Toward a Taxonomy for Reform Jews to Evaluate Sexual Behavior

Jonathan A. Stein

Judaism regards appropriate sexual behavior as a mitzvah, a sacred human activity potentially imbued with qedushah. Jewish tradition generally views human sexuality as inherently positive and joyous. Like every human capacity, sexuality is considered a gift from God and is, therefore, a legitimate good, provided that it is exercised in faithful acceptance of a Divine purpose and in reverent awareness of God's presence. Human sexual behavior is understood as both the means to procreation--the fulfillment of the Torah's first mitzvah, "Be fruitful and multiply"¹ --and, in the right context, a way to experience physical delight and pleasure. The proper sexual relationship is one that serves both to express and to further, on an enduring basis, the mutually responsive and responsible love of two people who act in accordance with the teaching that each has been created in God's image.

At the same time, precisely because it is such a primary and central aspect of our existence, human sexuality also contains within it the potential for destructive behavior. Sexuality that is expressed with actions that lack moral values can be hurtful or obscene. The very same physical joy that sexual activity brings contains within it the seeds of temptation to engage in expressions of sexuality that can be unethical and sinful. The rabbinic tradition came to understand this temptation as an aspect of the yetzer ha-ra', the "evil inclination," an innate, natural part of our humanity. According to Solomon Schechter, one of the great passions that the yetzer ha-ra' plays upon is the passion of sin known as y'tzirah d'aveirah, "the inclination toward sexual immorality."² The rabbis understood well that the sexual manifestation of the yetzer ha-ra' is an extraordinarily powerful force in human life and is, therefore, potentially dangerous. Judaism has always understood and acknowledged how difficult it is for human beings, created by God with strong sexual desires, to channel their sexual behavior. And so Maimonides writes that "No prohibition in all of the Torah is as difficult to keep as that of forbidden sexual relations."³

Ironically, this same yetzer ha-ra' also plays a crucial and even critical role in human life and in society. When the midrash examines the verse "And God saw everything that God had made and behold, it was very good,"⁴ the rabbis ask the question, "Can even the yetzer ha-ra' be considered 'good'?" The famous answer is that "Were it not for the 'evil inclination', no one would build a house, or marry, or have children, or take a job."⁵ Thus, our yetzer ha-ra' is, like sexuality itself, simultaneously a Divine gift with the potential for blessing, and yet one of our greatest human challenges.

In recent decades, we have increasingly come to recognize that sexual behavior is always imbued with significance, whether morally, psychologically, or both. Our sexual behavior has potential consequences for our self-image and for our relationships with other people. In our age, irresponsible sexual behavior can lead too easily to disease and death. Judaism understands that human sexuality reaches its heights in a faithful, covenantal relationship undergirded by a deep emotional commitment, as the ultimate expression of the most intimate of human bonds between two loving people, and as a deeply spiritual, not merely physical, activity. If our sexuality is expected to reach its potential for personal fulfillment and moral content, its expression should not ever be casual. Such an attitude would be anathema to Jewish values. And so, because of the many moral and psychological risks that are involved in human sexual behavior, Judaism has historically imposed discipline upon this area of life, setting boundaries and limits that are intended to safeguard from abuse both the people involved and human sexuality itself.

Judaism has set these limits within the framework of the mitzvot. Our tradition's way of thinking about life is distinguished from those in other religious systems, in part, by the notion of mitzvah. In general, the mitzvot are a system of ethical and ritual demands based upon the performance of proper behaviors; proper feelings and intentions are not their primary goal.⁶ "Our tradition has generally refused to collapse the moral distinction between harboring impious thoughts and feelings and doing irresponsible deeds. One of the marks of moral dignity is the demonstrated capacity to control one's sexual urges."⁷ For example, Jewish thought has refused to blur the distinction between (the apparently normal and universal human) feelings of lust and the transformation of lust into specific sexual activity that might be considered immoral. Sexual fantasies, while perhaps not ideal, are not, in and of themselves, considered sinful unless they are acted upon.

Because our tradition is fundamentally oriented toward proper behavior, Judaism has historically deemed it appropriate and even necessary to evaluate human actions. Judaism is not a value-free system of thought. Thus, sexual behaviors, along with all others, have been subject to judgment.

