Halakhah su Deuteronomio 23:18

It may cogently be argued that yet another prohibition is associated with the act of cohabitation with a gentile. This prohibition is based upon Deuteronomy 23:18: "Lo tiheyeh kedeshah mi-benot Yisra'el ve-lo yiheyeh kadesh mi-benei Yisra'el." This passage is rendered in standard English translation as "There shall be no harlot of the daughters of Israel, neither shall there be a sodomite of the sons of Israel." Rashi, following one opinion presented in Sanhedrin 54b, does indeed understand the term "kadesh" as referring to a male prostitute who makes himself available for homosexual activity. Rambam, Sefer ha-Mizvot, lo ta'aseh, no. 350, records the latter part of this verse as an injunction against homosexual relations. However, this passage was not universally understood in this manner by Jewish exegetes. Rambam, Hilkhot Ishut 1:4, understands the first section of this verse as establishing a prohibition against fornication. Sexual intercourse between unmarried persons constitutes a violation of this commandment according to Rambam. Targum Onkelos translates this verse as follows: "No Jewish woman of the daughters of Israel shall marry a slave and no male of the children of Israel shall marry a female slave." Maharam Schick and others point to the fact that the verse in the original Hebrew does not specify cohabitation with a slave.⁵See commentary of Ramban, ad locum. They observe that Targum Onkelos speaks of a slave simply as an example of the type of sexual liaison to which reference is made. Instead of rendering a literal translation the Targum offers an example of a sexual relationship between individuals who cannot be united in matrimony with the implication that all comparable relationships are likewise included in the prohibition. Fornication between an unmarried male and an unmarried female does not fall within the scope of this prohibition according to the Targum because such persons are eligible to contract a valid marriage. The prohibition, for the Targum, is limited to a situation in which matrimony is halakhically precluded but includes cohabitation between any male and female who are halakhically incapable of contracting a valid marriage. A liaison between a Jewish male and a non-Jewish female slave or between a Jewish woman and a male slave is merely an instance of such a relationship. According to this analysis, Targum Onkelos' example of a slave serves as a general paradigm applying to all situations in which marriage between the two individuals is a halakhic impossibility. It follows, therefore, that since Jewish law does not under any circumstances recognize the existence of a matrimonial relationship between a Jew and a non-Jew, the prohibition "lo yiheyeh kadesh" is applicable in all cases of intermarriage.

Professor Silberg himself notes a number of objections which may be raised with regard to his proposal but expresses the hope that rabbinic scholars will somehow resolve these difficulties. In the first place, Rabad and other authorities take issue with the basic premise and assert that all forms of sexual intercourse between mamzerim and those of legitimate birth are proscribed. According to Migdal Oz, Rambam merely rules that the statutory forty lashes are not to be inflicted as punishment for cohabitation outside of the marital relationship; Rambam does not declare such cohabitation to be permissible. Migdal Oz asserts that, according to Rambam, such cohabitation is forbidden by rabbinic edict. Thirdly, Rambam himself maintains that the prohibition "There shall be no harlot among the daughters of Israel" (Deut. 23:18), encompasses fornication with unmarried women. Finally, it is not at all clear that concubinage can be sanctioned within the framework of Halakhah. Professor Silberg notes that the late Sephardic scholar, Rabbi Ya'akov Moshe Toledano, at one time advocated reinstitution of concubinage as a means of ameliorating certain social and halakhic problems but subsequently withdrew this recommendation. Actually, a similar suggestion was originally formulated by R. Ya'akov Emden, She'elat Ya'avez, II, no. 15, in response to the threat posed by the licentiousness of the Sabbatians. Needless to say, this proposal never gained wide acceptance within the community of rabbinic scholars.

