Ki Tetze—Marriage and Divorce

The old joke about why Gittin appears before Kiddushin in Shas (because G-d created the refuah before the makkah) is somewhat upended in this weeks parsha, where the sources for marriage and divorce appear in the same verse (24:1), with “kicha”, the term used for kiddushin, clearly preceding the appearance of “sefer kerisus”, the term denoting a get. The way the verse is written almost makes marital discord and divorce appear to be an inevitable consequence of marriage.

Further study of much of the halachos regarding marriage and marital conduct seems to mostly deal with what can, and will, go wrong, this even before it deals with issues of marital misconduct and divorce, a world all its own. (Maybe my Shabbas Nachamu criticism of religious figures’ involvement in matters of the heart may have been a bit harsh, at first glance; the halachic literature ostensibly doesn’t really give them that much to work with.)

I think the Torah boils the notion of marriage down to one very basic premise: no sexual relationship should ever be commenced until the parties are prepared to sign a contract regulating it. No matter how committed or in love two consenting adults really think they are, without this willingness, the relationship won’t be worth the paper its printed on. The Torah points out that there are going to be times this happens even when said paper does exist.

Furthermore, the marriage verse may seem to warn us that, if we are to think that the Torah is inevitably androcentrically misogynist, sometimes we might think again. We can examine a few of these bon mots, starting with 24:1.

The assumption in the verse seems, at first glance, to blame the ostensible dissolution of the marriage on the woman—“ki matza ba ervas davar”, he has found some unseemly thing in her. It doesn’t take much in the way of imagination to propose that the fault is with the male for being so fault-finding, maybe he is simply looking for a way out. (Why does the Torah give it to him? That’s another discussion.  Start with the machlokes Bes Shammai/Bes Hillel at the end of Gittin about grounds for divorce.  Rabbeinu Gershom must have thought along similar lines.)

The Gemara  (Bava Basra 132b and elsewhere) states unequivocally that a woman wants to marry more than a man. In light of everything we’ve seen up to this point, this might simply be a topical restatement of the notion that women are simply more inclined toward monogamy than men are. That would make evolutionary biology as androcentric as the Torah, which complicates matters considerably.

The last item I would like to examine is the Talmudic statement “Tav le’meitav tan du mi’lemeitav armelu”, which at its most basic is translated “Better to settle as two than to settle [alone][lit 'a widow']”. This has been seized upon to mean that the Talmud is suggesting a woman is better off settling, even with a “bad” match, than with no match at all. This unnecessary translation is something that both what I would call Ultra-Right Fundamentalists and Doctrinaire Marxist Feminists would have us believe.

A closer examination of the hermenuetuical makeup of one of the sugyas in which it appears (Kiddushin 41a; this statement appears in Shas four other times) should put the lie to both sides of this debate. The Gemara has just finished explaining why a man must see his prospective bride before betrothal, lest he not like what he sees and then find himself in violation of “You should love your neighbor as yourself” (!). The Gemara uses this statement to answer why the converse would not apply to women; one might even say it means that, all other things being equal, looks aren’t an ultimate dealbreaker from her end the way they might be from his. All in all, the Talmud just finds its own way of stating that the male is more spatial. Hardly politically correct, but just as hardly misogynist.

(If you think the two are synonymous, you are just as much a fundamentalist as leftist, if not worse of one, than your religious/right counterparts. But that’s another discussion still.)

The debate regarding halacha’s ostensible misogyny will never end as long as there is ink to spill (better that than blood, though at times it seems we might be coming a little too close). My contribution in this discussion is the following suggestion: the Torah has its own agenda. One must be careful in explaining it in terms of other socio-political labels and phenomena, no matter how much of a surface resemblance there seems to be.

We do ourselves—and Torah—no favors by attaching labels to its precepts. They stand on their own.

Shoftim—The Political Is Personal

This week’s parsha closes with the passage of egla arufa, the procedure to be undertaken when the body of an apparent victim of murder is found in between two jurisdictions.

The egla arufa ceremony serves as an indication of an instance when a breakdown in the social fabric occurs, and the various authorities summoned to perform the various functions are enjoined to examine whether they have been remiss in keeping order, even inadvertently, to the point that an ostensible innocent has perished.

