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lethargic_manNotes from the Marom Bet Midrash
Issues regarding marital status of women in Jewish Law
R. Chaim Weiner
Status of women in Jewish Law
Jewish texts list a number of statuses that women can fall into. (Men get away more lightly; short of adultery, nothing men do affects their status in this way.)
Unmarried (פנויה)
(No quotation here.)Wife
Genesis 28 בראשית כ׳ח Isaac called Jacob, and blessed him, and charged him, telling him: you shall not take a wife from the daughters of Canaan. Get up, go to Padan Aram, to the house of Bethuel your mother's father; and take a wife from there, from the daughers of Laban your mother's brother. And God Almighty bless you, and make you fruitful, and multiply you, that you may become a multitude of people. May He give you the blessing of Abraham, to you and to your descendants with you,to inherit the land of your sojourning, which God gave unto Abraham. Isaac sent away Jacob: and he went to Padan Aram, unto Laban ben Bethuel the Aramean, the brother of Rebekah, Jacob's and Esau's mother.
Now Esau saw that Isaac had blessed Jacob, and sent him away to Padan Aram, to take him a wife from there; and that as he blessed him he gave him a charge, saying, you shall not take a wife of the daughers of Canaan; also, that Jacob obeyed his father and his mother, and went to Padan Aram. So, seeing that the daughters of Canaan were bad in his father Isaac's eyes; Esau went Ishmael, and took to his extant wives Mahalath the daughter of Ishmael Abraham's son, the sister of Nebaioth, to be his wife.
ויקרא יצחק אל יעקב ויברך אתו ויצוהו ויאמר לו לא תקח אשה מבנות כנען׃ קום לך פדנה ארם ביתה בתואל אבי אמך וקח לך משם אשה מבנות לבן אחי אמך׃ ואל שדי יברך אתך ויפרך וירבך והיית לקהל עמים׃ ויתן לך את ברכת אברהם לך ולזרעך אתך לרשתך את ארץ מגריך אשר נתן אלהים לאברהם׃ וישלח יצחק את יעקב וילך פדנה ארם אל לבן בן בתואל הארמי אחי רבקה אם יעקב ועשו׃
וירא עשו כי ברך יצחק את יעקב ושלח אתו פדנה ארם לקחת לו משם אשה׃ בברכו אתו ויצו עליו לאמר לא תקח אשה מבנות כנען׃ וישמע יעקב אל אביו ואל אמו וילך פדנה ארם׃ וירא עשו כי רעות בנות כנען בעיני יצחק אביו׃ וילך עשו אל ישמעאל ויקח את מחלת בת ישמעאל בן אברהם אחות נביות על נשיו לו לאשה׃
קדשה (cult prostitute)
Deuteronomy 23:18 דברים כ׳ג י׳ח There shall be no whore (קדשה) among the daughters of Israel, nor shall there be a male prostitute (קדש) among the sons of Israel. לא תהיה קדשה מבנות ישראל ולא יהיה קדש מבני ישראל
פִּלֶגֶש (concubine)
* Not in the Masoretic text it's not. I wonder what Rashi was using!
Genesis 25:6 בראשית כ׳הו׳ And to the sons of Abraham's concubines he gave gifts, and sent them away from Isaac his son while he yet lived, eastward, into the east country. ולבני הפילגשים אשר לאברהם נתן אברהם מתנת וישלחם מעל יצחק בנו בעודנו חי קדמה אל ארץ קדם׃ Commentary of Rashi: רש״י "Concubines" - This is written defectively* to show there was in fact only one concubine; this was Hagar, who was identical with Keturah. "Wives" are married with a כתובה (marriage certificate), concubines without a כתובה, as explained in Sanhedrin (21:1) concerning the women and the concubines of David. הפילגשים - חסר כתיב שלא היתה אלא פלגש אחת היא הגר היא קטורה. נשים בכתובה פלגשים בלא כתובה׃ כדאמרינן בסנהדרין בנשים ופלגשים דדוד׃
זונה (prostitute)
Leviticus 19:28-9: ויקרא יט כח-כט You shall not make any cuttings in your flesh for the dead, nor print any marks upon you: I am the LORD. Do not profane your daughter, to cause her to be a whore (זונה); lest the land fall to whoredom, and the land become full of wickedness. ושרט לנפש לא תתנו בבשרכם וכתבת קעקע לא תתנו בכם אני ה׳׃ אל תחלל את-בתך להזנותה ולא תזנה הארץ ומלאה הארץ זמה׃ Commentary of Rashi: רש״י "Do not profane your daughter to prostitute her:" by binding his unmarried daughter to enter [into sexual relations] without Kiddushin.
