Sex and the single Jew
Jewish sources have a lot to say about marriage, divorce and forbidden sexual acts, but talk very little about single people, relationships and sex. Sex between two unmarried people is not included in the Torah’s lists of forbidden sexual practices (which include adultery, incest and many others), but this kind of relationship is clearly frowned upon by normative Jewish tradition. While this makes sense in the context of a conservative, religious culture, it poses a challenge in contemporary society where people stay single longer and over 15 years are likely to pass between the onset of sexual maturity and marriage.
Given Jewish law’s tacit disapproval of non-marital sex, when people choose to engage in it are they essentially entering into a ‘Judaism-free zone’? Alternatively, can we glean any meaningful guidance about this near-universal phenomenon from the tradition?
One answer to this question was in a 1990 ruling by the Israeli Masorti movement’s Jewish law committee, written by Rabbi Pesach Schindler. Asked whether it’s permissible for a single man and a single woman to establish a long-term sexual relationship without getting married, Rabbi Schindler declares unambiguously that Jewish law prohibits this. He concludes his ruling: ‘In an age in which the Jewish family is threatened, we must more than ever defend the central pillars of the Jewish family – erussin and kiddushin – that have sanctified the Jewish people for thousands of years. We must influence the young couple through gentle persuasion to become sanctified by our sacred tradition so “that Zion may rejoice in her children.”’
Given that sex between single people is not explicitly prohibited by the Torah, what is this ruling based on? The Tosefta, a collection of early rabbinic traditions, provides a source: it states in the name of a Rabbi Lazar that the biblical prohibition ‘Do not corrupt your daughter to be a prostitute, lest the land fall to prostitutionand the land become full of foulness’ (Lev 19:29) refers to a single man who has relations with a single woman not for purposes of marriage. Rashi, the pre-eminent medieval biblical and talmudic commentator, agrees that the verse implies a ban on sexual relations between unmarried people.
Maimonides, perhaps the most important legal authority of the middle ages, also forbids extra-marital sex, but bases the prohibition on a different verse (Deut 23:18): ‘No Israelite woman shall be a kadesha’ (a kadesha, literally translated, was a prostitute or, more specifically, a temple prostitute in the ancient Canaanite fertility cult). Following Maimonides, normative halachic (Jewish legal) tradition endorses not only the prohibition on casual or licentious sex, but also on sexual relations which are performed as part of a committed relationship. This is despite the fact that the Mishna, the earliest comprehensive source of Jewish law, declares sexual intercourse to be one of the three acceptable ways of contracting a marriage. Thus the 16th century Shulhan Arukh, the most authoritative Jewish legal code, rules: ‘A woman is only considered to be married as a result of a properly conducted ceremony. If someone has sexual relations with a woman in the manner of prostitution, with no aim of marriage, this has no bearing [on her marital status]. And even if sexual relations take place with the aim of marriage, she is not considered to be his wife, even if they have spent time alone together. On the contrary: he is compelled to remove her from his house.’
The normative halachic bottom line on sex outside of marriage certainly backs up Rabbi Schindler’s ruling. However, the tradition also encompasses dissenting voices. For example, the following Talmudic passage directly takes on the view of the Tosefta: ‘Rabbi Elazar [presumably the same as the Tosefta’s Rabbi Lazar] says: an unmarried man who has relations with an unmarried woman with no aim of marriage makes her into a prostitute; Rav Amram said: the halacha is not according to the opinion of Rabbi Elazar.’ Quoting this statement, the medieval commentator Nahmanides writes, ‘I do not understand [Rashi’s] view, as ‘prostitution’ in the Torah does not refer to sex with any single woman, as the halakha rules: an unmarried man who has relations with an unmarried woman with no aim of marriage does not make her into a prostitute.’ In this light, the Torah’s prohibition of prostitution has no bearing on the more general question of sex between two unmarried people.
Rabbi Moses Isserles, in his authoritative 16th century commentary to the Shulhan Arukh, calls into question the idea that sex can never be used to cement a legitimate relationship: ‘There are those who say that if an unmarried man and an unmarried woman have sexual relations in the presence of witnesses [who can testify to the couple secluding themselves in a closed room together rather than actually watching them have sex], it should be suspected that the man intended marriage, in light of the assumption that a man does not generally have promiscuous sexual relations.’ This assumption, according to Rabbi Isserles, holds true unless the man has a reputation for casual sex or already has another wife.
Rabbi Schindler quotes several of these potential loopholes in his ruling but, rather than using them as an opportunity for a more nuanced discussion of the issue, ultimately comes down unambiguously against extra-marital sex. While his ruling is both clear and reflective of normative Jewish practice over the centuries, it raises a serious problem for contemporary Jews. By ignoring the fact that the vast majority now have sex before they get married and are unlikely to be dissuaded from doing so by a rabbinical ruling, it sets itself up for failure, as a ‘decree which the public is unable to adhere to’. Many contemporary Jews, committed to the value of individual autonomy, are also likely to take issue with the legalistic framing of the question. Is such an intimate, personal issue really best dealt with in the black and white, authoritative terms of halachic argumentation?