Yet, Judaism does not treat sinful behaviors, along with their various punishments, as if they were all equal. It seems clear that the various punishments detailed in the Torah for unacceptable sexual behaviors were in response to a perception of varying degrees of sinfulness. For example, certain behaviors mentioned in the Torah (adultery, incest, homosexuality, and bestiality) fall into the category later known as gillui arayot. ⁸ These were capital crimes punishable by death⁹ or karet, being cut off from the people, a social punishment tantamount to death. In both biblical and rabbinic times, however, other violations of sexual propriety were punishable in lesser ways. For example, a man who raped an unmarried woman paid a fine of fifty shekels to the woman's father as her "bride price" and then she became his wife.¹⁰ Some violations of the mitzvot in the area of sexuality were considered prohibited behaviors, but, nonetheless, punishable by lesser means. In the Mishnah, for example, several instances of sexual intercourse that seem incestuous in terms of Torah law (e.g., intercourse with one's sister) were punishable by flogging,¹¹ whereas certain other types of forbidden intercourse were punishable only by a rebuke. In the case of a pilegesh, a concubine who had dedicated herself to a particular man with whom she cohabited (in rabbinic terms, without benefit of qiddushin or ketubah), it is unclear whether a sexual relationship between the two was prohibited or permitted.¹² In either event, intercourse between a man and his pilegesh was not punished as severely as other extramarital situations.

Another example is that of a (woman) prostitute. Since biblical times, the prostitute was considered a devalued but accepted member of Jewish society. Maimonides said, "Even though it is permitted, one should not engage in sex with a (Jewish) prostitute, because she is likely to ignore the laws of miqvah and, therefore, spread ritual impurity."¹³ Rabbi Jacob Emden wrote, "If you have sexual relations with a prostitute, you should recite a legal formula that stipulates that the act of intercourse was bi-ah lo b'kavvanah, without the intention of it serving as a form of betrothal or marriage and therefore prevent her next relationship being adulterous."¹⁴

Even with regard to the sanctity of marriage, Judaism has never embraced a simplistic or absolutist moral tradition. Sexuality outside marriage, or not for the purpose of marriage, is acknowledged and dealt with as a deviation from ideal behavior, but not necessarily as a sinful sexual transgression warranting extreme punishment.¹⁵ In fact, Jewish tradition provides rules for extramarital sex. For example, the Torah forbids a (married) man a sexual relationship with a married woman (eshet ish),¹⁶ but defines lesser punishments for a relationship with an unmarried woman.

Thus it seems clear that Judaism has historically evaluated sexual behaviors and their punishments on a spectrum that varies from the highest ideal of heterosexual intercourse in the context of a loving marriage, children, and family, to offenses so sinful that they are punishable by death.

In our own day, in Reform Jewish thinking, we often find ourselves struggling to find an appropriate middle ground between the religious and ethical categories of traditional halakhah, on the one hand, and the challenge of secular society's moral relativism, on the other. The CCAR Ad Hoc Committee on Human Sexuality, basing itself on the concepts of Am Brit and Da'at,¹⁷ tried to straddle a position between the received Jewish tradition, with its defined categories of sexual behavior, and the ever-changing demands of contemporary American cultural values. In many ways, Reform Judaism seems to follow Rabbi Mordecai Kaplan's famous principle of giving the Jewish tradition a vote but not a veto. Many American Reform Jews seem to give contemporary mores even more than one vote.

One way to mediate this tension is to abandon the assumption that sexual behavior can be judged as simply "right" or "wrong," "moral" or "sinful," always either "good" or "evil." Rather, it may be preferable to evaluate human sexual behavior on a "hierarchical scale" employing a taxonomy¹⁸ of sexual behaviors.¹⁹ It is possible to justify the suggestion of a taxonomy based upon the two arguments already outlined in this paper: the historic Jewish understanding that there are varying degrees of sinfulness attached to sexual activity, and Reform Judaism's struggle to try to find an appropriate balance between the halakhic tradition and modernity. The above review of Judaism's spectrum of consequences and/or punishments for various sexual offenses gives grounding to a taxonomic approach as being organically related to the historic Jewish tradition.²⁰ Without attempting to detail formally a taxonomy of sexual behaviors, the tradition, in effect, created one. And at its very best, Reform Judaism takes seriously the Jewish tradition, honestly evaluates it in relationship to the needs of contemporary society, and then makes its own unique contribution, adding to and extending the tradition in creative and relevant new directions. This taxonomy is offered in that spirit and, therefore, as shalshelet ha-qabbalah, "a link in the chain of tradition."

A suggestion for a working model of a taxonomy for Reform Jews to evaluate sexual relationships and behaviors²¹ follows. Sexual behaviors could be evaluated as falling into one of six categories:

Qadosh ("holy"): a relationship/behavior that is both ritually sanctified and in consonance with the Reform Jewish sexual values as articulated by the CCAR Ad Hoc Committee on Human Sexuality. Examples: heterosexual and homosexual couples who have undergone a marriage or commitment ceremony and who also conduct their sex lives in accordance with these Reform Jewish sexual values.

