, the ordinance must have been established
"by a synod [that met under the direction of Rabbeinu Gershom] representing the various communities for
whom it was intended." See FINKELSTEIN, supra note 115, at 25. The oldest extant source linking the ban to
Rabbeinu Gershom is from circa 1160 C.E. by Rabbi Eliezer ben Joel HaLevi of Bonn (1140-1225) in regard
to the question of whether or not the decree nullified the Biblical commandment of levirate marriage in favor
of chalitza. In that particular case, the judges did not address that issue but ruled that levirate marriage was
inappropriate since the woman was too old to bear children. Later, Rabbi Meir ben Baruch of Rothenburg
(1215-1293), among others, attributed the ban to Rabbeinu Gershom. See, e.g., IRVING A. AGus, RABBI MEIR OF

26.2 287



COLUMBIA JOURNAL OF GENDER AND LAW

the wife's consent, presumably because such practice was contrary to public conceptions
of morality at that time.28" Eventually, the ban was extended to all of Ashkenazic Jewry,
though the Sephardic communities never officially adopted it. The ban was revolutionary
in that it prohibited something expressly permitted by the Old Testament, a bold move in
rabbinic interpretation and innovation.

It is important here to stop and place this ban in its proper historical context. First, as we
have seen, for a long time, the Jewish community in Christian lands had been, practically
speaking, an almost completely monogamous one. 285 One consequence of this reality was
that when a man wanted to marry someone other than his wife, his only option was to get
divorced, whether his wife agreed to it or not. This led to the often-overlooked second part
of Rabbeinu Gershom's legislation: the ban on polygamy was in fact accompanied by a
related ban on unilateral divorce.

VIII. Judaism's Approach to Marriage, Generally

In order to fully appreciate this development, we will briefly address the history and
structure of the Jewish marriage laws that led to this historic moment.286 The two different
viewpoints that developed over the course of Jewish history saw marriage as either a

ROTHENBURG 282-83, 301 (1970) (Responsa 245 and 273). Elsewhere though, Rabbi Meir cites a judgment of
Rabbeinu Gershom himself, in which he allowed polygamy consistent with Rava's ruling from BABYLONIAN
TALMUD, Yevamot 6a. See TESHUVOT, Maharam 865. Falk argues that this proves that he was not the author
of this decree, although it is also possible that this case came before him in his early years. See FALK, JEWISH
MATRIMONIAL LAW, supra note 92, at 14-15. Many scholars believe that the ban was not actually issued until
the twelfth century, and was then retroactively attributed to the highly respected and authoritative Rabbeinu
Gershom. Another possibility is that Rabbeinu Gershom made informal pronouncements against polygyny but
never himself actually issued a formal ban against plural marriages, and that such a ban was later introduced
in his name by his students. Regardless of whether it originated with him, his students, or later in his name,
the validity of the ban was never questioned. See Gershon Ben Judah Me'or Ha-Golah, in 7 ENCYCLOPAEDIA
JUDAICA 551, 552 (2007). For the purposes of this Article, we will take Jewish law's understanding of the ban,
with Rabbi Gershom's weight behind it.

284 Russell K. Ryan, And Then There Was One: An Analysis and Comparison ofPolygamy Among Jews and
Mormons, 9 JEWISH L. ANN. 205, 215 (1991).

285 In all of the halakhic rulings, commentaries, custom books, liturgical poems, and chronicles, including
the memorial books containing the names of those killed during the First Crusade in 1096, there is no mention
of anyone marrying a second wife, save a few isolated instances of doing so in "a case of a mitzvah," i.e.,
barrenness or levirate marriage. See GROSSMAN, PIOUS AND REBELLIOUS, supra note 270, at 73.

286 See MICHAEL J. BROYDE, MARRIAGE, DIVORCE, AND THE ABANDONED WIFE IN JEWISH LAW: A CONCEPTUAL
UNDERSTANDING OF THE AGUNAH PROBLEMS IN AMERICA (2001) [hereinafter BROYDE, THE ABANDONED WIFE].

288 26.2



COLUMBIA JOURNAL OF GENDER AND LAW

partnership model, wherein either side has an unfettered right to exit, or as a corporate
model, in which one party cannot exit merely by deciding that they want to leave. Divorce
law therefore developed as a reflection of marriage; in fact, the Biblical verses describing
divorce appear almost incidentally in the context of describing the remarriage of one's
divorcee.

In general, marriage in Judaism is a contractual agreement requiring the mutual consent
of both parties, unconditionally given. In regard to divorce, however, Deuteronomy 24
states:

When a man takes a wife, and marries her, then it comes to pass, if she
finds no favor in his eyes, because he has found some unseemly thing
in her, that he writes her a bill of divorce, and gives it in her hand, and
sends her out of his house, and she departs out of his house, and goes and
becomes another man's wife, and the latter husband hates her, and writes
her a bill of divorcement, and gives it in her hand, and sends her out of his
house; or if the latter husband die, who took her to be his wife; her former
husband, who sent her away, may not take her again to be his wife. 287

Talmudic authorities took these verses to mean that the husband has a unilateral right to
divorce his wife without fault, while the wife has no reciprocal right to divorce her husband
except in cases of hard fault. The majority opinion in Jewish law maintains that there was
no right to dower (ketubah) under biblical law, although there is an opinion which states
that there was a limited right to dower, restricted to first marriages of virgin brides, in the
amount of two hundred zuz. 288 Biblical family law appeared imbalanced in other ways
as well; as we have been discussing, a man could be married to more than one wife, any
of whom he could divorce at will, whereas a woman could be married to only one man
at a time, and had no clearly defined right of exit aside from perhaps hard fault.28 9 If the
husband and wife no longer wished to live together, the husband could just marry another
woman as long as he continued to support his first spouse.

287 Deuteronomy 24:1-4

288 See Michael J. Broyde & Mark Goldfeder, Divorce in Judaism, in CULTURAL SOCIOLOGY OF DIVORCE: AN

ENCYCLOPEDIA 622-26 (Robert E. Emery & J. Geoffrey Golson eds., 2013) [hereinafter Broyde & Goldfelder,
Divorce in Judaism].

289 IRVING A. BREITOWITZ, BETWEEN CIVIL AND RELIGIOUs LAW: THE PLIGHT OF THE AGUNAH IN AMERICAN

SOCIETY 9 (1993).

26.2 289



COLUMBIA JOURNAL OF GENDER AND LAW

The biblical rules of divorce could thus be summarized as follows: The husband had
a unilateral right to divorce (and have had to pay dower absent fault in some marriages).

The Talmud attempted to mitigate the disparities between men and women by creating
a minimum dower for all brides, which became, by rabbinic decree, a precondition to any
marriage. Thus, while the right to divorce remained unilateral only for the husband, it was
now at least somewhat restricted by a clear financial obligation to compensate his wife if he
so exercised this unilateral provision, absent any judicially declared fault on her part. The
Talmud even recorded views that if the husband cannot pay the financial obligation he is
prohibited from divorcing his wife.290 In order to protect herself from a frivolous divorce,
the woman could also insist on a dower higher than the minimum amount promulgated by
the rabbis. In addition, the Talmud clearly enunciated the right of the wife to sue in cases
of fault, including such grounds as provable repugnancy and impotence. In such a case,
the husband was required to divorce his wife (and in most cases pay the dower as well).
Finally, divorce could be by mutual consent, subject to whatever financial agreement the
parties wished to follow.291

Nonetheless, a significant imbalance in exit rights remained because marriages could
still be polygamous but not polyandrous, and if the husband and wife no longer wished
to live together, the husband had the legal right to simply marry another woman, so long
as he continued to support his first wife. As a general rule, she could not, under such
circumstances, sue him for divorce, although she could perhaps restrict his right to remarry
with a special ketubah provision.2 92 As it was under biblical law, marriage remained
fundamentally a partnership for the husband and a corporate structure for the wife. The
Talmudic rules could therefore be summarized as follows:

1) The husband had a unilateral right to divorce and had to pay dower absent fault.

2) There was divorce by mutual consent with dower to be determined by the parties.
There was a right to divorce through a judicial declaration of "hard" fault: if by the
woman, with no dower; if by the man, with dower.293

290 See ShulchanAruch, Even HaEzer 117:11.

291 See Broyde & Goldfeder, Divorce in Judaism, supra note 288, at 623.

292 See BABYLONIAN TALMUD, Yevamot 65a (translation by author). But see the view of Ray Ammi, supra
note 187 and accompanying text.

293 Broyde & Goldfeder, Orthodox, supra note 28, at 624.

290 26.2



26.2 COLUMBIA JOURNAL OF GENDER AND LAW 291

Shortly after the close of the Talmud, during the Gaonic times, the rabbis of that period
changed or reinterpreted 294 the substantive understanding of Jewish law to vastly increase
the right of a woman to sue for divorce. All a woman had to do was leave the household
for a certain period of time and she had an automatic right to divorce, according to most
opinions, with a full or partial right to dower. In addition, it appears from the responsa
literature that when a marriage needed to end and a divorce from the husband was not
forthcoming, the rabbis of that era felt that they had the power to step in and annul it."'
The husband still had a unilateral right to divorce, and had to pay dower absent fault. Thus,
during the Gaonic period, Jewish divorce law worked as follows:

1) The husband had a unilateral right to divorce and had to pay dower absent fault.

2) The woman had a unilateral right to divorce, and if she exercised it, she received
dower.

3) There was divorce by mutual consent with dower to be determined by the parties.

