On rigid halachic identities in the Torah – agunot, mamzari, and LGBTQ people
Rabbi Michi Shlita, peace and blessings,
Below is a post I recently wrote, I would appreciate your feedback:
“The laws of the Torah are not revenge in the world, but mercy, kindness, and peace in the world” (Rambam, Laws of Shabbat 2:3).
A) For three, life according to Torah law is a life of sorrow and misery: a bastard, an agunah, and a homosexual.
b) What these three identities have in common is that they did not choose to be in this situation. This situation was forced upon them and the Torah does not present a substantial solution for them, only obstacles and limitations.
C) The bastard, born as a result of adultery, such as a man’s wife sleeping with a foreign man. He may only marry a bastard, a slave girl, or a convert, which almost completely reduces his ability to choose a partner.
The agunah, her husband did not give her a divorce, and at the moment he is unable (such as if he is dead and cannot be found, or he has grown) to give her a divorce or he refuses to give her a divorce. Such a woman is imprisoned, and she is forbidden to marry any man in the world, and thus she remains alone in her agunah.
A homosexual, who was naturally attracted to members of his own sex without choosing, the Torah forbade him from fulfilling his desire for sexual relations, and thus he was condemned to a life of celibacy and romantic solitude.
d) The Torah did not provide solutions to these problems. There are local halakhic solutions to permit agunah and to permit bastards, but these are local solutions, the purpose of which is to make the agunah not an agunah, and the bastard not a bastard. As for homosexuals? There is no halakhic solution to permit same-sex relations.
E) And here the big question arises: why is the Torah so strict in matters of childbearing and nakedness, to the point that it causes great harm to people who have no control over the situation they find themselves in by virtue of the decrees of the Torah? Why has the Torah created such problematic halachic identities that can cause great sorrow to people who find themselves in such a reality?
I don’t know a good answer to this question, but I think that before that we need to look into why this is even problematic in the eyes of the Torah, regardless of whether the person can get out of their situation or not. When we understand that, perhaps we can understand this too.
Beyond that, I don’t see any fundamental difference between this and the ordinary illnesses and suffering that God created in His world. Even there, I don’t understand why (although I once offered an answer to this, and I’m sorry).
I would also add that the Torah has religious purposes and sometimes they conflict with moral values, and therefore a moral problem does not undermine the correctness and worthiness of the Torah. See column 15 on the website.
The answer seems to be that the fourth element you didn't mention - the population of Canaan - is also answered. They should have died for no wrong of their own. Well, they answer, in the long run it would have been beneficial if the Israelites had indeed destroyed them and the world would have become more monotheistic and therefore also better and more moral. In the long run, this would lead to a reality in which there is less suffering in the world (only God knows this and therefore was the only one who could command it. This problem, by the way, is not difficult, according to the research. First: the commandment was not fulfilled as written in the book of Judges 1, etc., etc. - according to the doubters, the commandment was originally written at a later time when the Canaanite population was no longer a factor in the region, and it was written as an anachronistic commandment that tries to convey any ideological message. So the only problem is for those who believe that Moses wrote the commandment directly from the mouth of God. So they make it difficult for God…)
Also regarding the bastard and the homosexual, the assumption that the minority who suffer here is not taken into account compared to the majority who will earn a happier life. The prohibition of bastards serves as a strong deterrent to infidelity within the family, and constitutes normatively what the hymen constitutes biologically, only much stronger. The prohibition of same-sex relations causes sorrow to a percentage of the population, but contributes happiness to the many offspring that will be born to a gay man who will eventually marry, and also to the rest of the population, who will not be confused by a constant gender search, and not busy with fruitless sexual urges, just as other prohibitions on incest are intended to sterilize the cultural space from sexual chaos, and so in most cultures. First, the prohibitions on same-sex sexuality speak according to the majority, and do not discuss individuals, since the permission for individuals would entail sexuality available to those who are not like that. This is because the company of men has always been available and easier for jerks in cultures that did not categorically deny it. (Some say that the prohibition in the Torah is also directed only at sinners without a tendency, and even Rabbi Michai hinted at this more than once, or at those who sin by ritual prostitution, and I have already seen those who have suggested that there is no prohibition at all unless there is “sexual intercourse” which is technically impossible - and in any case everything is permitted, according to the rabbinic tradition)
As for the agunah, here the matter is more complicated, and perhaps the stricter agunah is intended to establish the extreme seriousness regarding the standard marriage bond. Although these are already excuses for the law that developed in the Sages, while according to simple readings it is not at all clear that there is such a thing as an agunah. It is difficult to ask what the halakhic part is about such things, since this is a very cumbersome and complex system and it is likely that all kinds of intersections of laws will be found in it that have created certain percentages of moral failures. This is not under control, and probably occurs in any complex legal system. Only the Creator can be expected to enact a law free from negative applications (and even then only “according to the majority”, as the Rambam said), not so with Halacha, which developed from a certain stage in a more or less blind path. See the wonderful words of the greatest of his brothers, Moshe Halbertal, in his paralyzing article, on the emergence of Halacha and the thanks of Halacha
https://law.tau.ac.il/sites/law.tau.ac.il/files/media_server/law_heb/dine_israel/published/published_%D7%9B%D7%98/Halbertal.pdf
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