Musar ("ethical"): a relationship/behavior that is in consonance with Reform Jewish sexual values or that exhibits commitment to specific aspects of those values but that has not been ritually sanctified. Examples: couples who live together without undergoing marriage or commitment ceremonies and who conduct their sex lives in ways that exemplify the ideals put forth in the Reform Jewish Sexual Values, the practice of safe sex, masturbation by people infected with HIV.²²

Mutar ("tolerable")²³ a relationship/behavior that does not violate Reform Jewish sexual values and that includes emotional involvement but not yet a permanent commitment and/or behavior that may be preferable to other sexual outlets. Examples: masturbation, mutually consensual sex within a monogamous and developing relationship.

Lo Kasher ("not proper"):²⁴ a behavior/relationship that does not exhibit Reform Jewish sexual values but that is performed between two consenting adults.²⁵ Examples: consensual sex between people who are not in the process of developing a committed relationship, sexually suggestive dress that does not fulfill the value of tz'niyut ("modesty").

Patur ("sinful") or assur ("prohibited"): a behavior/relationship that violates or contradicts the Reform Jewish sexual values. Examples: adultery, promiscuity.

To'evah ("abhorrent"): a behavior/relationship that is Patur or assur and also abusive, violent, or coercive, or violates certain historic Jewish and human societal norms.²⁶ Examples: rape, sexual abuse, pedophilia, incest, bestiality, exploitation.²⁷

Admittedly this (or any) attempt to formulate such a taxonomy is fraught with potential controversy.²⁸ Any effort to fit sexual behaviors into a taxonomy involves an attempt to resolve the tension between individual perceptions of universal values and their application in specific situations with their many variables and "gray areas." Therefore, people of good will inevitably disagree on how to evaluate specific sexual behaviors. Others may argue that any attempt to judge (sexual) behaviors is inappropriate because the very act of making judgment itself is problematic.

In addition, it may be impossible to define categories that allow us to evaluate all possible sexual behaviors to the satisfaction of each person's sense of sexual propriety. There may be other categories or nuances of definition that would allow us to better judge specific sexual activities. In this vein, it is worth considering the titling of the fifth category: Patur ("sinful") or assur ("prohibited"). In our day and age, and especially in view of the public nature of sexual discussion, it may be important to emphasize the theological value term Patur ("sin") in relationship to sexual values and specific sexual behaviors. On the other hand, assur is an historic Hebrew term used in halakhic discourse. Yet, "since a taxonomy of sin is not the point of this proposal, and assur is a category consistent with mutar,"²⁹ the choice is difficult.

In addition, during the development of this taxonomy, consideration was given to defining a seventh category that would translate as "neutral" as distinct from "tolerable." The former word carries no value judgment, while the latter does contain within it the implication, however slight, of toleration and/or acceptance. Perhaps there are sexual behaviors that some people would place in such a category, for example, masturbation. Such a category could fall between mutar ("tolerable") and lo kasher ("not proper").

Perhaps the Hebrew term pa_ur would fit. However, there seems to be no historic Jewish way of thinking about sexual behavior that opens up such a possibility. In addition, if it is true, as noted above, that "sexual behavior is always imbued with significance, whether morally, psychologically or both," then, perhaps, such a category would not fit into any taxonomy for evaluating sexual behaviors. We should also note that pa_ur "sometimes also understood as 'free', is certainly a value-laden concept in our world, because modern Western civilization values personal autonomy and freedom so much. The moment we give designation to such a category, ethically we may unwittingly be providing support for those who would argue in favor of seeing such a category as actually preferable, and the most fitting with modernity."³⁰

Nevertheless, this suggested taxonomy for Reform Jews to evaluate sexual behaviors may contain a number of strengths that will merit its consideration. These include (1) the advantage of any taxonomy, that is, that behaviors are understood as falling into a range of possible evaluations; (2) the use of traditional Hebrew words and value terms that will be immediately identifiable to Jews conversant in traditional halakhic categories and that help to root the taxonomy in historic Jewish values; (3) the distinctions between "holy" and "ethical" and also between "forbidden" and "abhorrent," which allow for subtle gradations of evaluation on either end of the taxonomy; (4) the possibility that such a taxonomy might be used as an educational tool for sexual decision-making, and not just for the purpose of abstract evaluation or judgment.

In addition, the use of a taxonomic approach to the evaluation of human sexual activity may afford Reform Judaism the opportunity to respond in a relevant, appropriate, and responsible manner to the contemporary realities of how many Jews, and especially the younger generation, actually live out their sexual lives. A large number of people today have independently reached the conclusion that black and white approaches to issues such as pre- and extramarital sex and homosexuality are too simplistic.