4) There was divorce through a judicial declaration: if by the woman, with no dower;
if by the man, with dower.296

Within a hundred years of the Jewish expulsion from Babylonia, however, there was full
abandonment of the rules used by the geonim in favor of a number of different alternatives.

The great Sephardic authority Rabbi Moshe ben Maimon (Maimonides, 1135-1204),
like all of the authorities after him, ruled that Jewish law did not possess any annulment
power, but liked the Gaonic idea of making marriage a partnership for everyone involved.

294 Through the use of a mechanism called takanta de-mitivta (lit. "Decree of the Academy"). How exactly
it worked is unclear. See BREITOWITZ, supra note 289, at 50-53.

295 There is considerable evidence that the era of the geonim was the only one in which the annulment
process (mentioned in only a very few cases in the Talmud, and always either pre-consummation or involving
bad faith marriages or divorces) was actually used with any consistency or frequency by rabbinic authorities.
See BREITOWITZ, supra note 289, at 62-65 for a discussion of the circumstances under which annulments were
performed. There are five places in the Talmud where a marriage is declared terminated without the need for
a divorce document, based on the concept that "all Jewish people who marry do so with the consent of the
Sages, and the Sages nullified the marriage." Id. See, for instance, BABYLONIAN TALMUD, Gittin 33a, Bava Batra
48b. These situations all revolve around marriages under duress or other cases where one of the parties acted
improperly.

296 Broyde & Goldfeder, Orthodox, supra note 28, at 624.



COLUMBIA JOURNAL OF GENDER AND LAW

He therefore greatly increased the woman's rights, expanding the obligation upon a
husband to divorce his wife for fault to include even the case of her simply asserting
(without any proof) that "he was repugnant to her."29

1 In such a circumstance, a Jewish
court could compel the divorce under threat of court sanction, including physical coercion.
This gave both men and women the unilateral right to divorce, with no dower paid when
the woman initiated the divorce absent cause, and dower paid when the husband initiated
divorce without cause. This no-fault divorce system remains the normative law in only
small portions of the Sephardic Jewish community today (such as Yemen). Again, it was
based on a partnership understanding of marriage; when either side wants out, Jewish law
allows him or her to leave.2 98 European Jewry also ruled that Jewish law did not possess
any annulment power, but took a divergent approach, which becomes important again for
our discussion of what exactly happened to Jewish polygamy. Rabbeinu Gershom felt that
rather than expanding the rights of the woman, in order to equalize the rights of the husband
and wife it was necessary to restrict the rights of the husband, and prohibit unilateral no-
fault divorce by either husband or wife. Divorce was limited to cases of provable fault
or mutual consent; fault itself was vastly redefined to exclude cases of soft fault, such as
repugnancy, and in only a few cases of serious fault could the husband actually be forced
to divorce his wife or the reverse. 29 9

Although no extant copy of the original document remains, according to tradition this
edict was in fact part of the very same decree that prohibited polygamy, placing considerable
pressure on the man in a marriage that was ending to actually divorce his wife, since
without a proper divorce procedure neither could remarry. According to this approach,
Jewish law permitted divorce through only mutual consent or very significant fault; when
there was no finding of fault, little (perhaps other than imposition of a support obligation)
could be done to encourage the couple to actually get divorced. Absent hard fault, this view
saw marriage as entirely corporate in nature; it took the consent of both parties to enter and
the consent of both parties to exit.3"

297 MISHNEH TORAH, Hilkhot Ishut 14:8-9, 14:14.

298 Broyde & Goldfeder, Orthodox, supra note 28, at 624.

299 This insight is generally ascribed to Rabbeinu Tam in his view of neus alay (an assertion of repugnancy).
In fact, it flows logically from the view of Rabbeinu Gershom, who not only had to prohibit polygamy and
coerced divorce, but divorce for easy fault, as Maimonides' concept of repugnancy is the functional equivalent
of no fault, identical in outcome to the Gaonic annulment. See BROYDE, THE ABANDONED WIFE, supra note 286,
at 142 n.12.

300 See Goldfeder & Broyde, Orthodox, supra note 28, at 625. See also BROYDE, THE ABANDONED WIFE, supra
note 286, at 142-43. A second view within European Jewry agreed that there was no annulment power and that
it was necessary to restrict the rights of the husband by banning polygamy and by prohibiting unilateral no-

292 26.2



COLUMBIA JOURNAL OF GENDER AND LAw

And so, as we have seen, not one but many factors favored the establishment of a
strong form of marriage at this moment in history; externally, the influence of the Christian
tradition,3 0' and internally both the Ashkenazi aspiration to maintain the Palestinian
monogamous model, which accorded well with their own worldview, along with the
growing desire of the community to grant increased stability to marriage and certainty to
a woman. 3 02 One could say that these moves shifted the model of marriage away from one
of male dominance to one of companionship; men could no longer marry new wives in
addition to their older ones or get rid of older ones for newer models, and so young people
looking to get married would be even more selective for compatibility, and married couples
would continue living together into old age. 3 03

IX. Rabbeinu Gershom's Inspirations and Influence

Scholars such as Zacharias Frankel insist that even before the famous ban on polygamy,
monogamy

had been accepted previously as a general custom, and was merely
reinforced by the imposition of the ban . . . polygamy had in any event
begun to disappear from medieval Jewish society, since public opinion
had come to disfavor it, and Gershom Meor HaGolah (the Light of the
Exile) merely summarized this attitude.304

fault divorce by either husband or wife. This was true under all circumstances except where the marital estate
had ceased to exist and the couple had de facto ended all marital relations. What this did was to include the
failure of the marriage as itself grounds for either to coerce a divorce. According to this approach, Jewish law
permitted divorce only though mutual consent; failure of the marriage through the end of a marital residence;
or very significant fault. This view of marriage had some corporate aspects; while the corporation was running
neither had the right to end it; once the corporation ended de facto it could be made to end de jure. Finally,
Oriental Jewry agreed that Jewish law did not possess annulment power, and that fault was limited to hard fault;
however, they rejected the European decrees prohibiting unilateral divorce by the husband and polygamy. They
thus effectively returned to the classical Talmudic rules of regulation and restriction of the husbands' right to
divorce by dower contract stipulations. Most decisors ruled that absent fault it was prohibited to divorce one's
wife unilaterally if he could not afford to pay the contract. A woman could only sue for divorce in cases of
hard fault, such as leprosy. In modem times, nearly all halachically observant Jewish people (those in America,
Israel, and Europe) follow one or the other of the European models of Jewish law divorce.

301 Which was moving towards a model founded on consent, and a strict condemnation of polygamy.

302 See Michael S. Berger, Two Models of Medieval Jewish Marriage: A Preliminary Study, in MARRIAGE,

SEX, AND FAMILY IN JUDAISM 128-31 (Michael J. Broyde & Michael Ausubel eds., 2005).

303 See WOMEN AND JUDAISM: NEW INSIGHTS AND SCHOLARSHIP (Frederick E. Greenspahn ed., 2009).

304 Id. at 1. Other scholars, such as Leopold Loew, insist that "polygamy existed both before and after the

26.2 293



COLUMBIA JOURNAL OF GENDER AND LAW

Truth be told, eleventh century Ashkenaz is fairly well documented, with extant halakhic
rulings, commentaries, custom books, liturgical poems, and even historical chronicles
memorializing and archiving medieval Jewish life, and none of them makes mention of
anyone marrying a second wife, with the rare exception of a case of mitzvah, i.e., barrenness
or levirate marriage.3 0

In regard to the question of precise authorship, Rabbi Meir Katzenellenbogen of
Padova wrote that Shimshon of Sanz was actually the originator of the ban,30 6 and that the
reason behind it was "for since we are in exile, we should not take many wives, nor beget
many children, since we would not be able to rear them nor fend for them properly." 307

Others assume that it was done by later rabbis, who then pinned responsibility on Rabbeinu
Gershom, a figure whose shoulders were broad enough that the legislation would stick.30

Regardless of whether or not the ban was actually Rabbeinu Gershom's work, two
responsa of Rabbi Eliezer ben Nathan illustrate that: a) monogamy was the general practice
in the beginning of the twelfth century, and b) that there had been some kind of community-
wide proclamation made on the subject. In one, he notes that there has been a fundamental
change, writing that: "[T]his was the rule in former generations, when a man married a
second wife .... But in our generation, when one cannot marry a second wife."3 09

And in another, he explains the reason for the change and seems to cite to the famous
edict: "Today, however, when a communal ordinance prohibits polygamy and [compulsory]
divorce, we do not act according to this rule."310

There are three possibilities then: that the ban happened just as tradition would have
it and forbade a real practice; or, alternatively, that it was merely a codification of already

issuing of the ban." Id.; see also Frisch, supra note 36, at 128.

305 See GROSSMAN, PIous AND REBELLIOUS, supra note 270, at 73.

306 Rabbi Meir Katzenellenbogen, Responsa XIII.

307 Rabbi Meir Katzenellenbogen, Responsa XIV.

308 For detailed discussions, see works by Avraham Grossman, S. Lowy, and Elimelech Westreich, among
others.

309 Eliezer ben Nathan, Even Ha 'Ezer, Ketubot, quoted in FALK, JEWISH MATRIMONIAL LAW, supra note 92,
at 16 n.2.

310 Id. at 16 n.4.

294 26.2



COLUMBIA JOURNAL OF GENDER AND LAw

present feelings and existing social praxis;3 " or it is also possible that it was something
somewhat aspirational, an ideal that was announced in a channeling sort of way and that
gained more and more acceptance over time as traditional and social values coalesced
around an understanding of the family norm until it finally took hold.3 12 No matter its
origins, within a couple of centuries the ban was known by Rabbeinu Gershom's name,
and his students were encouraged to enforce it strictly, as though it were a biblical
commandment.313

A twelfth-century responsa from Eliezer ben Joel HaLevi makes it clear just how
seriously the ban was enforced: a husband whose wife was demented came before the
Communal Council and asked for an exemption from the ban in order to be able to marry
a second wife. The Council at first refused to even hear his case, and when they finally
did, they refused to grant the exception, holding that it be "preferable that one soul should
be lost than that an enormity be carried out as precedent for generations to come."3 14 This
was so even though it was suspected that he was living with another woman in secrecy;
the rabbis wanted to do nothing that would even on its face upset the validity of Rabbeinu
Gershom's ban.