As R’ Avraham ibn Ezra and Chizkuni delineate, this passage follows the passage regarding the ethics of besieging an enemy, because, as they put, it links a national state of war with a personal state of war that resulted in murder.

Chizkuni also asserts that the process of measuring meticulously to determine the locale last responsible for the deceased allowed for investigation as to the identity of the deceased, because word would inevitably get out, indicating that a cover-up was never to be an option.

Rashi, quoting the Talmud in Sotah, states that the Sanhedrin HaGadol administrates the beginning steps of the procedure, indicating that the case is given national import.

Rashi also explains what the declaration “yadenu lo shafchu et dam hazeh” means: there was no reason to assume that this man was not provided with provisions and an escort when he left town. Interestingly, it seems the authorities were realistic enough to discern the need for escorts and protections, even among and between members of clal yisrael.

The medrash states that when Yosef sent “agalos”, or wagons, to Yaakov back with his brothers after revealing himself to them, this was a code, of sorts: Yosef was reminding Yaakov that the two of them were learning the halachos of egla arufa when they had last seen each other. We might see that Yosef wasn’t simply assuring his father that he hadn’t forgotten to open a sefer in the prior 22 years. Instead, Yosef may have been telling his father: I may have an incredibly powerful position, but I know what it really means in terms of responsibility, especially regarding preservation of life and provisions.

With the conventions over, running mates selected and the campaigns now in full swing, its easy to forget, what with all the promises and issues bandied about, the real meaning of leadership and responsibility. This applies both to candidates and voters. Keeping in mind the lesson of egla arufa might serve as a reminder that, while the personal may be political, the political is always personal.

Re'eh--Dry Cleaning

During the Nuremberg trials, it was said of the Nazi war criminals that the farther away from the actual killing they were, the more actual responsibility they bore. Responsibilty stemming from influence is a major theme in the parsha, where chapter 13 lays out in succession three different paths to idolatry and their consequences: false prophecy (navi sheker), the private seducer (mesis/mediach), and the idolatrous city (ir hanidachas).

Each category has unique halachic characteristics. Chizkuni, quoting Sifri and Bechor Shor, asserts that a navi sheker never starts out that way; rather, he will be a once bonafide prophet with proper spiritual credentials who, upon becoming corrupted for whatever reason, will use the same “signs” (os/mofes) for idolatrous purposes that he once utilized for G-dly service.

In the case of mesis/mediach, Rambam in Hilchos Avodas Cochavim 5:3 details how this is the one case in all of Torah/Halacha where legal entrapment is not only permitted, it is encouraged. This follows all of Rashi’s quotes from the Sifri that, whereas in all other capital cases all efforts are to be made to spare the defendant from execution, in this case the opposite pursuit is to be the ultimate end.

The ir hanidachas, of course, is unique in halachic literature (along with the ben sorer u’moreh) that its relevant halachos actually prevented the possibility of it ever being carried out.

What’s the link between all these?

Knowing who and what your influences are and where they are coming from is the strongest common denominator. Specifically, the Torah is warning us that sometimes the worst kind of behaviors happen right in front of our noses and can be perpetrated by the people we love the most and are supposed to admire most, as opposed to the city streets, or “ir”, where we might be less surprised to find widespread moral turpitude. The Torah tells us not only that it can happen here, but that it will.

Regarding the consequences, while it seems that the mandated earth-scorching of ir hanidachas seems to be the most draconian of the three cases, the legal barriers to the punishment ever being carried out actually mitigates that: there comes a point when you simply can’t mete out widespread punishment, even if you should. No such barriers exist in the other two cases. The Torah is directing us to stop the influences in its tracks with extreme prejudice when we see them, before it becomes too late and results in widespread destruction, executed judicially or otherwise.

A tangentially related note: I’m going to go out on a limb here, but one might possibly draw an analog to stories of home and clergical abuse one hears about nowadays; irrespective of their (purported) infrequency, or possibly even because of it, there exists an admonition of sorts to administer the consequences harshly—and publicly. The mishna in Avos that says “Hamechalel shem shamayim ba-seser, nifra’in mimenu be-gilui”—clandestine chilul hashem usually results in a very public payback—may be more than just hinting at this.

