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Article: Religion & sexuality: a matter of interpretation

Published: August 1, 2014. Author: Rebecca Forgasz. Theme:  homosexuality.

About The Author

Rebecca Forgasz is the Director of the Jewish Museum of Australia in Melbourne. She has previously worked in exhibition-related roles at major state institutions and she is an experienced Jewish educator. Rebecca holds Masters Degrees in Women’s Studies and Jewish Studies as well as a Diploma of Education.

Religion & sexuality: a matter of interpretation

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Matters of religion and sexuality have come to the fore in public debate recently, as same-sex marriage has become a heated political issue, and discussions about same-sex parenting and transgender teenagers have taken place on prime-time television. In the context of these debates and discussions, religious leaders and those of strong religious conviction are often the ones representing the most conservative perspective, which can give the impression that religion has a monolithic and negative view on matters of queer sexuality. But the truth is that, even within religious communities, there is a great deal of scope for interpretation on these issues.

 

In a recent episode of Insight on SBS television focussing on the issue of gay marriage, the potential for vastly different opinions within religious traditions was highlighted. Sheikh Mohamadu Saleem of the Virgin Mary Mosque in Hoppers Crossing, Melbourne, for example, claimed that Islam would never permit same sex marriage; that it is clearly prohibited in the Koran. Yet, another guest on the program, Imam Daayiee Abdullah, told of how he has been performing same-sex Muslim marriages in America for thirteen years. According to his interpretation of the Koran, marriage is not necessarily between a man and a woman, but ‘among the single’. Similarly, two rabbis provided opposing views from a Jewish perspective. The views of Rabbi Jacqueline Ninio, whose synagogue in Woollahra, Sydney, performs commitment ceremonies for gay couples, stood in stark contrast to those of Rabbi Moshe Gutnick, President of the Organisation of Rabbis of Australasia, who said that the Torah prohibits homosexual sex and certain sorts of relationships.

 

Pride marchTo understand how such differing perspectives can emerge from within a single religious tradition, it is instructive to examine closely selected laws and their history of interpretation. Certainly within the Jewish tradition, such examination can reveal that the grounds upon which anti-gay views are based are far less stable than their proponents would have us believe. Indeed, as critical legal studies theorists argue, religious laws are not the result of impartial judicial reasoning from neutral principles, but are influenced by social and cultural attitudes of lawmakers. And as easily as a more stringent interpretation may be taken, so too may a more lenient hermeneutic be adopted, resulting in a more inclusive, tolerant legal position.

 

To demonstrate the insights that such analysis might yield, we will take the example of lesbianism in Jewish law. It is often assumed that Jewish law treats lesbianism exactly the same as male homosexuality. The well-known prohibition against male homosexual activity (or, as critical readers will insist, certain types of activities) found in Leviticus 18 – ‘a man who lies with a man as one lies with a woman, they have both done an abomination; they shall be put to death’ – is assumed to extend to women. However, this is not the case. The Torah does not even mention female homosexual activity, and later Jewish law treats male and female same-sex erotic relationships as completely separate categories.

 

proud___harvey_milk_poster_by_kingpin1055-d50fsleThe earliest mention of female homosexual behaviour in Jewish law is in the Sifra, a collection of rabbinic legal commentary on the biblical book of Leviticus compiled in the 3rd-6th centuries. Interpreting the biblical verse ‘You shall not copy the practices of the land of Egypt where you dwelt, or of the land of Canaan to which I am taking you; nor shall you follow their laws’ (Leviticus 18:3), the Sifra references certain practices of the ancient Egyptians and Canaanites that would be forbidden: ‘A man would marry a man, a woman would marry a woman, a man married a woman and her daughter, and a woman would be married to two men.’ Of the four marital arrangements listed in the Sifra text, all except that between two women are specifically mentioned elsewhere in Leviticus as forbidden sexual liaisons. Including marriages between women in this list may have been a rhetorical strategy to give the impression that such relationships are equally forbidden. In Jewish jurisprudence, biblical law has far greater authority than laws of rabbinic origin, so a link to Leviticus gives it more weight. It is also worth noting that the text only mentions marriage between women; it is silent on the matter of sexual activity between women per se.

 

The first reference to such sexual activity is found in the Babylonian Talmud, the earliest comprehensive collation and authoritative foundation of Jewish law, the redaction of which was roughly contemporaneous with the Sifra. The reference is made in the context of a broader discussion about the legal category of the zonah – a woman who has had forbidden sexual relations that disqualify her from marrying a priest. The text states:

Rav Huna said: ‘Women who me’solelot with one another are prohibited from marrying a priest [because such women are considered to fall into the category of zonah].’ Ravah disagreed with Rav Huna, saying: ‘Even Rabbi Elazar [who is strict on this matter] addresses [only intercourse with] a man. In his view, me’solelut with another woman is “mere indecency”.