Once monogamy became the rule, it often took precedence even over man's highest
duty of procreation; thus, in the view of some leading authorities," it was better for a man
to remain childless than to violate Rabbeinu Gershom's ban. '6 Still, it is interesting to
note that the ban "never assumed such extensive authority as would enable it to annul the
validity of any marriage carried out in defiance of it."3"

311 See Pearl, supra note 60, at 28.

312 A survey of responsa points toward a somewhat slow shift from legalized to forbidden polygamy; what
starts with wives complaining to courts about husbands taking second wives but ultimately losing the cases
moves towards polygamy becoming the exception in rare cases (such as levirate marriage or barrenness) and
finally illegal altogether.

313 Asher ben Yehiel, Responsa HaRosh 43:8. Rosh compares it to the takkanot of the geonim, and notes
that the ban is of an even higher status.

314 Eliezer ben Joel HaLevi, Mavo, quoted in FALK, JEWISH MATRIMONIAL LAW, supra note 92, at 17 n. 1;
Solomon Luria, Responsa 65, quoted in FALK, JEWISH MATRIMONIAL LAW, supra note 92, at 18 n. .

315 See infra note 370 and accompanying text for more on this discussion.

316 EPSTEIN, THE JEWISH MARRIAGE CONTRACT, supra note 103, at 27 n.3.

317 FALK, JEWISH MATRIMONIAL LAW, supra note 92, at 33 n.49. Canon law, however, did make that move.
Interestingly enough though, Jewish people seem not to have taken advantage of this "weakness" in the ban;
we find no mention of cases of marriage in defiance of the ban lending further credence to the theory that this

26.2 295



COLUMBIA JOURNAL OF GENDER AND LAw

We established above that the rarity of polygamy was probably due in part at least
to the influence of the Christian environment (and perhaps the greatest proof of this
relationship is the simple fact that in the French and German communities in which
the ban was accepted, the predominant culture was Christian and monogamous, while
in the Muslim neighborhoods, where polygamy was upheld, the ban was never really
established), and indeed Rabbi Jacob Emden's responsa, in which he describes the ban as a
result of Christian pressure, is probably the most well known source for the reason behind
its promulgation."'" We must stress, however, that the ban also reflects a continuation of
the internal Jewish trend and moral development towards monogamy. Moritz Gudemann
points out that the Christians of the Rhinelands at that time, and even centuries later, were
not always above polygamy, '9 and that even in the Orient, where polygamy was acceptable
to the host population, and where the ban had less authority, the Jewish people for centuries
had already been developing formal working tools and devices to maintain monogamous
standards, such as the insertion of clauses into the marital agreement.32 0 The divide between
Christian and Muslim lands cannot, therefore, be the only factor.

Among the reasons given for Rabbeinu Gershom's ban (other than Christian influence),
and for arguing against polygamy in general both in the Eastern European context and
worldwide amongst the Sephardim, are the following: strict monogamy was instituted to
prevent people from taking advantage of their wives;32' it was intended to avoid potential
infighting between rival wives;32 2 Rabbeinu Gershom was concerned lest the husband be
unable to provide properly for all his wives (especially during the difficult times of Exile); 33

there was a concern that a man might marry two wives in different locations who would not

ban was only cementing the reality on the ground. Id. at 34.

318 Rabbi Jacob Emden, II Responsa 15.

319 Louis Epstein notes that "the moral level of family life among the Christians of the Rhineland at that
time, and even centuries later, was not above polygamy." ESPTEIN, THE JEWISH MARRIAGE CONTRACT, supra note
103, at 25 (citing 3 MORITz GUDEMANN, GESCHICHTE DES ERZIEHUNGSWESENS 115-19 (1888)); see also ABRAHAMS,
supra note 39, at 117-18. Abrahams has an interesting theory that accounts for the split in a different way; he
assumes that the Jews around the world had developed a practical code of monogamy, but that in Muslim lands,
where it was not the standard, they relapsed into polygamy. Id. at 118-19.

320 3 MORITz GUDEMANN, GESCHICHTE DES ERZIEHUNGSWESENS 115-19 (1888), quoted in EPSTEIN, THE JEWISH

MARRIAGE CONTRACT, supra note 103, at 25-26.

321 Maharik, quoting the Rashba, cited in Darkei Moshe, Even HaEzer I n. 10.

322 Mordechai, Ketuvot 291, cited in Darkei Moshe, Even HaEzer 1 n. 12.

323 Rabbi Meir Katzenellenbogen 14; Rabbi Yehoshua Yaakov Halperin, Sefer Mishkenot Yaakov 1.

296 26.2



COLUMBIA JOURNAL OF GENDER AND LAw

know about each other,3 24 which could lead to forbidden relationships between offspring; 325

the ban was intended to avoid the inherent rivalry and hatred between rival wives, which
could also lead to the transgression of a number of biblical violations; 3 26 and, in a reversal
of the argument from a moral religious consensus across Judeo-Christian thought, it has
been suggested that the ban was adopted from Christian practice and laws not because the
Jews agreed with it in principle, but simply to avoid Christian attacks against Jews who, if
left alone, might otherwise have acted differently.327 Avraham Grossman, however, notes
that drawing too many conclusions from Christian practice and influence one way or the
other is hard; based on the evidence, if, in practice, the communities were already behaving
in an almost identical fashion, and if the idea was one of conformity for better or for worse,
then the edict would be practically superfluous. 328 Mordechai Akiva Friedman suggests
that maybe this was merely a declarative act, affirming the fact that the ancient tradition of
Ray Ammi had in fact been preserved and passed over to Ashkenaz (and, perhaps, either
showing solidarity with or at least openly conforming to the Christian community). 329 Still,
edicts were usually introduced to meet a real need, not just as declarative statements, and
so this does not seem like it would have been reason enough for the ban on its own.

Along this line of thinking, however, some scholars, such as Simon Eppenstein, have
suggested that around the beginning of the eleventh century there was a migration of Jews
from Oriental countries to Germany, and that when these Jews arrived with two wives
Rabbeinu Gershom was afraid that they would end up having undue influence on the nature

324 See BABYLONIAN TALMUD, Yolna 18b; supra note 288 and accompanying text.

325 Id.

326 Rabbi Moshe Shick, Even HaEzer 4; see also MISHNAH, Yevainot 15:4 (assumes that co-wives are liable
to give false testimony about the death of a husband in order to get rid of an unwanted rival); MISHNAH, Ketubot
10:5 (concerned that they may deal fraudulently with each other in regard to their husband's inheritance).

327 Rabbi Jacob Emden, II Responsa Sheilat Yaavetz 15.

328 See GROSSMAN, PIOUS AND REBELLIOUS, supra note 270, at 74. Also important to note is the fact that there
are no extant Christian sources accusing the Jews of polygamy anymore at this time.

329 MORDECHAi A. FRIEDMAN, JEWISH POLYGYNY IN THE MIDDLE AGES (1986), quoted in GROSSMAN, PIOUS AND

REBELLIOUS, supra note 270, at 73.

26.2 297



COLUMBIA JOURNAL OF GENDER AND LAW

of his monogamous community, leading to the official ban. 30 Salo Wittmayer Baron"'
conjectures that perhaps it was the literary sources, especially those responsa from the well-
respected geonim, that arrived from Oriental lands at that time containing documentation
of official permission to marry more than one wife, that led Rabbeinu Gershom to feel
he had to take a stand. The influence was not limited to books, however; some heads
of Ashkenaz communities in Rabbeinu Gershom's time actually traveled to Babylonia,
particularly the academy of Pumeditha in order to study under the tutelage of Rabbi Hai
Goan. One example of an Ashkenaz scholar studying in Babylonia is Rabbi Elijah, who
established the Torah center in Northern France, having studied extensively under Rabbi
Hai in Babylon and having made several pilgrimages to the Holy Land.332 The geonim were
greatly respected in Germany and the rest of Christian Europe, and as their views, which
were radically different than those of the European community in practice, became better
known, had Rabbeinu Gershom not clarified the matter once and for all, their opinions
might otherwise have caused quite a stir. .A few scholars, like A.N.Z. Roth,"' note that
for any of the above mentioned reasons, or simply just because, there may even already
have been German Jews who themselves actually became bigamists, and whose viewpoint
Rabbeinu Gershom now felt he practically needed to stand up to and protest against. As
mentioned above, however, there is no internal (Ashkenazic) evidence for this type of
practice in the quite considerable extant literature from the Jewish community of that time
period.334 Falk notes that the position of women in Jewry had changed for the better. They
were now accorded more respect, as evidenced by the higher dowries they brought their
husbands; the higher level of compensation those husbands agreed to in their marriage

330 SIMON EPPENSTEIN, ABRAHAM MAIMUNI, SEIN LEBEN UND SEINE SCHRIFTEN (1914), quoted in GROSSMAN,
PIOUS AND REBELLIOUS, supra note 270, at 73; see also Avraham Grossman, The Historical Background to the
Ordinances on Family Affairs Attributed to Rabbenu Gershom Me'or ha-Golah ("The Light of the Exile"), in
JEWISH HIsToRY: ESSAYS IN HONOUR OF CHIMEN ABRAMSKY 3, 7-8 (Ada Rapoport-Albert & Steven J. Zipperstein
eds., 1988). Roth relies on a shaky foundation to support his claims. Roth, however, points out that it is
difficult to imagine that Rabbeinu Gershom instituted the ban on polygamy in order to break apart already
existing polygamous marriages of Sephardic migrants to Germany, or to prevent the daughters of Germany's
monogamous society from become second wives to Sephardic Jews, or to prevent polygamous marriages
amongst Sephardic immigrants.

