Double Mitzvah – Mishpatim

Written by Maya B. Alma. Maya B. Alma is Jewrotica’s new Double Mitzvah columnist!

Check out last week’s column, Double Mitzvah – Yitro.

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are…called into question by today’s decision.
Justice Antonin Scalia

It was only last week that I kicked off my commentary on Parashat Yitro with a Jimmy Carter quotation about adultery. Now, Scalia? I promise (b’li neder), no political quotes next week.

But the Supreme Court Justice, dissenting in Lawrence v. Texas, the 2003 case which overturned state laws banning sex between two men, offers a perfect example of the slippery slope argument that arises around the question of equal marriage. People who believe in the cause of equal marriage, or have a generally sex-positive outlook, are sometimes challenged: if that arrangement, or act, is allowed, why not this one?

The Bible is often cited by those who would see society on a slippery slope toward some kind of dystopian world of sexual depravity and abuse. All of these things are banned in its pages; of course making one legal opens the door to legalizing all the others. It’s but a short step from two men, or two women, forming a consensual and loving relationship and building a family, to “man on boy, or man on dog,” as then-Senator Rick Santorum put it in a notorious interview from 2003. (To be fair, he was actually drawing a distinction between consenting adults and those scenarios, while making the argument that none of us, including heterosexual married couples, have a right to privacy. Which is even worse.).

This week’s parashah, Mishpatim, takes us right to the heart of the matter. And for those of us who would push back against the Santorums and Scalias of the world, the verses in question, as read by one particular Jewish commentator, make for interesting reading.

Let me be clear: I’m not suggesting that ibn Ezra would have been in favor of equal marriage. Ultimately, I think the best arguments for equal marriage lie outside of the Bible, in the “text-people,” our friends, our family members, ourselves, who have formed loving relationships and families. But when people draw invidious comparisons, it helps to show them certain laws in their proper context. It also helps to remember that nearly a millennium ago, others saw them in the same light.

Here then, as a public service, are verses from this week’s portion, with the commentary of Rabbi Abraham ibn Ezra (1089-1164). First, the text:

If a man seduces a virgin for whom the bride-price has not been paid, and lies with her, he must make her his wife by payment of a bride-price. If her father refuses to give her to him, he must still weigh out silver in accordance with the bride-price for virgins. You shall not tolerate a sorceress. Whoever lies with a beast shall be put to death (Exodus 22:15-18).

And now, selections from the commentary:

If a man seduces. Torah has finished speaking (in the previous fourteen verses) about theft of property, and now begins to speak about “theft of the heart,” which is seduction. The seducer preys upon young girls (na’arot), whose da’at (here best translated as “capacity to make an informed decision”) is not yet fully formed.
A sorceress. What is the reason for mentioning this after the law about the virgin? Because appetites that want to be fulfilled work magic upon us, casting a spell.
Whoever. Torah first mentioned the seduction of the young woman who can’t actually form an opinion and make a decision. Now it mentions the beast, who cannot cry out (as a woman can). And elsewhere (Deut 22:24-27), it mentions the case of the woman who is able to cry out.

Taken together, ibn Ezra’s comments form a mini-essay on the theme of informed consent, and show us the absurdity of the slippery slope argument when applied to equal marriage. Entering into “relationships” with children who are not yet able to understand what’s happening, abusing voiceless animals, using violence as if it were love…indeed chasing any appetite that leaves victims in its wake: are all forms of theft, and have absolutely nothing to do with relationships formed by consenting adults.

This isn’t a novel idea imposed upon the text during permissive times by activists with an agenda. It’s the conclusion of one of the great pashtahim, a Jewish “originalist” who wanted to know: what do the words actually mean to say? Justice Scalia, take note!