This week’s portion A’ch’arei Mot – literally, “after the death,” as in after the horrific death of the two sons of Aharon for sacrificing the “foreign fire,” discussed in the portion of “She’mi’ni” several weeks back, which is still mentioned as having a lasting effect – is the first of two portions that deal with the complex, troubling, and important issue of restricted sexual behavior, in particular that of incest and homosexuality. I will dedicate a few words to each.

I. The Laws of Incest: What, and Why

The laws of incest play a major role – both in this week’s portion and that of the next. In the first portion we read the restrictions themselves; in the second, we learn about the punishment. Let us begin with the restriction. Our portion begins with a general statement about incest, followed by an impressive line of specific examples. The general restriction reads: “Each and every one of you shall not come near anyone of his own flesh to uncover nakedness, I am the Lord.” (Levit. 18:5). This general restriction should, in my mind, be first and foremost understood as the paradigmatic restriction on parents from having any sexual relations with their children, either sons or daughters. Somewhat shockingly, this specific example is missing from the long list of specific examples provided by the text. Since parent-child is not only the most pervasive form of incest, it is also the most perverse, it should be granted with a special status among the laws of incest. Indeed, many children view their parents – as they should – as the ultimate moral authority, higher than any book they read or external authority they encounter. When that authority orders them to perform a certain (perverse) act, it often takes years for those children to realize that it was wrong morally (and today, an egregious violation of the criminal code). Accordingly, the text’s general prohibition on incest should be interpreted, in my mind, as a general restriction on parent-child sexual relations.

The general restriction is followed by an impressive list of less obvious examples of sexual offenses within the family, including a restriction on Oedipus’ Complex (“You shall not uncover the nakedness of your … mother” Levit. 18:7), on sexual relations with other wives the father may have, with sisters, with grandchildren, with aunts, uncles, daughters-in-law, sisters-in-law, and others.

Next week’s portion (“Kedoshim”) consists of a similar – though not identical – list of restrictions, this time with the penalty attached. And that penalty – no surprises here – is mostly death, and for both parties involved. For example, “And a man who shall sleep with his father’s wife, exposing his father nakedness, both of them shall be put to death their blood upon them” (Levit. 20:11); “And a man who shall sleep with daughter-in-law, both of them shall be put to death… (Id. 20:12); “And a man who shall take a woman and her mother, it is lewdness, in the fire they shall burn him and both of them…. (Id. 20:14). One may question the justification of killing both parties to the act; both common sense and life experience reveal that in most cases, it was one party who had the upper hand in suggesting – sometimes forcing – the other party to perform the act, sometimes completely hiding from the other party the fact that the act is completely forbidden. But I will lave these (and other) questions unanswered, as this topic deserve a much more comprehensive treatment.

Other than the actual restrictions – the “what” – contained in these two detailed lists, a much more interesting notion is the reasons provided for them – the “why.” Here we encounter the religious (as opposed to merely moral) explanation as provided by God himself to these restrictions.  The first explanation provided by the text is that the Children of Israel should not replicate the customs and laws of other people, in particular those of Egypt (where they have left) and of Cna’an (where they are about to arrive). Apparently, in both countries these amoral acts were prevalent. Rather than following their acts and laws, God emphasizes, the Children of Israel should follow God’s laws and rules – in live by them. That is the fist explanation to the restriction. (Levit. 18:3-4)

The second explanation is more “new age-y,” and relates to the response of the earth itself to the pervasiveness of these forbidden acts: “And the land became defile, impure, … and the land has spewed its inhabitants” (Levit. 18:25). This is a fascinating humanization of the land, and a wonderful demonstration of the symbiotic relationship between host (land) and its guest (we, the people); when we act in a despicable manner, in a way that the land itself may not tolerate, that same land may punish us by not letting us continue inhabiting it. This relationship is particularly worthy to notice on Earth Day (which we all celebrate next week).

Thus, the restrictions on incest are not reasoned by moral decree or by social reasons – such as the need to protect the weak and the young among us; rather, it is reasoned by religious notions (“act by the rules of God”) and “earthy” explanations (“beware of the land for she might spew you out”). I find both these lines of reasons, as well as the punishment by death of both parties to the act, lacking. But, as I have mentioned before, this should be the subject of a much more in-depth treatment.     

II. The Laws of Homosexuality: A Part of Incest?

Other than the rules of incest – which, until today, are accepted as both immoral and criminal acts – this portion and the next contain the restriction on homosexual acts. As with incest, the general restrictions appears in our portion – “And a male person you shall not sleep the way you sleep with a woman; it is abomination” (Lev. 18:22); while the punishment – death, of course, of both parties – appears in next week’s portion: “And a man who shall sleep with another male the way he sleeps with a woman – both have committed abomination, both shall be put to death their blood is upon them.” (Lev. 20:13).

Now, read within the context of the laws of incest, the rules of homosexuality make absolute sense: Within the family, you cannot have sexual relations either with a member of the opposite sex, or a member of the same sex. The punishment for both acts should be precisely the same.

But what about homosexual acts outside the family? Acts between two complete strangers who wish to perform them voluntarily? For thousands of years, these two verses I have just quoted were considered the absolute restriction against such acts in Judaism. In fact, according to the Halacha, the committing of homosexual acts are one of just three “Karet” restrictions: “Ye’ha’reg U’bal Ya’aavor” – a person should be killed and still not choose to violate those three.

But in recent years, both criminal codes – both in Israel, the United States, and elsewhere – and, though much more slowly, moral codes and norms around the world began to get accustomed to the notion that there is nothing wrong with free, voluntary, homosexual acts. In fact, none of reasons that were mentioned in the early times for justifying such an odd restriction – the fear of discontinuing of the human race, or the fear that too many women would be left alone, and others – have survived minimal scrutiny.

Still, the religious restriction – and its heavy punishment – is alive and kicking. True, the Reform Movement in Judaism has begun to acknowledge, slowly and gradually, the act of marriage between two men (and two women, which is much easier from an Halachic perspective), and by that to provide legitimacy to the act of homosexuality itself. Then again, I am aware of no serious attempt to provide “hechsher” to the act in Judaism, that is – to claim that the Torah allows it. This is somewhat surprising, as many things written in the Bible that our sages didn’t like – anything from restrictions on demanding interest on loans to the restrictions on sale of bread in Passover – have garnered very “creative” interpretations, to say the least, such that Jews throughout the ages were able to go around those restrictions. To be sure, I am all in favor of such interpretations, so long that they allow people to adjust to the changing social and moral requirements of the community. But it is time to provide such “creative” interpretation to the restriction on homosexuality itself; it no longer serve any discernable function, either religious or otherwise.

Thus, it may be argued that homosexuality is forbidden only to the extent that it is included within the law of incest; only within the family no one is allowed to have sex with members of the same gender. This restriction, in effect, comes only to remove all doubt that not only fathers and daughters (for example) cannot engage in sexual behavior, but also fathers and sons. That way, the restriction still maintains its moral – and legal – justification, while at the same time releases approximately one tenth of the Jewish population for a restriction that encumbered them for thousands of years. Any Rabbi that you know that is willing to pick that one up?

Shabbat Shalom

Doron