331 BARON, supra note 176, quoted in GROSSMAN, PIOUS AND REBELLIOUS, supra note 270, at 73.

332 SeeAVRAHAM GROSSMAN, CHACHMEIASHKENAZ HARISHONIM 56 (1988) [hereinafter GROSSMAN, CHACHMEI].

333 A.N.Z. Roth, in MEKHARIM BE-HOKMAT YISRAEL LE-ZIKHRO SHEL Y.M. GUTrMAN 110-25 (1946), quoted
in GROSSMAN, PIOUS AND REBELLIOUS, supra note 270, at 73.

334 The evidence Roth points to is an inference from an external Sephardic responsa from Maimonides,
(infra note 344 and accompanying text), discussing a polygamous element from the French and Germanic
lands.

298 26.2



COLUMBIA JOURNAL OF GENDER AND LAw

contracts to secure against the event of death or divorce; and the fact that they tended to run
all domestic and business affairs in their husbands' often long absences. 3

1 We even have
evidence of women conducting negotiations with other Jewish and Gentile merchants, as
well as feudal princes.136 Given their status in society, people now thought it unjust that
the "mainstay of the house"337 should have to share her privileges with a co-wife.33 8 Rabbi
Nissim of Gerona (the Ran) suggests that Rabbeinu Gershom's concern in imposing the
ban may not have been only the welfare of the women, but also that of the men, and of
overall domestic harmony: "[P]erhaps this ban was intended, not only for the benefit of the
women, but also for that of the men, so that they will not bring conflict into their homes."33

1

Grossman himself believes that the main motivation and impetus for the decree was
the economic activity of German Jews during Rabbeinu Gershom's lifetime. Many were
engaged in international trade and stayed for lengthy periods of time in remote lands,
including predominantly Muslim countries. 34 0 They are mentioned frequently in the
responsa of Rabbi Gershom and of his student, Judah HaCohen.3 4

1 Explicit testimony of
the hardships and burden this placed on the Ashkenazic Jewish family at that time can be
seen in the edict of Rabbenu Tam (Rabbi Jacob ben Meir) from the mid-twelfth century,
prohibiting Jewish traders from being away from home for more than a year and a half, and
requiring them to remain at home for at least half a year upon returning from a journey.3 42

The reality that husbands did not always hurry back can be seen in (among other sources)
the responsa of the Spanish sages and the Geniza sources; it is hardly surprising then that
some men chose to marry second wives while they were away.3 4 3 They would then return
home after either divorcing or abandoning their new wives. Maimonides' edict, issued in

335 See GROSSMAN, PIOUS AND REBELLIOUS, supra note 270, at 14.

336 Id.

337 See BABYLONIAN TALMUD, Sanhedrin 22a-b.

338 FALK, JEWISH MATRIMONIAL LAW, supra note 92, at 25-26.

339 Teshuvot HaRan 48, quoted in GROSSMAN, PIOUS AND REBELLIOUS, supra note 270, at 90.

340 See IRVING A. AGus, THE HEROIc AGE OF FRANCO-GERMAN JEWRY 23-77 (1969); 1-2. IRVING A. AGUS,
URBAN CIVILIZATION IN PRE-CRUSADE EUROPE (1965).

341 See GROSSMAN, CHACHMEI, supra note 332, at 151-58, 195-210 (discussing Rabbi Judah HaCohen's
response); Rabbeinu Gershom, Teshuvot RaGmah 46-52.

342 Edict of Rabbenu Tam Concerning Absentee Husbands, translated in ELLIOT N. DORFF & ARTHUR IRWIN

RoSETr, A LIVING TREE: THE ROOTS AND GROWTH OF JEWISH LAW 418-19 (1988); see also FINKELSTEIN, supra note
115, at 140-41.

343 See Rabbi Isaac Alfasi, Responsa ofRif 28, 67, 185.

26.2 299



COLUMBIA JOURNAL OF GENDER AND LAW

Egypt during the twelfth century, bears directly on this point:

That Maimonides enacted edicts on behalf of the welfare of Jewish women;
namely: that no woman be married to a foreign Jew, who is not from the
community of Egypt, unless he brings proof that he is not married, or takes
an oath to this effect on a Pentateuch. And any foreign man who married
a woman here and wished to go out to another country is not allowed to
leave, even if his wife agrees to this, until he writes her a (conditional)
divorce and gives it to her .... 4

The historical reality of shifty businessmen, combined with the wealth and power of
the Jewish community at large and the desire of fathers to protect both their daughters
and their dowries, along with the rising social status of Jewish women in this society, all
contributed to the coming of this tipping point in Jewish family law.3 45

Another interesting point to consider in relation to the Jewish development of formal
legislation against polygamous practice is the development of the Canon law itself. As
early as 326 C.E., the Catholic Church banned both polygamy and concubinage.3 46 In
Germany in the ninth century, however, it became common practice for Christian men to
take a concubine. Church authorities warned men to put an end to this practice, but not
by divorcing their wives. Falk claims that even though Jews were no longer practicing
polygamy, they were witnesses to these debates about concubines, and these developments
were yet another prompt for women to demand equality,347 and then for Rabbeinu Gershom
to issue his ban.3 48 At a church synod held in Rome in 826, the ban on polygamy was once
more promulgated, and the prohibition soon made its way into the legislation of Emperor

344 Maimonides, Teshuvot HaRambain 2:347. Responsa from Alfasi indicate a similar milieu.

345 The fact that we find this phenomenon mentioned in the Sephardic responsa and not the Ashkenazi
literature is to be expected; obviously the problem that needed to be solved was in the country where the
Ashkenazi men had married and left the second wife. See GROSSMAN, PIOUS AND REBELLIOUS, supra note 270,
at 13-14.

346 See ZE'Ev W. FALK, Nisu'IN VE-GERUSHIN: Ti KUNIM BE-FINE HA-MISHPAHAH BE-YAHADUT

[MARRIAGE AND DIVORCE: REFORMS IN THE FAMILY LIFE OF GERMAN-FRENCH JEWRY] (1961) [hereinafter FALK,
MARRIAGE AND DIVORCE].

347 Or, more likely, for wealthy fathers to do so on behalf of their daughters.

348 See Asher ben Yehiel, Responsa HaRosh 42:1 (indicating that the basic purpose of the ban of Rabbeinu
Gershom was to create a better balance of rights between the husband and the wife).

300 26.2



COLUMBIA JOURNAL OF GENDER AND LAW

Lothair.349 Shortly thereafter, Pope Nicholas I used Tertullian's exhortations in his own
writings to warn against bigamy. In the tenth century, Regino of Prum complained not only
of bigamy but of general licentiousness, including the practice of men divorcing their first
wives without justification in order to wed another (more echoes of Rabbeinu Gershom's
first decree). 3

5
0 In his book, compiled around the year 1020, Buchard of Worms enumerates

all the laws of the Church enacted up to that date, including regulations against bigamy and
licentiousness in general.3 1'

Despite the fact that ancient authorities had already flatly forbidden it, in 1274 the
medieval canonists adopted and repeated the ban against polygamy, including it in the
long list of forbidden sexual unions; polygamy in this sense was a mortal sin and a serious
crime, and, if done with knowledge and intent, once convicted by a church court, such a
polygamist faced a temporary ban from the Eucharist, and, interestingly enough, a ban
or excommunication in serious cases. England passed a parallel statute in 1276, as did
many other nations within a few years, including, perhaps, in reality, the Jewish nation.352

On November 11, 1563, the Council of Trent still felt the need to condemn anyone who
claimed: "It is lawful for Christians to have several wives at the same time, and that it is
not forbidden by any divine law,""' perhaps reflecting the slow and gradual acceptance
over time of the Jewish ban against polygamy. Tremors of all these movements were
undoubtedly felt by the Christians' Jewish neighbors, and surely factored into the subtle
calculus of the shift away from polygamy towards monogamy.

X. The Limits of the Ban

The various sources that refer to Rabbeinu Gershom's decree differ in regard to its
intended duration. Many authorities held that the ban was heavily restricted, and was

349 FALK, MARRIAGE AND DIVORCE, supra note 346, at 23.

350 Id. at 24.

351 While there is no direct evidence that even a little "fringe" Christian polygamy was actually being
practiced at the time that Rabbeinu Gershom's edict is said to have been enacted, the arrival of the eleventh
century did bring about a movement for religious reforms in general, which included the Reformist Popes such
as Gregory VII removing priests who did not uphold their vows of abstinence, along with reforms against
concubinage, a practice that was still somewhat popular. No doubt tremors of these movements were felt across
religious boundaries. Id. at 25.

352 See EXPERT REPORT PREPARED FOR THE ATTORNEY GENERAL OF CANADA, IN THE MATTER OF THE CONSTITUTIONAL
QUESTION AcT, R.S.B.C. 1986, c. 68, 67-68 (1986).

