I've noticed in the two weeks since Obergefell came down, the opponents of the U.S. Supreme Court's ruling, at least those of the Jewish persuasion, have been changing up their tactics.
It's old hat to cite Lev. 18:22/ 20:13. After all, then one would have to admit that halakhically, all that prohibits is anal sex between males (as Hizkuni ad loc. notes, whetting one's sword would not be included). Also, one might have to admit that various commentators have read the verse differently, not just in modern times but a millennium (Rabbeinu Hananel ad loc.) or two (Bar Hamduri, Yevamot 83b) ago. Those readings may have more philosophical than legal implications, but they're still significant.
Instead, they rely on a trinity of exegetical passages, from the Talmud and Midrash. Let's see them:
#1: Midrash, Sifra, Aharei 9:8
I did not say this [prohibition] except for the statutes enacted by them, their fathers, and their father's fathers. And what would they do? A man would marry a man, a woman [would marry] a woman, a man would marry a woman and her daughter, and a woman would marry two men. Therefore it says, "and in their statutes do not follow" (Lev. 18:3).In other words: Don't walk like an Egyptian. This is the source for forbidding lesbianism in Jewish law (Maimonides, Laws of Forbidden Relations 21:8). It is a lower-level prohibition than all the others in Chapter 18, the punishment only rabbinical. But what about for non-Jews? Maimonides does not mention it in his list of prohibitions for Noahides (Laws of Kings 9:7), but maybe it's implied by this source. After all, God seems to be criticizing Egypt for it. The only problem is that many of the relationships described in that chapter are perfectly fine for non-Jews. So perhaps the Sifra is highlighting the ones that are universally unacceptable, like polyandry and same-sex marriage? A fine thought, except in between them we have "a man would marry a woman and her daughter"--and a Noahide is allowed to marry his daughter-in-law. In fact, he's allowed to marry his own daughter. No, really, look it up. Traditional marriage, what can I say?
#2: Midrash, Genesis Rabba 5
"They took women of all they chose"--wives of [other] men; "of all they chose"--males and animals.Gemumasiot are translated by some as ketubot, prenuptial documents (mainly based on source #3). Well, there you go. People start writing ketubot for gay weddings, and it's all over! But a ketuba is a marriage contract between two people--did people write one for a cow? And why use some bizarre foreign-sounding word instead of a famous Hebrew one for a Jewish concept?
Rabbi Huna in the name of Rabbi said: The Generation of the Deluge was not wiped off the face of the Earth until they wrote gemumasiot for males and animals.
Said R. Simlai: Wherever you find promiscuity, collective punishment comes to the world and kills good and evil alike.
Prof. Marcus Jastrow, in his authoritative Aramaic dictionary, points instead to Hymenaios, a rousing coupling song sung at weddings. Oh, and another volume of Midrash, Leviticus Rabba (23), has a slightly different version of this tradition.
Said R. Simlai: Wherever you find promiscuity, collective punishment comes to the world and kills good and evil alike.Not males and animals, but males and females. Suddenly, it's the bawdiness of the songs and the licentiousness it reflects which is at issue. Sir Mix-a-lot may yet kill us all.
Rabbi Huna said in the name of Rabbi Jose: The Generation of the Deluge was not wiped off the face of the Earth until they wrote gumasiot for males and females.
#3: Talmud, Hullin 92a-b
"And I said to them: If ye think good, give me my hire; and if not, forbear. So they weighed out for my hire thirty pieces of silver" (Zech. 11:13). Said R. Judah: These are the thirty righteous men among the nations of the world by whose virtue the nations of the world continue to exist.Rabbi Ari Hart already wrote an excellent piece about this passage, and I heartily recommend it. I would just add that it is important to note how difficult it is to make lore into law. Ulla is trying to explain an obscure verse in Zechariah, and there are some striking differences between his conception of Noahide laws and the standard view, explored at length in the seventh chapter of Tractate Sanhedrin and codified by Maimonides.
Ulla said: These are the thirty commandments which the sons of Noah took upon themselves but they observe three of them, namely (i) they do not draw up a prenuptial document for males, (ii) they do not weigh flesh of the dead in the market, and (iii) they respect the Torah.
- Ulla has 30, 27 of which are unidentified, rather than 7.
- Ulla says the nations "took upon themselves" these strictures, rather than being commanded by God.
- Ulla lists commandments which have no equivalent among the 613 commandments incumbent upon Jews.
- According to the Jerusalem Talmud (Avoda Zara 2:1), the thirty commandments are not what the Noahides accepted, but what they will accept in the future.
Well, the first presumption is that Ulla is in fact talking about males who are marrying each other. It may be that he is simply talking about an arrangement in which wealthy females write prenups guaranteeing that they will support their poor husbands after death or divorce.
As Rashi reads it, it's a little bit more complicated. Gay prostitution is accepted in Ulla's locale, gay concubinage is accepted, but gay prenups go too far. Why would this be? A prenup seems to be quite technical. If the issue is making the relationship open, official and ordinary, why is concubinage fine? Concubines were publicly known, their children were recognized--that IS biblical marriage. Solomon's 300 concubines were not a secret.However, if one studies Ketubot, it becomes clear why the ketuba is so important: it is the bedrock of societal gender roles. A female goes from her father's house straight to her husband's house, but what maintains her after the latter's death or divorce? That is why the Rabbis instituted ketuba, to obviate the need for women to step into a man's world. They went so far as to say that any marriage without it was unacceptable. And thus, extending that to males would totally change the social order.
Ulla, as explained by Rashi, accepts the reality of anal sex between men and of that relationship being formalized. He just objects to extending rights, creating a sinecure for a gay paramour. If people really accepted Ulla's statement as halakha--and there are many compelling reasons not to--then their cry would be: sex, yes; marriage, yes; rights, no. Instead they claim the opposite position, as exemplified by Israeli Education Minister Naftali Bennett: “Rights, yes. Recognition, no.”
Ulla's exegesis is social commentary, which is why he points to socioeconomic mores, rather than the essential issues addressed by the Seven Noahide Laws. And when it comes to socioeconomic mores, I don't think we're in third-century Palestine anymore.
So would the sages of the Talmud and Midrash have celebrated this ruling? I highly doubt it. But if we want to figure out how we should react, we must do our due diligence and subject our sources to the strictest scrutiny.