Q&A: On Rigid Halakhic Identities in the Torah — Agunot, Mamzerim, and LGBT People
On Rigid Halakhic Identities in the Torah — Agunot, Mamzerim, and LGBT People
Question
Rabbi Michi, may he live long, hello and blessings,
Below is a post I wrote recently; I would be glad for your response:
"The laws of the Torah are not vengeance in the world, but rather mercy, kindness, and peace in the world" (Maimonides, Laws of the Sabbath 2:3)
A) For three kinds of people, living according to Torah law is a life of pain and misery: a mamzer, an agunah, and a homosexual.
B) What these three identities have in common is that none of them chose to be in this situation. This condition was imposed on them, and the Torah does not present any essential solution for them, only barriers and restrictions.
C) A mamzer is born as the result of adultery, for example a married woman who slept with another man. He is permitted to marry only a female mamzer, a maidservant, or a convert, which narrows almost totally his ability to choose a spouse.
An agunah is a woman whose husband did not give her a bill of divorce, and at the moment is unable to do so (for example, if he died and his body cannot be found, or if he is in a vegetative state), or he refuses to give her a bill of divorce. Such a woman is trapped, and she is forbidden to marry any man in the world, and so she remains alone in her chained state.
A homosexual, who is naturally attracted without choice to members of his own sex, is forbidden by the Torah from acting on his desire to have sexual relations, and so he is sentenced to a life of abstinence and romantic loneliness.
D) The Torah did not establish solutions to these problems. There are local halakhic solutions to permit an agunah to remarry and to remove mamzer status, but these are local solutions, whose purpose is to turn the agunah into a non-agunah, and the mamzer into a non-mamzer. As for homosexuals? No halakhic solution was given to permit same-sex relations.
E) And here the big question arises: why is the Torah so rigid in matters of marriage and forbidden sexual relations, to the point that it causes great harm to people who have no control over the situation they are in because of the Torah's decrees? Why did the Torah create such problematic halakhic identities that can cause great suffering to people who have found themselves in such a reality?
Answer
I do not know a good answer to this question, but it seems to me that before that we need to ask why this is problematic in the Torah's eyes at all, regardless of whether the person can get out of his situation or not. When we understand that, perhaps we will also be able to understand this.
Beyond that, I do not see an essential difference between this and illness and ordinary suffering that the Holy One, blessed be He, created in His world. There too I do not understand why (although I once suggested an answer to that, but this is not the place for it).
Discussion on Answer
Seemingly the answer is the same one given regarding a fourth element you didn't mention — the population of Canaan. They had to die through no fault of their own. Well, the answer given is that in the long run it would have been beneficial had the Israelites actually destroyed them, and the world would have become more monotheistic and therefore also better and more moral. In the long run this would have led to a reality in which there is less suffering in the world. Only God knows that this is so, and therefore only He could command it. This objection, by the way, is not difficult according to academic scholarship. First, the command was not carried out, as written in Judges chapter 1, and furthermore, according to the skeptics, the command was written in the first place in a later period when the Canaanite population was no longer a factor in the region, and it was written as an anachronistic command trying to convey some ideological message. So the only objection is for believers who hold that Moses wrote the command directly from God's mouth. Then they are objecting to God…)
Also regarding the mamzer and the homosexual, the assumption is that the minority that suffers here is not taken into account in comparison with the majority that will gain happier lives. The prohibition concerning the mamzer serves as a sharp deterrent to infidelity within the family, and normatively plays the role that the hymen plays biologically, only much more strongly. The prohibition on same-sex relations causes sorrow to a tiny percentage of the population but contributes happiness to the many descendants who will be born to the gay man who in the end will marry, and also to the rest of the population, which will not be confused by constant gender searching and will not be occupied with sterile sexual impulses — just as all the other prohibitions of forbidden sexual relations are meant to sterilize the cultural space from sexual chaos, as is the case in most cultures. In short, the prohibitions on same-sex sexuality speak according to the majority and do not deal with individuals, because permission for individuals would drag in available sexuality even for those who are not such. This is because male company was always more available and easier for casual sex in cultures that did not strongly reject it. (Some say the prohibition in the Torah is directed only at sinners without an innate inclination, and Rabbi Michi too has hinted at this more than once, or at those who sin in cultic prostitution; and I have already seen those who suggested that there is no prohibition at all unless "the lyings of a woman" are involved, something that technically cannot happen — and therefore everything is permitted, which is what had to be shown.)
As for the agunah, here the matter is more complicated, and perhaps the stringency regarding chained women is meant to establish the extreme seriousness of the standard marital bond. However, here these are already excuses for the Jewish law that developed in the Talmudic sages, whereas according to the plain meaning of the verses it is not at all clear that there is such a thing as an agunah. About things like this it is hard to ask what the halakhic point is, because this is a very cumbersome and complex system, and it is likely that in it one will find all kinds of intersections of laws that create certain percentages of moral failures. This is not under control, and presumably exists in every complex legal system. Only from the Creator can one expect legislation free of negative applications (and even that only "according to the way of the majority," in the words of Maimonides in Guide for the Perplexed), but not so regarding Jewish law, which from a certain stage developed along a more or less blind path. See the wonderful words of the greatest of his brothers, משה הלברטל, in his stunning article on the emergence of Jewish law and the foundations of Jewish law
I would add that the Torah has religious goals, and sometimes they stand in opposition to moral values, and therefore a moral objection does not undermine the truth or worthiness of the Torah. See Column 15 on the site.