353 William B. Kessel, Address at the Ariz. Dist. Pastoral Conference First Lutheran Church (May 5-6,
1998).

26.2 301



COLUMBIA JOURNAL OF GENDER AND LAW

set to expire at the end of the fifth millennium, in the year 5000 of the Jewish calendar,
corresponding to 1240 C.E.354 Others held that the ban was not at all limited in duration."'
Regardless of whether it was originally set to expire in 1240 C.E. or any other time, it
remained in force after such time (likely due to its overall acceptance and reflection of
society), and later generations have continued to accept it as absolutely binding.356 Thus,
wherever the ban was accepted, it now appears to have the force and status of law for
all time.357 This seems to be based, if not entirely on then at least in accordance with, a
responsa of the Maharshal, a leading authority in Poland in the thirteenth century. In 1240,
he wrote a responsum in which he noted:

Most of the decrees of Rabbenu Gershom Me'or Hagolah were formulated
with no mention of time; moreover, with respect to the decree on bigamy,
he wrote that this can only be permitted with the consent of one hundred
sages ... and even then, they shall not permit it unless they see good reason
for doing so. How can there be good reason, changing for the better, when,
on the contrary, due to our many sins each succeeding generation is more

354 Solomon ibn Aderet (1235-1310), a Spanish sage, who claimed to have heard this from the French
scholars. The statement is not found in his written responsa, but is quoted by Rabbi Joseph Colon. Rashba
did say that the reason behind the decree was because of licentious men who abused their wives. Shlomo
Zavlin Havlin, The Takanot of Rabbenu Gershom Me'or Hagolah in Matters of Family Law in Spain and
Provence, in 2 SHENATON HA-MISHPAT HA'IVRI 230-31 (1975); see also FINKELSTEIN, supra note 115, at 29,
142-43 (contending that because in all of the French and German discussions of this ordinance there is no such
reference, it must be mistaken). Epstein, on the other hand, points out that even though "we have not even the
testimony of R. Solomon himself, but of a later scholar quoting him ... legally, because of the great weight of
Aderet in Jewish law, even such uncertain testimony given in his name is granted full authority, and the herein
is regarded as having lesser binding force in law since the end of the fifth millennium." See EPSTEIN, MARRIAGE

LAWS, supra note 93, at 26, quoted in Frisch, supra note 36, at 134 n.409. In response to the question of how a
tradition of a limited time could have been preserved only amongst the Sephardi rabbis and not the Ashenazi
ones, Rabbi Caro suggests that perhaps they knew about it, but deliberately concealed it because of their wish
to continue the ban. See GROSSMAN, PIOUS AND REBELLIOUS, supra note 270, at 78.

355 Asher ben Yehiel (1250-1327), a leader of German Jewry who settled in Spain in 1303, said that the
takkanot of Rabbeinu Gershom were "permanent and deeply rooted, as if they had been given on Sinai." See
BARON, supra note 176, at 6:136-137.

356 Ben-Zion Schereschewsky & Menachem Elon, Bigamy and Polygamy, in 3 ENCYCLOPAEDIA JUDAICA 691-
94 (Michael Berenbaum & Fred Skolnik eds., 2d ed., 2008); see Responsa Rosh 43:8; Shulchan Aruch, Even
HaEzer 1:10; Arukh ha-Shulhan, Even HaEzar 1:23; Ozar ha-Posekim, Even HaEzer 1:76.

357 See Joseph Caro, Shulchan Aruch, Even HaEzer 1:10. There is a debate among scholars as to whether
the original ban contained a clause allowing for its suspension in exceptional cases, or whether that clause was
attached to the ban at a later time. See FINKELSTEIN, supra note 280, at 142-43.

302 26.2



COLUMBIA JOURNAL OF GENDER AND LAw

lowly and worsens from day to day?"'8

Maharshal also noted that the conditions which gave rise to the ban in the first place in the
fifth millennium still applied equally in his day in the sixth, and that eminent Ashkenazi
rabbis had upheld the full validity and legal weight of the ban even after its supposed
expiration date.359

An interesting in-between opinion is given by the prominent sixteenth-century Polish
Ashkenazic authority Rabbi Moses Isserles in his Darkhei Moshe: he claims that the edict
had lapsed but the prohibition was still valid, as a matter of minhag, or prevailing custom.360

As noted above, the ban against polygyny does not include a clause that annuls the second
marriage of a man who breaks the law by disregarding it. Such a marriage would still be
legally valid, 6' although since it is a prohibited marriage, the first wife could either require
the court to compel her husband to divorce the second wife or ask the court to order the
husband to give her a divorce. 362

In regard to the conflict between positive commandments and the cherem, there were
two main issues. First, in terms of what to do with a levirate marriage requirement that
would involve a married brother taking on a second wife (i.e., his brother's widow), this
was not really a problem in France, where chalitza was already the preferred method even
in cases that did not involve polygyny. 6

1 In Germany, however, where levirate marriage
was still practiced,'" authorities were split on this issue and remained so for quite some
time.3 65 Rabbi Jacob ben Moses Moelin (1360-1427) allowed a man to take a second wife

358 Solomon Luria, Responsa Maharshal 14, quoted in Elimelech Westreich, The Ban on Polygamy in
Polish Rabbinic Thought, 10 POLN 69 (1997).

359 Id.

360 Moses Isserles, Darkhei Moshe, Tur, Even HaEzer 1:10. The Ritva (Rabbi Yom Tov Asevilli), cited in
Rabbi Joseph Caro, Beit Yosef 1:8 (1559) (a commentary on Tur) considers the prohibition to have shifted from
public to private law, which would again allow polygamy based upon the wife's consent.

361 Moses Isserles, Darkhei Moshe, Tur, Even HaEzer 44.

362 Abraham Tzvi Hirsch ben Jacob, Pitchei Teshuva 5 (on Joseph Caro, Shulchan Aruch, Even HaEzer
154). This sounds a lot like Ray Ammi's ancient ruling. See also Solomon Luria, Responsa Maharshal 14.

363 See FINKELSTEIN, supra note 280, at 27.

364 Rabbi Judah HaCohen, a disciple of Rabbeinu Gershom himself, ruled that levirate marriage is permitted
but is not to be enforced against the woman's will. GROSSMAN, PIOUS AND REBELLIOUS, supra note 270, at 93.

365 See EPSTEIN, MARRIAGE LAWS, supra note 93, at 26-27.

26.2 303



304 COLUMBIA JOURNAL OF GENDER AND LAW 26.2

in such a case.36 This was also the practice in the Spanish communities that did not accept
the ban for themselves, but did enforce it on German Jewish immigrants. 367 In contrast, the
sixteenth century Italian authority Rabbi Judah Minz held that the cherem overrides the
commandment of levirate marriage. 68 Similarly, authorities were divided on the question
of whether or not the ban against polygyny should be suspended in order to fulfill the duty
of procreation in the case of a barren wife, with some approving, 69 and others, including
Rabbi Minz, holding that the ban should still apply even if the result was that the husband
would remain childless. 37 0 Two German authorities even quote responsa of Rabbeinu
Gershom himself permitting a second marriage under these circumstances, although others
are quick to respond that those may have been from before the ban."' The Maharshal writes
that conduct unbefitting a wife, such as licentiousness or immodest behavior, constituted
just cause for waiving the ban,372 but for divorce suits based on anything but the wife's
behavior (including, but not limited to, levirate marriage, barrenness, or madness), the ban
was upheld.3 3 Even in those cases where cause was found for waiving the ban, however,
the preference was to waive the enactment forbidding a man to divorce his wife unilaterally,
as opposed to the enactment against polygamy.37 4

366 Yaakov Moelin, Sefer Maharil HaHadashot, Hilchot Chalitza 4 (Shklov ed. 1796); Rabbi Eliezer ben
Joel haLevi, quoted in Solomon Luria, Responsa 188; Isaac Or Zarua 1:638, 739; Meir ben Baruch, Responsa
866. As attested to in the Bayit Chadash of Rabbi Joel Sirkis, (commentary on TUR, Even HaEzer 119), this
position was accepted in actual practice by the rabbis of Frankfurt, Ashkenaz, and Russia. In regard to a
woman who could not give birth, however, Rabbi Moelin ruled differently in practice. See Responsa Maharil
HaHadashot 202; see also Westreich, supra note 358, at 74-75.

367 According to Isaac Halevi Herzog, Otzar HaPoskin, Even HaEzer 1:75, if a man goes from a place
where the cherein of Rabbeinu Gershom is in effect to a place where it is not in effect, the cheren "goes on the
head" of the individual. See Frisch, supra note 36, at 138.

368 RABBI JUDAH MINZ, SEFER SHE'ELOT U'TESHUVOT 10 (Krakow ed. 1882). According to Rabbi Minz, the
cherem has the force of a Talmudic takkanah. See Frisch, supra note 36, at 135 n.430.

369 See EPSTEIN, MARRIAGE LAWS, supra note 93, at 27. Responsa of Rabbi Meir of Rothenburg quote this in
the name of Rabbi Gershom himself. See also Westreich, supra note 358, at 73.

370 MINZ, supra note 368, at 10; see also Joseph Caro, Beit Yosef (1559); Rabbi Ishtori Haparchi, Kaflor
VaFerach 178 (1322); Joseph Ibn Habib, Nininuke Yosef

371 See Rabbi Simon ben Tzemach Duran, Responsa Tasbez 470; Rabbi Ishtori Haparchi, Kaftor VaFerach
178, 782 (1322), quoted in Finkelstein, supra note 280, at 28.