(My notes here say "illegitimate concubinage".)
אל תחלל את-בתך להזנותה - במוסר בתו פנויה לביאה שלא לשם קידושין Commentary of the Rambam (Maimonides):
(Translation (mostly) bylivredor, who says she's not confident of getting every word correct, but certainly did better than me. :o))
הרמב״ם "Do not profane your daughter to prostitute her:" by binding his unmarried daughter to enter [into sexual relations] without Kiddushin.
"And don't prostitute the land": if you act like this, the land will play the prostitute with her fruits, to provide them for another place and not for your land. As it is said [Jeremiah 3:3] "And it will refuse [to provide] showers of rain, and there will be no spring rain, and will be brazen [lit: have the forehead of] like a prostituted woman for you." This is the view of Rashi.
But I did not understand his view, because Torah does not imply prostitution for an unmarried woman, for the Halacha poskens thus: [Yevamot 61b] "If an unmarried man has sex with an unmarried woman outside wedlock, she does not become a prostitute." This is clarified in Sanhedrin [50b]: "Leviticus 21:9, 'And the daughter of a priest, if she profane herself by prostitution' [...] could be interpreted as referring even to an unmarried woman."* Therefore, by drawing an analogy between the two cases where "prostitution" is written, R Eliezer said†: If an unmarried man has sex with an unmarried woman outside wedlock, he does make her into a prostitute.
Thus it is said: "[Priests] may not marry a woman who is prostituted and profaned" [Leviticus 21:7], because she doesn't count as an unmarried woman, except in the case of a female convert, or freed woman, or one who has been subjected to prostitutional sex from one who is unmarried. They should treat her the same, as is clarified in Yevamot [see above] and in Sifra [1:7].
"A prostituted woman" R Yehuda says refers to a woman who is totally incapable of conceiving [literally ram-like or masculinized, figuratively wombless], but the Sages say: the only prostitutes are a female convert, a freed woman, or one who has been subject to prostitutional sex. R Eliezer includes even [the case where] an unmarried man has had sex with an unmarried woman outside wedlock.
Thus it is said [Terumah 29b] on this subject "they may not bring the price of a prostitute" [Deut. 23:19], because she is not unmarried at all.
אל תחלל את בתך להזנותה - במוסר בתו פנויה לביאה שלא לשם קידושין׃
ולא תזנה הארץ, אם אתה עושה כן הארץ מזנה את פירותיה לעשותם במקום אחר ולא בארצכם, וכן הוא אומר (ירמיה ג ג) וימנעו רביבים ומלקוש לא היה ומצח אשה זונה היה לך וגו׳, לשון רש״י׃
ולא הבינותי דעתו שאין זנות בתורה בפנויה, שהלכה פסוקה היא (יבמות סא ב) פנוי הבא על פנויה שלא לשם אישות לא עשאה זונה, ומפרוש אמרו בסנהדרין (נ ב) ובת איש כהן כי תחל לזנות (להלן כא ט), יכול אפילו פנויה, והקשו והא "לזנות" כתיב, ותירצו כרבי אליעזר דאמר פנוי הבא אל הפנויה שלא לשם אישות עשאה זונה׃
וכן אמרו, אשה זונה וחללה לא יקחו (להלן כא ז), שאינו בפנויה, אלא גיורת ומשוחררת או שנבעלה בעילת זנות ממי שאין קדושין תופסין בה כמו שמפורש ביבמות (שם) ובסיפרא (אמור פרך א ז),
אשה זונה ר׳ יהודה אומר זו אילונית, וחכמים אומרים אנו זונה אלא הגיורת ומשוחררת ושנבעלה בעילת זנות, ר׳ אליעזר אומר אף פנוי הבא על פנויה שלא לשם אושות׃
וכך אמרו (תמורה כט ב) לענין לא תביא אתנן זונה (דברים כג יט), שאינו בפנויה כלל׃
* I think the Talmud eventually argues against this. Which suggests to me at least that R. Eliezer, as the voice of stringency, is out on a limb here, as further down in this passage, but I'm not entirely sure about this.