Rabbi Soloveichik further argues that permitting the use of a mikveh for invalid conversions constitutes the violation of yet other biblical prohibitions. Ramban, in his Commentary on the Bible, Leviticus 19:29 and Deuteronomy 23:18, as well as in his glosses on Rambam's Sefer ha-Mizvot, shoresh 5, and mizvot lo ta'aseh, no. 355, declares that the verse, "There shall not be a prostitute from among the daughters of Israel, nor shall there be a prostitute from among the sons of Israel" (Deuteronomy 23:18), and the verse, "and the land shall not be filled with licentiousness" (Leviticus 19:29), constitute admonitions to the Bet Din forbidding it to allow liaisons between persons who cannot contract a valid marriage. Rabbi Soloveichik asserts that, according to Ramban, the prohibitions are not addressed solely to the members of the Bet Din, but devolve upon any person capable of preventing the acts in question. Hence, any person who facilitates a forbidden liaison of such nature is guilty of violating these two prohibitions. Permitting use of a mikveh for an invalid conversion serves to provide sanction for a conjugal relationship between a Jew and a person who, in reality, is a non-Jew and hence, concludes Rabbi Soloveichik, constitutes a violation of these prohibitions.

[For a man] to not have intercourse with males: To not have intercourse with males, as it is stated (Leviticus 18:22), "And with a male you shall not lay, the layings of a woman." And Rambam, may his memory be blessed, wrote (Sefer HaMitzvot, Mitzvot Lo Taase 350), "And this negative commandment about this very matter is repeated in another place, as it is written (Deuteronomy 23:18), 'and there shall not be a kadesh from the Children of Israel.'" It appears that the rabbi, may his memory be blessed, does not agree with that which Onkelos translated (Onkelos on Deuteronomy 21:18), "and a man of the Children of Israel shall not marry a woman maidservant" - the understanding of which is a Canaanite (gentile) maidservant. Rather, his opinion is that " there shall not be a kadesh" only comes as additional negative commandments for male homosexuality, [just] as there are several [other] warnings (negative commandments) that are repeated with different words. And I have seen about Ramban, may his memory be blessed, (Ramban on Deuteronomy 21:18) that he also does not agree with the translation, but would say that the negative commandment of "there shall not be a kadesh" comes to warn that we not allow there to be among us - the holy nation - a kadesh; and that is a man who is designated to lay with men, as is known about them in the lands of the Yishmaelites to this day. And because of this, it is stated "from the Children of Israel" - since we are not warned from this with the [other] nations. As if there was a kadesh from the nations - and even amongst us - we are not warned about him; as we are not warned (commanded) about others besides us, except for idolatry alone.

He prohibited us from sexual intercourse with a male. And that is His saying, "Any you shall not lie with a male as one lies with a woman" (Leviticus 18:22). And the prohibition about this exact content has already been repeated with His saying, "and there shall not be a male prostitute from the Children of Israel" (Deuteronomy 23:18). And that is the correct approach - that this negative commandment is repeated to strengthen it; and not that it is a prohibition about the one who receives intercourse. Rather, we learn from His saying, "You shall not lie," [both] about the one who lies and the one who is lain with. And in the Gemara, Sanhedrin (Sanhedrin 54b), it is explained that it is Rabbi Yishmael that positions, "and there shall not be a male prostitute," as a prohibition for the one being lain with. Hence one who has sexual intercourse with a male and has a male have sexual intercourse with him in one forgetful spell, is liable for two [sin-offerings] according to the opinion of Rabbi Yishmael. But Rabbi Akiva says, "It is not necessary. Behold, He says, 'And you shall not lie (tishkav) with a male.' Read into it, 'You shall not be lain with (tishakhev).'" Hence one who has sexual intercourse with a male and has a male have sexual intercourse with him in one forgetful spell is only liable for one [sin-offering]. And they said about the reason for this, "You shall not lie and you shall not be lain with are the same." However, "and there shall not be a male prostitute," appears - according to my opinion - to strengthen [it]; like He said, "you shall not commit adultery" (Exodus 20:13), which is the prohibition of a married woman, as we explained, yet afterwards He said, "And to the wife of your kinsman do not give your lying for seed" (Leviticus 18:19). And there are many examples like this, as we explained in the Ninth Principle. And one who transgresses this negative commandment is liable for stoning; and if he is not stoned, he is surely [punished] with excision if he was volitional. But if he was inadvertent, he must sacrifice a fixed sin-offering.