372 Presumably since it has been put in place for her protection. See Westreich, supra note 358, at 67.

373 FINKELSTEIN, supra note 115, at 26,

374 Rabbi Meir of Rothenburg, Responsa of Maharain 946, quoted in Westreich, supra note 358, at 67; see
also Responsa Maharam, Even HaEzer 245, 272, 273.



COLUMBIA JOURNAL OF GENDER AND LAw

One situation in which it was quickly decided that the ban did not apply was where a
wife accepted baptism and left the husband's home. It was assumed without question that
the ordinance protecting the Jewish home against polygamy had never been intended for
this purpose, and after it could be established that this was really a voluntary abandonment
(as opposed to an involuntary captivity), the husband would be allowed to marry a second
wife."' Later, the custom became for the man to divorce his wife unilaterally though a
court-appointed agent,'76 again reflecting the preference to suspend the ban against coerced
divorce before that of polygamy."

Recognizing that sometimes even the suspension of the other enactment would not
help, 7 8 and that these and other emergency cases might be at odds with the ban, the early
authorities provided for the possibility of suspending it in special cases, by joint decree of
a hundred rabbis from at least three territorial divisions.379 When utilizing this mechanism,
the husband must also leave the wife a valid bill of divorce and her full ketubah payment
in escrow with the court.3 s0 Scholars are unsure if this dispensation was so early as to
actually be part of the original ban itselfP' or was simply a later addition made by either
Rabbeinu Gershom or others.3 82 Regardless, Rema's conception of the ban, as still binding
but now based on custom and not law, leads to the following statement in his commentary:
"In any event, it seems to me that at the present time one does not need the approval of a

375 FINKELSTEIN, supra note 115, at 26 (quoting Responsa Teshuvot Hakine Zarfat ve-Lotir I lb).

376 This is almost never allowed; the agent normally needs to be appointed by the woman herself. Here
though, the rabbis relied on another Talmudic principle: one is rightfully allowed to assume that every rational
person is a self-interested actor, and that what they would want if they were here, or if they had the capacity to
consent, would be anything that is to their benefit. Since in this atypical case getting divorced would save her
from the terrible sin of adultery, it was considered to be solely in the wife's benefit.

377 FINKELSTEIN, supra note 115, at 26 (quoting Israel Isserlein, Pesakin U-Khetavim 246).

378 E.g., when the woman did not have the requisite capacity to accept a divorce.

379 The circumstances are usually those in which a woman is obligated to take a get but cannot or will not
for some reason. See Joseph Caro, Shulchan Aruch, Even HaEzer 1:10, 115, 119:6. The enactment is usually
attributed to Rabbeinu Tam (1100-1171) although some, like Finkelstein, believe that it is earlier, perhaps part
of or a product of the generation immediately following the original ban. See FINKELSTEIN, supra note 115, at 28.

380 See JOEL SIRKIs, BAYIT CHADASH, TUR, Even HaEzer 1; Westreich, supra note 358, at 80-83; see also
FALK, MARRIAGE AND DIVORCE, supra note 346, at 28. "The Frankish Church also permitted bigamy when one
of the partners had been abroad for an extended period," or under other extenuating circumstances. See, e.g.,
the decision of the Synod of Compiegne, from the year 757. Id. at 28 n. 1.

381 See BARON, supra note 176, at 6:394.

382 See FALK, MARRIAGE AND DIVORCE, supra note 346, at 29 n.2, for a discussion of the matter.

26.2 305



COLUMBIA JOURNAL OF GENDER AND LAW

hundred rabbis to waive it, since the period of the edict has already elapsed and no waiver
is necessary at all."11 In respect to the Shulchan Aruch's ruling, that the ban on polygamy
did not apply in the case of levirate marriage, Rema adds: "The same rule applies in every
case where fulfillment of a precept is held in abeyance, as in the case of a man who has
lived with his wife for ten years, and she has not given birth . . . but there are some who
disagree and hold that the ban of Rabbeinu Gershom is to be enforced even in the case of a
precept and even in the case of levirate marriage."38 4 In regard to a case that did not directly
involve a commandment, such as insanity or unwillingness on the part of the wife to accept
a valid divorce, Rema writes that, "in those cases . . . one should rule leniently and permit
the husband to marry another woman."385

Despite the fact that certain kinks needed to be worked out, over time Ashkenazic
Jewry accepted the Jewish ban against polygamy as binding for all time, at least in those
communities where polygyny was forbidden by the dominant religion, Christianity, and
was therefore forbidden by government law.38 6 According to Epstein, by the thirteenth
century, although the ban had still not been fully accepted, its existence was already enough
to create a legal presumption that the average marriage was a contract for monogamy.387

While it is true that we do have testimony from France that in that same time period (the
thirteenth century) polygamy was still being practiced on the fringes, 8 and the same is true
of Italy in the first part of the thirteenth century389 (even until the sixteenth century, Italian
rabbis permitted a childless husband to marry a second wife without formally suspending
the ban, even though it had already been accepted, 3 without feeling the need to make use
of the formal procedures for getting around it. Interestingly enough though, the permission

383 Moses Isserles, Darkhei Moshe, Tur, Even HaEzer 1:10. In practice though the courts do try to obtain
the Heter Meah Rabbanim (permit of 100 rabbis).

384 Moses Isserles, HaMapah, Shulchan Aruch, Even HaEzer 1:10.

385 Id. This was the recorded opinion of Rema's teacher, Rabbi Shalom Shakhna. See Westreich, supra note
358, at 75-76.

386 Bigamy and Polygamy, in 3 ENCYCLOPAEDIA JUDAICA 691-94.

387 EPSTEIN, MARRIAGE LAws, supra note 93, at 30 (citing Shilte HaGiborim ad Alfasi to Yevamot Ch. 6; Or
Zarua I, 181a).

388 Id. (citing Joseph Caro, Beit Yosef(1559)).

389 Id. (citing JACOB ANATOLI, MALMAD HATALMIDIM 101b (Lyck ed. 1866)).

390 Id. (citing Rabbi Meir Padua Responsa 141 and The Takkanot of the Ferrara (1554), quoted in ISRAEL
ABRAHAMS, JEWISH LIFE IN THE MIDDLE AGES 71 (1896)).

306 26.2



COLUMBIA JOURNAL OF GENDER AND LAW

of the rabbis was not enough; the Pope had to grant it as wel 3 9 1), still, for the most part,
soon after the decree of Rabbeinu Gershom had caught on, in that part of the Jewish world
polygamy was gone for good.

In those countries where polygamy was permitted by the dominant religion of Islam,
the.ban was not officially adopted.392 Maimonides never even mentions the cherem of
Rabbeinu Gershom, although his legal code, the Mishneh Torah, contains numerous
references to polygyny.3 93 In Hilchot Ishut, 14:3, Maimonides states:

A man may marry several wives, even one hundred, either at the same time
or one after the other, and his wife may not prevent him, provided he can
supply each one with the food, clothing, and conjugal rights that are due
to her. But he may not compel them to dwell in one courtyard, but rather
each one [must be allowed to reside] by herself.

Practically speaking, these requirements mean that it would only have been possible for
men who were extremely affluent to practice polygamy and afford to have more than one
wife. In addition, following his discussion of conjugal rights in the very next paragraph,
Maimonides offers a further limitation on the practice of polygamy: "Therefore the sages
have commanded [in Babylonian Talmud Yevamot 44a] that a man shall not marry more
than four wives, even if he has a lot of money, so that he can provide them [each wife]
with conjugal relations once a month." 394 It is interesting of course to note that Islam also
allows a man to marry up to four wives simultaneously, provided that he can support them.
Each is entitled to a separate dwelling and an equal portion of the husband's time and
companionship.395

Although the ban never took hold in Spain and Provence, from the late thirteenth century
and on, beginning with Rabbi Shlomo ben Aderet (Rashba), the rabbis there acknowledged

391 EPSTEIN, THE JEWISH MARRIAGE CONTRACT, supra note 103, at 30 (citing LEOPOLD Low, GESAMMELTE
SCHRIFTEN 74(1893)).

392 Schereschewsky & Menachem Elon, supra note 356. Islam allows polygamy, with Koranic sura 4:3
providing that a man may have up to four wives, assuming that he can deal justly with the co-wives. See M.
Hashim Kamali, Islamic Law: Personal Law, in 7 THE ENCYCLOPEDIA OF RELIGION 4705, 4705-12 (Lindsay
Jones ed., 2d ed., 2007).