† This bit livredor says she's not at all sure of, but thinks
that's the gist.
Thus (says R. Weiner, who was obviously more confident of his translation than I am of mine), the Rambam here refutes Rashi entirely sure about this saying a women having a one-night stand is a זונה, harlot; he says she is פנויה, single—there's nothing to it! [I don't think I've got this right here; see further my other set of notes on this subject.]
The Rambam says that the only non-unmarried status a woman can have is as married. So how does he deal with the fact that the patriarchs and kings had concubines? He rules that only kings are allowed to have them!
The Ramban (Nachmanides), by contrast, takes the opposite view; that there is a whole range of legitimate options between being single and married - including not just the above but cohabiting couples, in which he treated the woman as a פלגש, concubine.
Amazingly, I appear to have grown up, as a priest myself, and aware on the restrictions on priests marrying divorcees and the High Priest marrying converts, not aware, until relatively recently, of the ban on priests marrying a זונה. To which my informed response can now be that I follow the Rambam on this and don't consider an unmarried woman who is not virgins to be a זונה. (Though to be honest, I'm not entirely sure the above passage condones this in the case of priests.)
How to deal with the problem of אגונות (chained women)?
One solution is to do away with the whole concept of marriage! This has been suggested as a solution to be implemented as the law in the state of Israel: replacing the contract of marriage with a contract of concubinage - effectively a civil wedding.
Another possibility: to make all marriage conditional (ie. introducing pre-nuptial agreements). If the marriage breaks up and a גט (get, bill of divorcement) is not forthcoming, the marriage will be annulled within six months. (The parties involved will then be considered never to have been married.)
A third possibility: for all marriages you write both a כתובה (marriage certificate) and a גט (get); the גט is then deposited to be given to the woman under certain circumstances.
All three of these solutions were turned down, not by the rabbinate but by the people on the street, because they felt it would undermine the institution of marriage.
Does the possibility for marriages of fixed duration exist in Judaism?
There is a peculiar custom in Shi'ite Islam, of limited-duration
Mut'ah marriage, to which I was introduced (the concept that is; I did
not get married!) by autopope. Apparently, despite being strongly frowned upon by Sunnis and more conservative Shi'ites, it's recently been revived in Iran as a way of dealing with pre-marital sex. Which is to say, in practice, prostitution: Prostitutes "marry" their clients for an hour, and in return for forking over the wedding fee the authorities leave them alone.
autopope used this in one of his stories as a way of handling
marriages which are real but intended only to be of limited duration. I found
this fascinating, and, since this שעור was making me aware of all manner of
ways of handling marriage in Judaism I was not aware were possible, asked
R. Weiner whether something like this might be possible within Jewish law.
His answer was that it was not now possible, but had been possible until the institution of the כתובה. This innovation was actually done in order to make one-night marriages impossible. Unfortunately, this had the side-effect of making marriage too expensive, and as a result people stopped marrying! So the Sages then changed the way it the כתובה works to the present system, where the it does not involve an actually payment but is instead a promissory note.
How to deal with the Toraitic prohibition on ממזרים (bastards) being part of the community?
ממזרות (bastardy) in Judaism does not mean a child born out of wedlock, but a child born out of a specific list of prohibited unions. This is a much narrower category, but causes problems, because the child of a ממזר of either sex is a ממזר too: a child with low status inherits the lower status of its parents. Also a ממזר can't marry within Judaism. Hence it looks like anyone unfortunate enough to have been born a ממזר is doomed to be excluded from the pale through no fault of their own.
However, this is not the case. An ingenious legal loophole has been devised to get around this, by which the normal partner buys the ממזר. Their children inherit the lower status of the two, i.e. are slaves. The free partner then sets them free and they lose all discriminatory status. Cunning, eh?
[Except that R. Jeremy Gordon says there are reasons why this will not work in practice! See further my notes on his session How to be a Mamzer.]
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no subject
Date: 2005-10-26 09:15 pm (UTC)I think that 'אלא גיורת ומשוחררת ' means a divorcee, but don't hold me to it...
no subject
Date: 2005-10-26 10:14 pm (UTC)Ah, found something. I think it means a woman freed from slavery. Does that make sense for you?
no subject
Date: 2005-10-26 10:20 pm (UTC)Interesting that your article has no clause for a divorced woman though, as it's also a possible status
(not to mention widowed)
no subject
Date: 2005-10-27 06:15 pm (UTC)Jastrow (http://www.tyndale.cam.ac.uk/jastrow/) doesn't mention divorce in any of his citations (http://www.tyndale.cam.ac.uk/Jastrow/PDFs/1552.pdf#zoom=100).