These issues are taken up by Rabbi Elliot Dorff, professor of philosophy at the American Jewish University and Chair of the American Conservative movement’s Committee on Jewish Law and Standards. In his book Love your neighbour and yourself – a Jewish approach to modern personal ethics, Rabbi Dorff describes Jewish attitudes to sex in terms of a spectrum, with forbidden activities such as adultery and incest at one end, and sanctified ones – essentially sex within marriage – at the other. He locates consensual sex between loving, committed, but unmarried partners somewhere in the middle of the scale. While Rabbi Dorff is adamant that marriage is the best setting for fully living out the Jewish values connected with sexuality, he also accepts that some of these ideas can be partially expressed through sex outside of marriage.
What are these values?
Seeing oneself and one’s partner as human beings created in the image of God means that sex cannot be seen as a purely physical act – it has implications for our sense of self and must reflect our value systems and the personhood of our partners. While Jewish tradition sees sexual pleasure as a divine gift, we need to ensure that the way we derive this pleasure adds to our humanity and does not end up being animalistic. Seeing ourselves in the image of God is connected to the value of modesty: sexual activity should be conducted in private and should not be discussed in ways which demean one’s partner. ‘Bragging about one’s sexual conquests,’ writes Rabbi Dorff, ‘lacks both modesty and decency.’
This kind of respect for others also has wider implications. Minimally it means that sex must not be coercive. More broadly it means that we mustn’t lie, deceive or manipulate (dishonestly saying ‘I love you’ for example) in order to gain sexual satisfaction. Respect for others also implies honesty and fidelity. While marriage by itself cannot guarantee that sexual relations will be respectful, honest and faithful, Rabbi Dorff believes that the ‘deep relationship that marriage betokens makes it more probable that the two partners will care for each other in their sexual relations as well as in all of the other areas of life.’ He continues: ‘If one is not married, sex cannot possibly symbolise the same degree of commitment. Unmarried sexual partners must, therefore, openly and honestly confront what their sexual activity means for the length and depth of their relationship.’ In practical terms, this means we should avoid short-term sexual encounters and, instead, restrict sex to long-term, committed relationships.
Other practical values mandated by Rabbi Dorff include health and safety – taking care of our own and our partners’ bodies by preventing the spread of STDs and AIDS through disclosing our sexual histories, HIV testing, using condoms and restricting the number of sexual partners. These steps are connected with one of the most important Jewish values – pikuah nefesh or saving life. Similarly, unmarried couples should bear in mind the risk of unplanned pregnancy, even with the use of contraceptives. Abortion is not prohibited by Jewish law, especially when the mother’s life or health are at risk. But, both because a foetus is considered a potential life and because of the psychological consequences involved, abortion should be avoided and certainly not used as a form of retroactive contraception. Couples engaged in extra-marital sex must carefully consider the implications of an unplanned pregnancy.
Finally, unmarried couples are advised to consider the Jewish quality of their relationship. Just like married couples, they should discuss their attitudes to kashrut (dietary laws), Shabbat and festival observance, and to the kind of Jewish home they want to create. In addition, Jews are urged to date other Jews exclusively. This position stems not only from the contemporary phenomenon of assimilation and the fact that as many as 82 percent of the children of intermarried couples in the United States are not raised as Jews, but from the idea that the challenges of maintaining a relationship intensify when partners come from different religious and cultural backgrounds (Dorff quotes a study which shows that divorce rates double among intermarried couples).
Rabbi Dorff is adamant that Jewish norms should infuse every aspect of our existence – including and perhaps especially the most intimate areas – but emphasises that these norms are not all-or-nothing things. Rather, it is up to individuals to bring Jewish meaning to their lives by striving to connect their behaviour to Jewish values wherever possible. Sometimes he draws seemingly inconsistent conclusions – he robustly defends the institution of marriage and insists that teenagers refrain from sexual intercourse, while simultaneously recommending masturbation as the ‘morally and Jewishly preferable choice’ and taking an extremely liberal, inclusive line on the place of gays and lesbians within the Jewish community. This position could be attacked as a wishy-washy attempt to gloss over the specific, plain meaning of our textual tradition in order to create a superficial connection between the two irreconcilable worlds of Jewish tradition and modern society. In fact, Rabbi Dorff’s approach represents a willingness to depart from the dichotomous, authoritarian tone of much legalistic thinking and to combine the tools of halacha (Jewish law) and aggada (non-legal stories and ideas) to construct an approach to these sensitive issues which is at once wholly contemporary and convincingly Jewish.
Sources and further reading
Rabbi Pesach Schindler, ‘Extramarital Relationships’ in Va’ad Ha’Halakhah (volume 4, 1990-92). Full Hebrew text and English summary online at www.responsafortoday.com.
Rabbi Elliot Dorff, Love your neighbour and yourself – a Jewish approach to modern personal ethics, Philadelphia: Jewish Publication Society, 2006, pages 111-126.
The following primary sources have been quoted in this article:
Tosefta, Tractate Kiddushin, 1:4
Babylonian Talmud, Tractate Yevamot, 61b
Rashi, Commentary to the Torah, Leviticus 19:29
Nahmanides, Commentary to the Torah, Leviticus 19:29
Maimonides, Mishneh Torah, Laws of Marriage 1:4
Shulhan Arukh, Even Ha-Ezer 26:1
Rabbi Moses Isserles, commentary to the Shulhan Arukh, Even Ha-Ezer 33