Not to have sexual relations with a woman without a marriage contract and betrothal: That we have been prevented from having sexual relations with a woman without a marriage contract and betrothal. And about this is it stated (Deuteronomy 23:18), "No daughter of Israel shall be a prostitute." And Rambam, may his memory be blessed, wrote (Sefer HaMitzvot LaRambam, Mitzvot Lo Taase 355) and this is his language: "The negative commandment about this matter has already been duplicated with a different language in the verse (Leviticus 19:29), 'Do not desecrate your daughter to make her a harlot' - and the [following is the] language of Sifrei Kedoshim 7:3, '"Do not desecrate your daughter" - this is one who gives over his single daughter not for the sake of marriage and also [a woman] who gives herself over not for the sake of marriage.' And hear from me for what [reason] this negative commandment of strong language was duplicated, and for what was it added to (see Mishneh Torah, Virgin Maiden 2:17): That which He already made precede from His laws that one who has sexual relations with a virgin - whether it be a seduction or a rape - is not obligated any one of the punishments, except only to [give] money and to marry the woman with which he had sexual relations, as it is explained in the verse, would let it come into our thoughts that since this thing only requires the payment of money, that this law goes according to the procedure of financial law. And [if so, just] like a person has the right to give whatever of his money to his fellow and he leaves it to him to do his will with that which is [now] his; so too has [the father] the right to take the maiden with him and to give her to a man to have sexual relations with her, since that is his law that is fitting to him - meaning to say the fifty shekel-coins of silver that go the father of the maiden. And this [father] will also give her on condition that he takes from him such and such dinar-coins. And he is prevented from this [thought] and it is told to him, 'Do not desecrate your daughter to make her a harlot.' Since that which is My law with her to only take money, however, is only when there is an incident when a man seduces or rapes [her]; but when the matter is with the consent of both of them together and it is public, there is no permissibility to this at all from any angle. And He showed the explanation for this and stated (Leviticus 19:29), 'lest the land fall into harlotry and the land be filled with depravity.' [This is] since the existence of seduction and rape is limited, but when the matter would be by choice and consent, it would spread and fill the land. And this reason is very nice and it enhances the verse. And similar to this is all that which the Sages have mentioned and all that they agreed upon regarding the Torah laws." To here is his language, may he be blessed. And Ramban, may his memory be blessed, wrangled with him about this (in his critique of Sefer HaMitzvot LaRambam, Mitzvot Lo Taase 355) and said that this negative commandment of the prostitute is not coming to warn one having sexual relations without a wedding contract and betrothal, as the wedding contract is neither a commandment nor a form of acquiring a woman, at all, according to the Torah. But [rather] the main negative commandment [here] is coming to warn not to have sexual relations with a woman that is forbidden [in marriage] to the man having sexual relations in such a way that betrothal would not be effective for him with her. As they, may their memory be blessed, elucidated in the Gemara (Yevamot 61a), that the harlot (zonah) that is mentioned in every place in the Torah is none other than a woman who an Israelite has sexual relations with, when betrothal would not be effective for him with her. And this is the harlotry that the Torah distanced and loathed forever and [here] it warned the [man] and the [woman] about it. And so too from the foundation of this matter is that the verse warns the court that they should not let a woman be abandoned among them, since her end will be to have sexual relations with men that she is forbidden to [in marriage], to the point that betrothal is not effective for them with her. As there is no doubt that a woman abandoned to the many will not be exacting afterwards 'between a piece of permissible fat and a piece of forbidden fat.' And so too does it warn the father of the girl about this explicitly in another verse; that he should not abandon her to harlotry and not to give her over to one who cannot have betrothal with her. And about this is it stated, "Do not desecrate your daughter to make her a harlot." And it is all from the reason mentioned - since she will have sexual relations with one who she is forbidden to [in marriage]; not from the reason of marriage contract and betrothal, as is the opinion of Rambam, may his memory be blessed.