Religious communities of all sorts have a built-in aversion to “public washing of dirty laundry”. The Torah indicates that such notions are not necessarily Jewish values.

Eikev: Where Does It Say?…

We learn from this week’s parsha that one is not allowed to eat on Yom Kippur.

This while Yom Kippur is nowhere in the Parsha.

The halacha is derived from a gezera shava between “Va-ya’ancha va-ya’arivecha” in this week’s parsha and “ve-inisem” in Acharei Mos and Emor.

Many examples abound of fundamental Judaic practices with extremely oblique, if not outright ostensibly flimsy, Torah textual support—not least, shechita (“ve-zavachta ve-achalta”), tzenius (“ervas davar”), hair covering (“upara rosh ha-isha”), minyan (a triple gezera shava) and tefillin (no such word in the chumash). This one may be the most surprising (“What? The Torah doesn’t say be-ferush that you can’t eat on Yom Kippur?”).

I don’t at all mean to imply this phenomenon of “mountains hanging from a hair” (as the Gemara describes the actual textual supports for most of hilchos shabbos) renders the salience of these practices questionable, or diminishes in any way from their Divine and compulsory nature.

What I mean to point out is that there needs to be some reframing done in how the relationship between Torah text and halacha is presented in educational circles. The best formulation I’ve seen belongs to Rabbi Jonathan Sacks: “Halacha changes because Torah does not change.” But I would go a step further.

The Torah is, fundamentally, code. One can discern this from the fact that the actual base text of what we call the Torah she-bichtav has no vowels or punctuation. One might even say that bichtav ends and ba’al-peh begins simply with the addition of vowelization and punctuation.

There are many practical and educational conclusions that can be derived from this notion, which I will discuss in detail in later posts, but for now I will bring it down to one basic point: when we say that Torah is our Morasha (cf Devarim 33) and not anyone else’s, it means that we make a sharp fundamental distinction between what we call Torah and others call the “Bible”. Only we as Jews know what the “Bible” really says. The “Bible” was the first book subject to deconstructive tendencies, first as the Gemara in Megilla details with the advent of the Septuagint, and then later with the various politically denomination-driven Christian translations and finally the Criticisms. I once heard a NCSY Rabbi say that the Torah is possibly the worst written work of literature in existence. And it would be, if it was written by man. Or if it was a work of literature. But it’s neither.

Jews and Torah Judaism should be extremely wary of making any alliances, philosophical, political, or otherwise, based upon notions of “shared Biblical heritage[s]”.

They don’t really exist.

Nachamu: Single?

One can say the Jewish analog to “Spring is here and a man’s thoughts turn to…..” would be this period between Tu B’av and Yom Kippur, bookended by the Dancing of the Girls in White. (Nowadays, one can say this season extends to Simchas Torah, especially on the upper west side.)

I’ve been known to put a Churcillian spin on the upper west side: it’s the worst place for a religious single person to live, except for all the other places. I’ve lived up there for 12 years now, and I can emphatically say that the neighborhood is NOT to blame for my unmarried “predicament”.

And that’s the point I’m trying to make. This “predicament”—singlehood and the consequent delaying of marriage, irrespective of the fact that it slows down the kilui neshamos min ha-guf—does NOT a crisis make.

I think what the well-meaning crisismongers have to realize is that while today’s singles may be “pickier”, or more materialistic, or less “spiritual” than our ancestors (dubious assertions at best, but lets assume their partial truth just for the sake of argument), they forget that what probably scares us most is the actual unrealized depth of our commitment to the Orthodox Jewish lifestyle, a lifestyle that incurs extraordinary expense and diligence. We may not be picky as much as we are smart: if we’re going to make it work the way it has to, we had better make sure we pick the correct partner.