393 See, e.g., Maimonides,Mishneh Torah, Hilchot Ishut 6:14, 6:15, 17:1.

394 Id. at 14:4.

395 See M. Hashim Kamali, supra note 392.

26.2 307



COLUMBIA JOURNAL OF GENDER AND LAw

that it was in fact binding for the Ashkenazi Jews who had moved into the region.196 He
did, however, view the ban as much less radical in its restructuring of family law, as just
a temporary attempt to address a problem of the day, and make sure that husbands did not
arbitrarily hurt their wives. As such, not only did he maintain that the ban was of limited
duration, 97 in any case where the husband had legitimate halakhic grounds on which to
contemplate marrying a second wife, whether it was her fault or not, Rashba maintained
that the ban did not apply.98 When Spanish Jewry first began arriving in Ashkenazi lands
in large numbers (after the expulsion from Spain in 1492), Rashba's view was introduced
to Ashkenazic Jewry by Rabbi Joseph Colon (Maharik). 99

As we discussed however, despite the fact that Jewish communities in Islamic countries
did not ever formally adopt the cherem, it was still probably never very common to have
more than one wife. 400 As we have seen, in some communities women included explicit
stipulations in their marriage contracts prohibiting the husband from taking a second wife
without the first wife's consent or the permission of a rabbinic court.4 0

1 The Cairo Geniza
does contain some legal documents and letters reporting or referencing cases of bigamy,
although in general the reasons given were the same as cases in which such marriages
may even have been allowed under the Ashkenazic exceptions to the rule, i.e., in cases
where the first wife was barren for ten years, or of levirate marriage, or where the first wife
was insane and could not legally accept a divorce.402 There is, however, evidence of some

396 Westreich, supra note 358, at 67 (quoting Havlin, supra note 354, at 231).

397 Id.

398 Id.

399 Rabbi Joseph Colon, Responsa Maharik 101. Rabbi Joseph Caro, the Sephardic author of the Shulchan
Aruch, enthusiastically adopted it, ruling that the ban had expired, and that even an Ashkenazi Jew could marry
multiple women, except in Ashkenazi lands where the restriction still held on the strength ofcustom. In response
to the question of how a tradition of a limited time could have been preserved only amongst the Sephardi rabbis
and not the Ashenazi ones, Rabbi Caro suggests that perhaps they knew about it, but deliberately concealed it
because of their wish to continue the ban. See GROSSMAN, PIOUS AND REBELLIOUs, supra note 270, at 78.

400 See RACHEL BIALE, WOMEN AND JEWISH LAW: AN ExPLORATION OF WOMEN'S ISSUES IN HALAKHIC SOURCES

51, 205 (1984); see also 12 ENCYCLOPAEDIA JUDAICA 259-60 (2d ed. 2007); EPSTEIN, supra note 103, at 31.

401 Two such documents were found in the Cairo Geniza. See GOITEIN, MEDITERRANEAN, supra note 268, at
143-44. A similar contract is referenced in a responsum by the Sephardic authority Rabbi David Ben Solomon
ibn Abi Zimra (1479-1573). In that case, in addition to signing the document the husband took an oath to the
effect that he would not take a second wife at the time of the signing of the ketubah. See RABBI DAVID BEN

SOLOMON IBN Am ZIMRA SHE'ELOT U'TESHUVOT RADBAZ 221 (1967).

402 GOITEIN, MEDITERRANEAN, supra note 268, at 206, cited in Frisch, supra note 36, at 141.

308 26.2



COLUMBIA JOURNAL OF GENDER AND LAw

local ordinances prohibiting the taking of a second wife, not as strict or as comprehensive
as Rabbeinu Gershom's ban, but still perhaps influenced by it.403 Thus, while polygamy
was not officially outlawed, it seems that it was only practiced rarely, perhaps due to an
internal moral aversion that had been growing throughout the entire Jewish world in prior
centuries, even in Talmudic times when and in places where polygamy was still widely
permitted.4 04 The main difference between Jewish communities in Christian versus Islamic
lands seems to have been the objective versus subjective nature of the disapproval of
polygamy, manifested in whether or not there was a choice for the first wife to consent to
the husband taking a second wife in communities in which the ban was not accepted.

It is interesting to note that despite the fact that polygamy was more accepted in Islamic
lands, this did not make for a more pleasant polygamous household. A document written
by a young son of a polygamous man who had immigrated from Spain to Egypt talks
about how happy he was when his half-siblings (the children of the second wife, his own
mother's co-wife) died, and in it he also prays that the second wife herself should die as
soon as possible.4 05 The Rashba in one responsa notes that although people do have second
wives, he has never heard of a single family in which such a marriage was successful. 406

A generation later, interlocutors writing questions to the Rosh described polygamous
families as "filled with arguments, resentment, and divorce," 407 and a generation after that
the Rivash noted that, "there is no one who brings dispute into his home like one who takes
another wife into his home."408

We should take a step back here and revisit the issue of concubinage in the Jewish
world. The Talmud made a concerted effort to regulate the concubine; she was seen as
possessing an intermediate status that did not have all the rights of a wife but was not to

403 See GROSSMAN, PIous AND REBELLIOUS, supra note 270, at 87-88.

404 Havlin and Assis do present evidence of several cases of bigamy even in Christian Spain, despite its
official illegality. They note that these cases tend to be from wealthy upper class families, because in addition
to the expensive practice of polygamy itself, one first had to pay for permission from the crown. See GROSSMAN,

PIOUS AND REBELLIOuS, supra note 270, at 84-87 (quoting Havlin and Assis).

405 From the Cairo Genizah, quoted in GROSSMAN, PIOUS AND REBELLIOUS, supra note 270, at 89. The boy
also hinted at the fact that the second wife taunted his mother, and the general tone points to an atmosphere of
intense animosity and tension. The harsh picture of biblical polygamy, in the homes of the patriarchs, and of
Elkanah and David, returns here in full force. Id.

406 Id. at 85, 90.

407 Id. at 90.

408 Id.

26.2 309



COLUMBIA JOURNAL OF GENDER AND LAW

be considered like a prostitute.4 09 Already in Talmudic times, the manner of discussion
as well as the divergence of opinions and traditions indicate that concubinage was no
longer in practice.410 Maimonides protested vigorously against concubinage, and sought to
eliminate it by claiming that it was a right limited to the kings of Israel, not the common
man. 4 1

1 While some authorities disagreed but prohibited it anyway,412 other authorities
permitted it,413 some noting that it was legal but warned against the moral evils involved. 4 14

There is little evidence of any actual Jewish concubinage in the Middle Ages,4
1
5 and the

understanding was that even the rabbinic authorities who permitted it did not consider it
ideal.4 16 Eventually it came to be universally prohibited, and is thought of as connected to if
not part of the ban.4 17 What we see in the slow erasure of the practice of concubinage is just
another small step on the march toward companionate monogamy in the Jewish marriage
tradition.4' 8

409 In the Babylonian tradition she was seen as having neither kiddushin (official marriage status) nor a
ketubah. See BABYLONIAN TALMUD, Sanhedrin 21a. In the Jerusalem tradition she was of slightly higher status,
possessing a ketubah but without kiddushin. See JERUSALEM TALMUD, Ketubot 5:2, 29b.

410 See Lowy, supra note 149, at 117. He also quoted the Midrashic story of the king furtively visiting his
concubine to make the point that it was considered shameful to have such an arrangement. Id.

411 Maimonides, Mishneh Torah, Hilchot Melachim 4:4.

412 See Tur and Shulchan Aruch, Even HaEzer 26:1

413 Raavad, Mishneh Torah Hilchot Ishut 1:4; Responsa of Rashba 284 (traditionally attributed to
Nahmanides); Meiri, Beis Habechira, BABYLONIAN TALMUD, Sanhedrin 21 a (seeming to agree with the definition
of the Ravaad); see MARRIAGE AND ITS OBSTACLES, supra note 115, at 62.

414 Responsa ofRashba 284 (traditionally attributed to Nahmanides); Commentary to Genesis 25:6, cited in
MARRIAGE AND ITS OBSTACLES, supra note 115, at 62.

415 Anson Rainey et al., Concubine, in 5 ENCYCLOPAEDIA JUDAICA 133-36 (Michael Berenbaum & Fred
Skolnik eds., 2d ed. 2007).

416 MARRIAGE AND ITS OBSTACLES, supra note 115, at 62.

417 See Rabbi David Ben Solomon ibn Abi Zimra, Responsa Radbaz 4:22,7:33. "At the present time a woman
is permitted to no man except through kiddushin, huppah, sheva berakhot, and ketubah. This applies even more
in the case of a married man ... both for the protection of his wife and because his taking a concubine-since
he is aware that he must not take an additional wife-can only be for the purpose of prostituting, and this is
forbidden in the opinion of all the posekim." Responsa ofRashba 4:314; Otzer HaPoskin, Even HaEzer I n. 4;
26, n. 5 (quoted in Rainey et al., supra note 415).

418 Some assume that Maimonides' opinion and rejection of the practice might have been influenced by the
fact that in day the Sunni Muslims prohibited the practice of mut'ah, or temporary marriage. In this view, his
opinion, like perhaps that of Rabbeinu Gershom, was also one affected by and effecting public policy.

310 26.2



COLUMBIA JOURNAL OF GENDER AND LAw

XI. The Story Behind the Story

A careful reading of the Shulchan Aruch finds that, even if it was only in the background
of the discussions when the ban against polygamy was being contemplated, the real reason
why the ban has stayed and stuck on, first amongst the Ashkenazim and then over the
centuries across all of Jewry, so that by the year 2013 anything but monogamy in Judaism is
unheard of, is simply because anything but monogamy does not produce the kind of loving,
intimate, companionate marriage that the Rabbis wanted to promote in order to inspire
marital happiness, social growth, child development, and economic enhancement.4 19 This
development can be seen in the conversational subtext between the author of the Shulchan
Aruch, Rabbi Joseph Caro, a Sephardic Jew living at a time before the ban became really
normative in Sephardic lands, and the commentary of Rabbi Moshe Isserles ofAshkenazic
descent and leadership.