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In this text, the exact meaning of the Hebrew term mesolelot is not explained. However, it clearly involves two women engaged in some kind of sexual activity, otherwise it would not be included in this discussion. Translators of the Talmud are notoriously squeamish about rendering this term in English, with one translation, for example, defining it opaquely and somewhat circularly, as ‘women who commit lewdness with one another.’ The famous medieval biblical and legal commentator Rashi, however, provided an explicit definition of this act, namely ‘they rub their female parts (i.e. genitalia) against one another.’ So the question being considered is whether two women engaged in this kind of sexual activity are considered to fall in the category of zonah. And here, as is usually the case in the Talmud, there is a difference of opinion between two rabbis.

 

The first rabbi, Rav Huna, argues that both women engaged in mesolelut are to be considered a zonah. On the other hand, Ravah, quoting Rabbi Elazar – known to ordinarily hold the strictest views when categorising a woman as a zonah – says that this act does not make a woman a zonah, because only sexual intercourse with a man can cause this change of status. The act of mesolelut does not have the same legal implications. This sexual act between women is not (here, or elsewhere in the Talmud) expressly forbidden. Rather, it is considered ‘mere indecency’ – a Talmudic term used to express disapproval of certain conduct, usually because it transgresses social or communal norms, and includes such behaviour as wearing red clothing. It is only the 12th century legal giant, Maimonides, who moves to prohibit this sexual conduct between women.

 

In his famous codification of Jewish law, the Mishneh Torah, Maimonides writes:

 

Women who rub with one another, [this] is forbidden. And this is the practice ofEgypt which we have been warned against [as the sages have said]…. Even though this practice is forbidden…. there is no specific prohibition [in Scripture] against it, and [moreover] there is no intercourse there at all. Therefore, they [women who have done this]are notprohibited to [marry into] the priesthood because of forbidden sexual intercourse [that is, neither woman is deemed a zonah], and a woman is not forbidden to her husband [as a woman who had committed adultery would be] bythis…. But it is fitting to flog them for rebelliousness, since they have done something forbidden.

 

In several ways, this text is consistent with earlier sources. It notes, for example, like the Talmud, that sexual activity between women isn’t actual ‘intercourse,’ and does not relegate the women concerned to the category of zonah. The text also acknowledges that there is no biblical prohibition against this activity. However, this text also introduces some new concepts, and in synthesising earlier law, conflates several different points. Maimonides claims that the sexual act of women ‘rubbing with one another’ is ‘the practice of Egypt,’ according to the earlier sages’ interpretation of Leviticus. However, we know that what the Sifra defined as one of the ‘practices of Egypt’ was women marrying one another, not engaging in sexual activity. Perhaps this conflation is necessary to give weight to Maimonides’ unprecedented assertion that sexual activity between women is forbidden, and deserving of the administration of lashes. (Note that corporal punishment has not been practised in any Jewish community for centuries). Previously it was considered indecent, but not explicitly forbidden.

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Later codifications of Jewish law entrench Maimonides’ prohibition further by omitting the early opinions that stated there is no biblical prohibition against it. One code even adds that excommunication of women who ‘rub with one another’ is permitted.Thus we can see that additions and changes to the  law on this topic  move in an ever-stricter direction.

 

Undertaking a close analysis of Jewish law in this way reveals the mechanism and hermeneutic strategies underlying its change and development. In doing so, the possibility that that the law may be otherwise is also revealed. Further analysis would be required to understand the social and cultural context in which changes in these particular laws took place – specifically, why the laws became stricter over time. However, it is clear that there were reasons external to the law’s own internal logic. If this is the case, then surely  modern rabbis of appropriate standing and authority can make changes in a more lenient direction, using the very same process and methods of the Jewish legal framework. Or to quote the well-known adage of Orthodox Jewish feminist Blu Greenberg, ‘where there’s a rabbinic will, there is a halachic (Jewish legal) way.’

I cannot claim to have the same knowledge of the history or mechanisms of the law in other religious traditions. However, I can only assume and hope that there are similarly multiple interpretive possibilities of this and other contemporary social issues, and that we can, as religious communities, choose an ethical stance of inclusion and compassion when deciding which interpretive paths to take.

 

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