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Talmudic Rabbis Ponder Sexual Relations That Are Prohibited by Jewish Law

Plus legitimate and bastard offspring, slaves, and distinctions between Jews, non-Jews, and half-Jews

Adam Kirsch
November 25, 2014
A rabbi presenting his surgical instruments for circumcision in Hof, Germany.(Photo: Getty/DPA/Stringer)
A rabbi presenting his surgical instruments for circumcision in Hof, Germany.(Photo: Getty/DPA/Stringer)

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

The names of the Talmud’s tractates are not always a sure guide to their contents. Tractate Yevamot is primarily devoted to the laws of levirate marriage—the obligation of a man to marry his deceased brother’s widow. But chapter 4, which Daf Yomi readers finished this week, also spent a good deal of time on the laws of illegitimacy and conversion. These may seem like totally unrelated topics, but in fact they emerge fairly naturally out of the main Talmudic discussion. In Yevamot 44a, for instance, the mishna states the law that a man who divorces a woman may not remarry her if she has been married to another husband in the interim. This rule comes directly out of the Torah, in Deuteronomy 24, where such a remarriage is described as an “abomination.”

The same principle, the rabbis say, applies to a chalutza—a widow who has been freed from the levirate bond by performing the prescribed ceremony. (The details of that ceremony were described for the first time in last week’s Talmud reading, in Yevamot 39b: “And he extended his right foot toward her and she removed his shoe from upon his foot and she spat toward his face spittle, which was visible to the court, upon the ground.”) A chalutza stands in the same relation to her brother-in-law as a divorced wife; this is one of many ways in which the obligation of levirate marriage binds a man and a woman even if they decide not to actually get married.

What happens, however, if a man and his chalutza defy the law and get married anyway? Several times in this tractate, the rabbis have confronted the possibility that Jews might have sexual relationships that are prohibited by law. Are such relationships marriages, or are they simply null and void? In this case, the rule is that the marriage of a man and his chalutza is a legal bond, but one that must be dissolved: “One who marries the woman with whom he performed chalitza must divorce her.”

And what if that forbidden union produced offspring? Is the child classified as illegitimate, a mamzer? This is a dire fate, since it marks out the child for his or her whole life as less than a full member of the Jewish community. In particular, a mamzer cannot marry a legitimately born Jew, only another mamzer. According to the mishna, Rabbi Akiva’s ruling is that the child of a man and his divorcee, his chalutza, or even the relative of his chalutza, is a mamzer. But the rabbis are more lenient: The child of a man and his divorcee is indeed illegitimate, they hold, but in the other cases the child is considered legitimate.

After analyzing this disagreement at some length, the Gemara makes a lateral move to another category of forbidden relationships. What if a Jewish woman has a child by a gentile or a slave—is that child a mamzer? Here again there is a disagreement among the sages. Rabbi Yochanan says yes: “All agree with regard to a slave or a gentile who engage in intercourse with a Jewish woman that the offspring is a mamzer.” But in fact, “all” do not agree, because a whole group of other rabbis say that in such a case “the offspring is unflawed” and would be able to marry any Jew—except a priest, for whom the standards of ancestral purity are higher.

But while the child of a Jewish mother and a gentile father is technically “unflawed,” the Gemara shows in a pointed anecdote that such children still faced discrimination. The story goes that Rav, the great amora, was once approached by a man who was the child of a gentile father and a Jewish mother and who asked about his halakhic status. “The offspring is unflawed,” Rav responded, echoing the majority view. But then the man put Rav on the spot by asking for his daughter’s hand in marriage, which Rav refused: “I will not give her to you,” he replied, probably with some embarrassment.

Shimi bar Chiyya, Rav’s grandson, pointed out the inconsistency with a delightful metaphor: “People say that a camel in Medes [a small, remote town] can dance upon a kav [a very small plot of ground]. This is a kav, and this is a camel, and this is Medes, and yet the camel is not dancing.” That is to say, actions speak louder than words, and Rav’s refusal to give the man his daughter in marriage shows that he did not actually believe that a half-gentile was “unflawed.” “Even if he were as great as Joshua son of Nun,” Rav confirmed, “I would not give him by daughter in marriage.” Unwisely, the man kept pestering Rav until the sage “placed his eyes upon him and he died”—one of many examples in the Talmud of the supernatural powers of the greatest sages.

From here, it is natural for the discussion to move into questions of conversion, further examining the distinction between Jews, non-Jews, and half-Jews under Jewish law. The first case the Gemara considers is that of a slave. Under biblical law, it is permitted for a Jew to purchase a gentile as slave, but if the slave converts to Judaism, he must be freed. The process of conversion, for a male, involves circumcision followed by immersion in a ritual bath. Confusingly, however, this is exactly the same process that must be followed by gentile slaves who are acquired by a Jewish master but are not converting to Judaism. Because slaves in a Jewish household are required to follow certain mitzvot, they must undergo circumcision and immersion to become full slaves.

We are faced with a situation, then, as often under Jewish law, where the intention behind a ritual action is all-important. If a slave immerses himself in a ritual bath with the intention of becoming a Jew, he is free; if he immerses himself without that intention, he remains a slave. To avoid losing valuable property, then, Shmuel advises the slave-owner to “hold [the slave] tightly in the water” during the immersion, to demonstrate that he remains under the master’s control and is not immersing for the sake of conversion. The Gemara explains what Rav Ashi did with his own slave, Minyamin: “They placed a bridle upon his neck” during the immersion, and “when he lifted his head from the water they placed a bucket of clay upon his head.” These appalling humiliations were designed to show that the slave remained a slave even after being immersed.

A slave, clearly, gains an advantage from converting to Judaism, and we have already learned that converting for the sake of advantage—even for the sake of love—is forbidden. But what if a gentile comes with a sincere desire to convert to Judaism, purely out of the love of God? Even in that case, the Talmud explains, he is to be strongly discouraged. “What did you see that you come to convert?” the judges of the Jewish court must ask him. “Don’t you know that the Jewish people at the present time are anguished, suppressed, despised, and harassed, and hardships are visited upon them?”

If the convert says, “I know” but still wants to go ahead, the next step is for the judges to remind him of all the stringent laws a Jew must live under: “Be aware that before you came to this status and converted, had you eaten forbidden fat, you would not be punished … and had you profaned Shabbat, you would not be punished by stoning.” Only once the convert has accepted the heavy yoke of the law can he proceed with circumcision and immersion, in the case of a male, or immersion alone, in the case of a female.

Clearly, Judaism is the opposite of a proselytizing religion. Where other faiths make every effort to win converts over, Judaism makes every effort to discourage them. (Circumcision itself is one of the more serious obstacles.) This is partly a matter of good faith: Jewishness has always been a problematic fate, and Judaism is a demanding religion, and it would be unfair to impose it on someone who didn’t know what he was getting into.

But there is also, in Yevamot 47b, a suggestion that even sincere and informed converts are undesirable. “Rabbi Chelbo said: Converts are as harmful to the Jewish people as a leprous scab on the skin.” As the Koren Talmud’s notes explain, commentators have tried in different ways to explain this harsh and ugly saying. Maimonides suggested that it means that converts tend to lapse back into their old ways, thus causing laxity of observance among their fellow Jews. But another authority says the opposite: Converts tend to be very stringent in their observance, which makes born Jews who are not as careful look bad in comparison. In any case, the Talmud makes clear that once a person has undergone conversion, he or she is “a Jew in every sense.” There can be no invidious discrimination between born Jews and converts: Both are equal in the eyes of the Law.

To read Tablet’s complete archive of two years of Daf Yomi Talmud study, click here.

Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.