Interesting that your article has no clause for a divorced woman though, as it's also a possible status (not to mention widowed)
Good point. Sadly, the original שיור is now sufficiently long ago that I can't remember whether there was a reason why these were not mentioned.
no subject
Date: 2005-10-27 07:12 pm (UTC)Hey, Hebrew is the only language I get to be pedantic regarding with, so... ;)
no subject
Date: 2005-10-27 07:23 pm (UTC)no subject
Date: 2005-11-15 02:45 pm (UTC)Because divorcees and widows aren't sufficiently interesting to merit a whole different section. The only difference has to do with their marrying cohanim (and dowry size), and that's not really relevant here. In terms of actual status of women they're basically the same as regular women.
no subject
Date: 2005-11-15 02:38 pm (UTC)no subject
Date: 2005-10-27 09:01 pm (UTC)More seriously, thanks for this. I have looked at some of these issues but a long time ago, and there were definitely bits I didn't know, the mamzer stuff particularly. I don't find the idea of nominal slavery particularly appealing, but it is true that mamzerut is a serious issue in certain sections of the community, so I suppose it's better than nothing.
We really need
But I may be misremembering the words and I have no idea how to spell them in Aramaic. The fact that
bli chevruta tamuta
Date: 2005-10-28 08:56 am (UTC)Send me the email! I like email.
Re: bli chevruta tamuta
Date: 2005-10-28 09:19 am (UTC)no subject
Date: 2005-10-28 08:56 am (UTC)Cohanim
Date: 2005-11-05 11:43 pm (UTC)I had session about who is a zonah as well. I don't like that definition. Nowadays nobody is locked up in one's parents house anymore. Everybody gets out before they get married. As people usually go through several relationships with boy-friends every woman would be a zonah. But this not fair and can't be related to our time.
S.O.
Re: Cohanim
Date: 2005-11-06 12:01 am (UTC)PS: You should have clicked to comment on my post, not
Re: Cohanim
Date: 2005-11-06 12:30 am (UTC)S.O
Re: Cohanim
Date: 2005-11-06 10:51 am (UTC)You should get yourself a LiveJournal account. That way you can get automatic email notification if someone follows up to a comment you make, like this. You don't need to post anything yourself if you don't want to. It's free, too.
Re: cohanim and virgins
Date: 2005-11-15 02:48 pm (UTC)Re: cohanim and virgins
Date: 2005-11-15 06:07 pm (UTC)cohanim and virgins
Date: 2005-11-06 12:40 am (UTC)Re: cohanim and virgins
Date: 2005-11-06 10:59 am (UTC)Re: cohanim and virgins
Date: 2005-11-14 03:33 pm (UTC)Re: cohanim and virgins
Date: 2005-11-14 06:43 pm (UTC)*beams* I spend a lot of time typing up my notes from the Jewish learning events I have been to (http://www.michael-grant.me.uk/limmud.html) in the last year; it's always gratifying to get feedback from outside the small number of people I know read these, demonstrating it was worth my while to type it up and put it online.
I've been mulling over these issues myself recently. The part that puzzles me the most is the definition of Zonah, in relation to who is marriage-to-Cohenworthy as being "a woman who has had relations with a man she is forbidden to marry." Now what I am finding hard to understand is why some commentators translate this to mean non-Jew? Even if you take it to mean from the "Gibeonite" tribe, who has even MET a Gibeonite descendant let alone fraternized with one.
I don't know about this, myself; nor where your source text is, I'm afraid.
Am interested in the United Synagogue's view primarily since several people on this thread are from the U.K.
I can't really help you out; I wasn't really into Jewish learning when I was Orthodox. I shall prod
Re: cohanim and virgins
Date: 2005-11-14 07:35 pm (UTC)This is why cohanim can't marry converts, also. All female converts are assumed to have had sex with non-Jews before they converted, and even though you mostly get a clean slate when you convert, you don't get a clean slate regarding that. That's why converts' ketubah amounts are less - they're assumed not to be virgins.
