Halakhah do Powtórzonego Prawa 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.