The Laws of Marriage open up with the following discussion: the Shulchaun Aruch
writes, "Every man is obligated to marry a woman in order to reproduce . . . "420 (Note
the focus on the legal imperative), to which the Rema responds with an exposition on the
virtues of the marital relationship: "Anyone who is without a wife lives without blessing,
and without Torah, and is not called a person. Once one marries a woman, all of one's sins
are forgiven, as the verse states, 'one who finds a wife finds goodness, and obtains the favor
of God."' 42'

The same subtext plays out just two paragraphs later: Rabbi Caro describes how the
court will force someone who has waited past the age of twenty to get married,422 and Rabbi
Isserles writes that this is not our custom anymore. Rather, even if one doesn't get married
at an age when they should, because they have not found the right person, or even if they
found someone they want to marry but the woman is sterile or too old to have children,
despite the fact that traditional Jewish law would compel the court to force him to marry
someone capable of reproduction so that he could fulfill the Divine command to be fruitful
and multiple, the custom is not to do S0.423

419 See Michael J. Broyde, Jewish Law and the Abandonment of Marriage: Diverse Models of Sexuality
and Reproduction in the Jewish View, and the Return to Monogamy in the Modern Era, in MARRIAGE, SEX, AND
FAMILY IN JUDAISM, supra note 302, 88, 103 [hereinafter Broyde, Diverse Models of Sexuality].

420 Shulchan Aruch, Even HaEzer 1: 1.

421 Rema, supra note 211 (quoting Proverbs 18:22).

422 Shulchan Aruch, Even HaEzer 1:3.

423 Rema, supra note 211.

26.2 311



COLUMBIA JOURNAL OF GENDER AND LAW

Having defended the policy option of companionate marriage based on love and
bringing blessing, as opposed to the more functional marriage Rabbi Caro describes, based
on law and having children, the attempt to codify the monogamous custom is made once
again in the discussion of polygamy. The Shulchan Aruch states, "[a] man may marry many
women, so long as he can support them all ... Rabbi Gershom decreed that one may only
marry one wife at a time . . . but the decree was not accepted in all lands."4 24 To which
Rabbi Isserles adds, "[o]nly in a place where you know that it was not accepted does it not
apply. But ordinarily, it applies everywhere."4 25

Notwithstanding the possibility of polygamy as an option in Jewish law, the Jewish
tradition settled on monogamy as the only option that could really bring those blessings
that Rabbi Isserles described, going so far as to enact strong decrees with weak foundations
against even biblical precepts to enforce this new ideal. 426

CONCLUSION

There really is nothing new under the sun. 427 Whosoever thinks that society today has a
monopoly on the questions surrounding the complex family structure and marital definition
has never studied the Jews of antiquity.

Jewish law, from the perspective of a Jewish law practitioner, is a sometimes-shifting
scale that allows for adaptive modality in changing circumstances. Values are held in
dialectic tension, and there is always enough leeway and flexibility to provide an answer
for literally every situation on this earth. 428 Why was polygamy allowed? Because in some
situations, having it available as a tool or as an option was useful, whether to increase the
number of viable children being born, to feed the needy, for political stability, or for any
other of a number of conceivable reasons.

At some point though, the reality began to change, and society moved away from this
model of male-centric marriage.

424 Even HaEzer 1:9-10.

425 Rema, supra note 211.

426 See Broyde, Diverse Models of Sexuality, supra note 419, at 105.

427 Ecclesiastes 1:9.

428 See MISHNA, Avot 5:22 ("Ben Bag Bag used to say, 'Turn it over, and turn it over, for everything is in
it ... " ).

312 26.2



COLUMBIA JOURNAL OF GENDER AND LAW

For a while, due to circumstances both internal and external to the Jewish community
at large, polygamy remained legal on the books if not in practice. As time went on,
however, more and more factors came to bear on the question of polygamy, most of them
centering around the quite compatible desires to both fit in with European society for better
or for worse, and to create a more equitable and stable Jewish family life, whether by
cutting off the possibility and stemming the flow of unilateral divorces by men, or by
making sure that angry or even just uninterested husbands could not simply marry other
women and abandon their original families, or in general by making sure that people chose
their partners for the right reasons. There was a feeling, stemming from the Babylonian
tradition and demonstrated in the capstone commentary of Rabbi Moshe Isserles, that only
monogamy could really bring the kind of close companionship that a marriage really needs
to be called blessed.

Change this big was slow to come, however. Especially as time passed, and the rabbis of
the Talmud became legends, the idea of drastically rethinking anything in family law must
have seemed more and more daunting and unlikely. To do so would require an authority
figure with tremendously broad shoulders.

A man of such stature arose in the persona of Rabbeinu Gershom, "the Light of the
Exile," and whether it was actually him, or whether he was just the authority figure on
which the ban was eventually hung, the medieval decree against polygamy came to be
known forever by his name.

Once the tipping point was reached, polygamy never really made a comeback. In
contrast to the rabbis of earlier eras, the rabbis of the Middle Ages no longer felt the need
to even nominally cling to their heritage of polygamy, at least in Ashkenazic lands. Perhaps
once the Jews were no longer living under the rule of the Roman Empire, the fear that
national and cultural Jewish identity would be overtaken subsided. 42 9 The Church, with its
divergent and anti-polygamous exegesis, was no longer recognizable as another branch of
Judaism, and sectarian influence in general had also largely died out. Eventually, the ban of
Rabbeinu Gershom made legal what was for most people already likely the practical reality
of the day, except in exceptional cases such as levirate unions and barren wives. Despite
the fact that certain details needed to be worked on and thought about, questions about
how it played out on the fringes should not overshadow the overwhelming success of the
enactment. 430 For the most part, and now forever, polygamy is gone.

429 Frisch, supra note 36, at 148.

430 Especially because, as in all legal material and responsa, it is the fringe cases that tend to get discussed.

26.2 313



COLUMBIA JOURNAL OF GENDER AND LAw

Interestingly, despite the fact that polygamy was very consciously removed (one step
at a time) from the realm of practice, it was never removed from the theoretical discussions
in the study hall, nor was its practice ever retroactively whitewashed or hidden like some
shameful thing in the tradition, even after it was banned. Ashkenazic Jewish polygamy was
simply mounted in its rightful place as a museum piece in the hall of Jewish history, and
life carried on.

A Midrashic teaching, dated roughly from around Rabbeinu Gershom's time, shows
how comfortable Jews were talking about their polygamous ancestral heritage (perhaps
this openness is a vestige of the fierce sectarian pride which led them to keep it so alive
for so long in the academy, or, alternatively, maybe it is a nod to the fact that by the time it
finally happened the ban was really just declaratory; it just goes to show that polygamy was
not a hot-button issue and so was easy to talk about and reference without causing any stir).
The Midrash here has God himself asserting that, at least historically speaking, polygamy
was a good and viable option for Jewish marriage. Exodus Rabbah 1:14, speaking about
Pharaoh's decree to kill all the male Hebrew infants, stated:43

1

If it is a son, you will kill him . . . The Holy One Blessed be He said,
"Whoever gave you [Pharaoh] this counsel is a fool. You should have
killed the females. If there are no females, from where will the men marry
wives? A woman cannot marry two men, but one man can take ten wives,
or a hundred. So, 'the princes of Zoan are idiots, the wisest of Pharaoh's
counselors is a poor counsel,' 43 2 because they gave him this counsel."

In Exodus Rabbah then, polygamy is comfortably right back where it had been for the last
several centuries in practice, and where it has been ever since; occupying a prominent place
on the shelf of history in the study hall/ivory tower, important both for the values it once
held and in reference to the values that led to its decline.

Unlike the arguments in contemporary debates either lauding433 or castigating43 4

polygamy the Jewish tradition over time has refused to categorize polygamy, as inherently

431 Exodus 1:16.

432 Isaiah 19:11.

433 Emily J. Duncan, The Positive Effects ofLegalizing Polygamy: "Love is a Many Splendored Thing ", 15
DUKE J. GENDER L. & PoL'Y 315 (2008).

434 See, e.g., Maura I. Strassberg, Distinctions of Form or Substance: Monogamy, Polygamy and Same-Sex
Marriage, 75 N.C. L. REv. 1501, 1504-06 (1997).

314 26.2



COLUMBIA JOURNAL OF GENDER AND LAW

either evil or good, but has instead recognized the institution as another tool that has a
time and a place, the abuse of which is wrong and the support of which is sometimes a
good idea. Over time, Jewish law developed a recognition that polygamy fundamentally
changes the nature of the marital relationship and might not be a good idea unless exigent
circumstances, such as war or famine, call for it.

In particular, Judaism's growing concern about the practically unworkability of
polygamy with a companionate form of marriage presents an example of the way in
which religious morality can serve as a progressive force in reshaping legal and social
institutions to improve conditions for women over time.435 This same potential is reflected
in other advances in family law promoted by the Jewish legal system, including divorce,
the forbidding of marital rape, the idea that women could own property, and mandatory
prenuptial agreements specifying a large alimony in the event of divorce. Yet, despite the
historical attentiveness of Jewish law to women's interests, 43 6 modern scholars and policy
advocates have failed to recognize the ways in which religious discourse has informed and
can continue to shape contemporary debates over women's human rights. While it is true
that religious thought cannot currently be considered at the forefront of the academic and
advocacy/policy discussions of women's rights, without the tremendous groundwork that
religion laid, it is very possible that these debates would not exist at all. This Article would
argue then that we should approach perceived conflicts between religious practice and
women's human rights with a sense of humility and a nuanced, contextual understanding,
recognizing the potentially progressive nature of religious morality instead of immediately
labeling particular practices discriminatory or chauvinistic. In the conversations between
law, religion, and culture, an issue like polygamy can demonstrate how religious doctrine
may well serve as a guide for how to balance and protect the practical rights and wellbeing
of members of society, taking into account what people in a particular culture, time, place,
and setting might want and need.

435 See BABYLONIAN TALMUD, Kesubot 47a (giving married women additional rights).

436 See RACHEL BIALE, WOMEN & JEWISH LAW: AN EXPLORATION OF WOMEN'S ISSUES IN HALAKHIC SOURCES
(1984).

26.2 315