I would imagine the United Synagogue would approach it halachically, which means that if it was proved beyond all doubt that Mrs Cohen had screwed non-Jews in college, Mr Cohen would be required to divorce her. But there's a halachic principle which says you can't testify against yourself, so if Mrs Cohen said she screwed around in college, that has no halachic weight and they don't have to get divorced. Yes, if you got two kosher witnesses who actually saw Miss Israel (as was) screwing Mr Non-Jew, that would carry halachic weight and they'd have to get divorced, but (this is gorgeous) kosher witnesses have to be halachically observant, and no nice frum Jew would be watching other people having sex! And suspicion doesn't require you to go check it out, halachically, so only somebody who was either excessively frum or really REALLY mean would go scrabbling around looking for witnesses that Miss Israel screwed around in college.
What I'm getting at is that I doubt the U.S. ever has to deal with such a thing.
Re: cohanim and virgins
Date: 2005-11-15 04:34 am (UTC)A couple of questions:
(1) What kind of authority is Steinsaltz? I never heard of him before. Also, is he following Rashi, Rambam, Shulchan Aruch or everything?
(2) I never heard about not being able to testify against yourself, that's interesting, where is that derived from?
Thanks!
Re: cohanim and virgins
Date: 2005-11-15 02:07 pm (UTC)Not testifying against yourself - uhrm...I ought to know better than I do. Maybe that's only in capital cases, actually - I think in civil cases we don't believe you straight off, but if you're saying something negative about yourself that you wouldn't be saying unless it was true, you need another witness (I think maybe only one actually) before we believe you. It's probably all in Sanhedrin somewhere and they probably derive it from Torah (as opposed to making it up completely). I don't remember. It's conceptually where the Fifth Amendment comes from, so far as I know.
Re: cohanim and virgins
Date: 2005-11-15 09:06 am (UTC)no subject
Date: 2005-11-15 03:06 pm (UTC)Divorcee - grusha in Hebrew, m'tar'hha in Aramaic.
Widow -'armalah in Hebrew,'armalta or armala in Aramaic.
You forgot halutza, which I imagine would be halutzta but I couldn't find it in my Aramaic dictionary.
You can also say kalta, kallah, if you don't think your sexual history is anyone's business.
no subject
Date: 2005-10-27 09:11 pm (UTC)The pre-nup thing is more or less already built into the ketubah system; I feel it would only need a little tweaking, really, to make giving a get in appropriate circumstances a standard condition of the ketubah. But I don't see why the marriage should be annulled, rather than ended with an externally imposed divorce. Unless it's something about the marriageability of theoretically unmarried women as opposed to divorcees, but that does seem a bit overkill.
no subject
Date: 2005-11-15 02:36 pm (UTC)The thing about externally imposed divorces is that to be valid the get still has to be given by the husband. For men it's different; if a woman won't consent to a divorce (so the man is the agun), he can collect a hundred rabbis who will impose a divorce, but for a woman, no good. The bet din can say that the man must give a get, but he's quite at liberty to ignore them, since they have no legal clout (and even in Israel, some men would rather go to prison than give a get). Some batei din, the good ones, will impose sanctions on men who won't give gittin, and sometimes that works, but of course the man can always just move house. Agunah organisations try and mobilise communities to ostracise such men, the idea being that if they're sufficiently embarrassed they'll give in.
That is to say, it's a heck of a lot easier to decide retrospectively that the marriage was invalid. The Mishnah talks about that sort of thing - if the wife discovers after marriage that her husband is truly revolting (has a loathsome disease or a job which makes him smell bad), she can say "I never thought it would be like this" and the kiddushin is annulled because of her having entered into it on mistaken understanding.
The chareidi position, oh-so-conveniently, is more or less that annulling the marriage isn't valid and coercion into get-granting isn't valid and oh, by the way, there isn't an agunah problem, people just think there is because of some stupid women making a fuss because they've been infected with feminist values from the outside world. So that's all right then, isn't it? It also says in the gemara that any woman would rather be in a bad marriage than be single, and if the gemara says so, who are we to contradict it?
bad marriage or single
Date: 2005-11-27 05:15 pm (UTC)S.O.
Re: bad marriage or single
Date: 2005-12-09 04:16 am (UTC)Re: bad marriage or single
Date: 2005-12-09 10:00 am (UTC)Odzywki
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