A further irony can be found just in the title of a book written by the founder of Speed Dating: it’s called The Death Of Cupid. This irony is especially delicious, because aside from using a Greco-Roman avoda zara as the avatar of romantic love, it is frum culture that is much more responsible for the death of notions of romantic love among its adherents than any secular cultural force. For millennia, the system of shidduchim and/or marrying one’s cousin or niece was supposed to be a bulwark against romantic frivolities seeping into the bayis ne’eman. And now suddenly it’s a good thing?

There is a reason that religious authorities lack credibility in matters of the heart. So I would say this to them:

We want to marry.

We'll do it when we think we're ready.

In the meantime, leave us alone.

Va-Etchanan: Intermarriage and Gilgulim

This week’s parsha is where the sources regarding intermarriage and matrilinieal descent appear.

I once mentioned to somebody—a reasonable Chabadnik—that even though no one can (metaphysically, at least) opt out of the Jewish people, its almost as if halacha provides an escape route, notwithstanding the level of sin ascribed to it: that a man could choose to have children who would not be Jews.

He related to me a kabbalistic concept that the non-Jewish children of mixed marriages—or other liaisons—often come back to be our worst enemies. That’s one of the reasons I always believed that somehow Hitler yemach shmo somehow KNEW that his father had been the product of a liaison between his grandmother and the teenage son of the family she worked for. (Ron Rosenbaum’s Explaining Hitler gives a stark account of the author’s researching this very question.)

I also was told by a convert whose father was Jewish of another kabbalistic concept: that non-Jewish children of mixed marriages are gilgulim of Jews who intermarried and now must exercise the choice to get back in.

The first is just why the concept of gilgulim makes sense in the first place. The world population is currently six billion; it didn’t reach one billion for the first time until early in the 20th century. Also, consider that the world lived much the same way for almost 10000 years until the advent of the industrial revolution. One should be able to correlate that, as well as the later technological revolution and consequent exponential population explosion over the last half of the 20th century and beyond. I’m just too lazy to do the math.

In any case, my point is this: anyone who lived and died before, say, 1750, might have been a reincarnated to live in the current world in some form or another.

Which brings me to my next point. Why would they be reincarnated now?

The social scientists Alan Wolfe has said, loosely, that the 19th century was about economic freedom, the 20th was about political freedom, and the 21st will be about moral freedom. The current climate of moral freedom provides an opportunity to exercise bechira chafshis on a level that just was not truly possible in any other era. That’s why it would make sense that anyone who lived at a time where moral choices were severely circumscribed by one’s social circumstances might be reincarnated—and possibly “retested”—in a time when the moral climate is different.

That may be the ultimate message of intermarriage. The choices may not be condoned; they may even be condemned. But they’re there. Hare’shus nitnah.

Devarim-Chazon: Victimology and Militancy

The story of the meraglim and the ma’aseh dibbah ra’ah, which the Gemara in Taanis relates occurred on (the first) Tisha B’Av, is repeated in this weeks parsha.

Afraid of the possible loss of their lofty status following the move across the Jordan, the meraglim embarked on a program of dual victimology: we aren’t militarily strong enough, and even if we were, we aren’t spiritually strong enough.

It worked too well. Everyone in klal yisrael—males between the ages of 20 and 60—were taken in.

The Divine response indicates what the Torah thinks of victimology: you call yourselves victims, you will be victims in perpetuity. Bechiya shel dorot.

The counter-response—the ma’apilim--seems to be equally ineffective, both as a militant and spiritual exercise. Similarly, Chazal in Gittin seem to fault the biryonim (“zealots”) for the Churban as much as anyone.

So, as much as across-the-board quietism is decried, nationalist revolutionary militance may probably seen as worse. Often they are two sides of the same coin; these are early examples, but there are many others, Jewish and non-, throughout history, where self-preceived victims become as tyrannical as their former persecutors, often toward the very people they were trying to “liberate”.

This is one lesson of Tisha B’Av that seems to be heeded even less than that of sinas chinam. In fact, it may be more a cause than effect of sinas chinam, and consequently more dangerous.

As a side note: Chazal and the midrashim state that no women were caught up in the sin of the meraglim. That they would not have been militant would be no surprise; that they weren’t susceptible to the national self-pity instigated by the meraglim might tell us something.