Making moral judgments concerning human sexual behavior is, at its best, problematic and difficult. This difficulty mirrors the intensity and complexity of human sexuality itself as well as the myriad ways in which individual sexual identity and desire, cultural mores, religious values, and opportunities for sexual activity intersect. In the world of traditional religious thought, sexual behavior is usually understood to be a very clear, all-or-nothing, right-or-wrong judgment. Ever since biblical times, however, Judaism has acknowledged, albeit tacitly and without the growing understanding of human behavior we have today, the complicated nature of human sexuality. Jewish attitudes toward human sexual expression have attempted to uphold fundamental values while simultaneously acknowledging the reality of human weakness and failure, as well as the possibility of teshuvah. Our tradition has never understood sexuality as a simple or easy set of expectations to follow or behaviors to judge. Thus, a taxonomy by which Reform Jews might evaluate and decide about the morality of sexual activity seems fitting. Our biblical and rabbinic predecessors bequeathed to us the quest for qedushah in all our actions. Qedushah is the highest ideal for sexual behavior offered in this taxonomy. The quest for holiness continues to be a most worthy standard by which we may judge all our actions.

Notes

1. Gen 1:28.

2. S. Schechter, Aspects of Rabbinic Theology (New York: Schocken Books, 1972) p. 250.

3. Hilkhot Issurei Biyah 22:18.

4. Gen 1:31.

5. Genesis Rabbah 9:7.

6. There are, of course, exceptions. Exodus 20:14 seemingly prohibits feelings of jealousy and Leviticus 19:17 urges us to deal with anger. The overwhelming majority of mitzvot, however, command us to perform specific behaviors regardless of our attitude toward them. They are not commandments to change our emotions.

7. Rabbi Samuel Karff in a January 1999 letter to the author.

8. Lev 18, 20.

9. Those offenses punishable by stoning include incest with a mother, stepmother, or daughter-in-law; those punishable by burning include incest with a stepdaughter, stepgranddaughter, mother-in- law, daughter, or granddaughter.

10. Deut 22:28-29.

11. Makkot 3:1.

12. Lev 19:20.

13. Sefer Tshuvot #284.

14. Responsum #15.

15. Lev 20:21.

16. Lev 20:10.

17. See Introduction to the CCAR Ad Hoc Committee's Sexual Values statement.

18. In his book Choosing a Sex Ethic (New York: Schocken Books, 1969), Rabbi Eugene Borowitz actually proposed a taxonomy without calling it by that term. The hierarchy that his argument takes up includes (from "lowest" to "highest") "Healthy Orgasm," "Mutual Consent," "Love," and "Marriage." Although they remain very different, there are certain similarities and parallels to this proposal.

19. I am indebted to Joel Grishaver for the inspiration of this idea. He wrote about it in an article on teenage sexuality in the fall 1993 edition of Jewish Spectator, where he credits Rabbi Bradley Shavit Arson for the concept.

20. In chapter 1 of Mishnah Kelim, the rabbis clearly outline a hierarchical approach to describe a range of levels of uncleanliness and holiness.

21. Some may object to the collapsing of relationships and behaviors together in this argument. This criticism has some validity. It is continued here only for the sake of simplicity.

22. Early in the deliberations of the CCAR Ad Hoc Committee on Human Sexuality, Rabbi Joseph Edelheit offered the insightful suggestion that we might consider masturbation by an HIV+ person as a moral act, in light of the need for especially safe sexual behavior in such a situation.

23. This English rendering of the Hebrew word mutar was the subject of lengthy conversation within the Ad Hoc Committee. Other possible translations suggested included: permissible, acceptable, and allowable. The decision to use "tolerable" indicates the committee's desire to indicate its basic disapproval of sexual behavior in this category.

24. Others have suggested using the Yiddish term pahst nisht ("unbecoming") for this category.

25. Other ways to phrase this might include: behavior that is unbecoming or unbefitting (a Jew), undignified or potentially degrading. In sociological terms, this would be behavior that is not in keeping with accepted standards of what is right or proper in a society. Some suggest that age and maturity play a crucial role here.

26. Taboo and stigma are especially powerful societal mechanisms for controlling sexual behavior.

27. The categories of Patur/assur and to'evah are offered against the backdrop of Judaism's insistence on the availability of teshuvah, repentance or atonement, the enduring possibility of human change and growth for the better.

28. The examples given here are not intended to be exhaustive. Many additional sexual activities/behaviors could be evaluated using such a taxonomy. Among others, these may include: abstinence, contraception, procreation, oral sex, public displays of affection, pornography, masochism, sadism, bisexuality, and transvestism.

29. From comments on this paper offered by Rabbi Laurence Elis Milder.

30. Milder, op. cit.

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