Monday, February 9, 2015

Why is polygamy or incest between consenting adults or bestiality -prohibited if Consitution prohibits banning gay marriage?

Talking Points    Sen. Lindsey Graham (R-SC) asked Attorney General nominee Loretta Lynch to explain Wednesday at her confirmation hearing why polygamy wouldn't also become a constitutional right if if the Supreme Court decided that same-sex marriage was protected by the Constitution.
"If the Supreme Court rules that same-sex marriage bans are unconstitutional — that it violates the Constitution to try to limit marriage between a man and a woman, that's clearly the law of the land unless there's a constitutional amendment to change it — what legal rationale would be in play that would prohibit polygamy?" Graham asked. "What's the legal difference between a state ban on same-sex marriage being unconstitutional but a ban on polygamy being constitutional?"

"Could you try to articulate how one could be banned under the Constitution and the other not?" [...]
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 Bestiality - if animal not harmed?

CNS News      (December 20111) Senate Approves Bill that Legalizes Sodomy and Bestiality in U.S. Military

The Senate on Thursday evening voted 93-7 to approve a defense authorization bill that includes a provision which not only repeals the military law on sodomy, it also repeals the military ban on sex with animals--or bestiality.

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Incest between consenting adults?

USA Today
A state assemblywoman says she'll propose legislation banning adult incest, in the wake of a New York magazine interview with an anonymous Great Lakes-area 18-year-old who says she plans to informally marry her long-estranged biological father and move to New Jersey because there aren't penalties in the state so long as both participants in the sexual relationship are at least 18 years old.
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Additional question - Relationship of halacha of polygamy to ban of polygamy in secular society
If the cherem of Rabbeinu Gershom was based on the ban on polygamy in the Christian world in which Ashkenazi Jews then resided, would that ban no longer be relevant if/when polygamy becomes legal in the United States and the West?

23 comments :

  1. Additional question - Relationship of halacha of polygamy to ban of polygamy in secular society

    If the cherem of Rabbeinu Gershom was based on the ban on polygamy in the Christian world in which Ashkenazi Jews then resided, would that ban no longer be relevant if/when polygamy becomes legal in the United States and the West?


    Rav Yaakov Emden writes that the takonah is a result of our living among goyim. Rav Yaakov Emden says that the reason for the ban was danger from the uncircumcised people (that is the Christians) among whom we live. The exact quote is as follows: (Shailas Yaavetz vol 2, siman 15) "In us is fulfilled due to our many sins the verse 'and they will be mixed among the goyim etc.' therefore it is proper to eliminate it (the ban on taking more than one wife).

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  2. My understanding was that Rabbeinu Gershom's ban on polygamy had a 400 yr time limit but was continued nevertheless by Ashkenazime even after it expired. Doesn't that mean that what outside society does is irrelevant?

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  3. Rabbi Michael TzadokFebruary 9, 2015 at 4:16 PM

    See the Rema in EH"E 1:10 Clearly he states that the ban should be continued.
    The Pitchei Teshuva 1:19 States that the ban is forever.

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  4. Rabbi Michael TzadokFebruary 9, 2015 at 4:32 PM

    That view of Rav Yaakov Emden can at best be called a minority opinion, though it seems to me that he is a Daat Yachid.

    The Rashba Shu"T 197 claims it is because of our inability to maintain the proper level of kedusha in a marriage.He is echoed by the Darkhei Moshe(1:9) Beit Shmuel(1:21) Chelkat Mechokeik(66:18).

    Which then makes sense regarding why the Rema, Beit Shmuel and Pitchei Teshuva felt that the ban was forever. It also explains why the Beit Yosef, felt that polygamy should be strongly discouraged,
    טוב לעשות תקנה בחרמות ונידויים על מי שישא אשה על אשתו

    It is commendable to make a decree with bans and excomunication against anyone who marries more than one wife

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  5. Thank you. So it would seem that outside society's preferences are irrelevant.

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  6. He-e-llo-o-o! We already have polygamy. It's called Get on Demand.

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  7. Both the Vilna Gaon (see Ma'aseh Rav Hashalem p. 276) and Rav Yaakov Emden See Shailas Yaavetz vol 2, siman 15) felt it proper to at some point end the cherem instituted by R"G against polygamy. So to say it is "forever" isn't correct. Keep in mind that the ban on polygamy is not only not a d'oraysa it isn't even a d'rabbanon. Sometimes even a d'rabbanonon can be weakened and this isn't even as strong as a d'rabbonon instituted by Chazal. Surely a cherem can be discontinued when Moshiach comes and even possibly earlier. All this is how it relates to Ashkenazim. The non-Ashkenazim who also currently, in practice, disavowed polygamy did so [I believe; correct me if otherwise] with something even less than a binding cherem.

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  8. ביאור הגר"א אבן העזר סימן א ס"ק לד
    לד) טוב כו'. מחמת קטטה כנ"ל ועיגון וגם משום הא דאמרינן בפרק החולץ לא ישא אשה במדינה זו כו'. שם:

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  9. You should have included nominee lynch's response, that I haven't checked the legal issues. Meaning the court can approve polygamy (and by extension, polyamory, multiple husbands.)

    One can argue Utah is a special case. When Utah was admitted as a state, there were fears of allowing polygamy, so a special clause was added inthe federal legislation, banning polygamy, meaning it can be legislated (or judicially) permitted, even without constitutional grounds.

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  10. Rabbi Michael TzadokFebruary 9, 2015 at 7:18 PM

    So you are saying that the Pitchei Teshuva is wrong? Excuse me if I take the Pitchei Teshuva over an anonymous internet commentor.

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  11. Rabbi Michael TzadokFebruary 9, 2015 at 9:01 PM

    The Rema and the Pitchei Teshuva say it is forever.


    You said,
    So to say it is "forever" isn't correct.



    Ergo you are saying that the Rema and PItchei Teshuva are incorrect.

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  12. Where does the Rema say that? The Rema says that it was extended (i.e. indefinitely; he doesn't say forever without the possibility of change).


    Meanwhile both the Vilna Gaon and Rav Yaakov Emden indicate it is proper to at some stage end the cherem. And they're even talking about before Moshiach. Post-Moshiach all bets are certainly off, even if the cherem is still active at that stage.


    Just as a Rishon (i.e. long after the time of Chazal) could institute the cherem, it is certainly possible for it to be ended at some stage.

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  13. Rabbi Michael TzadokFebruary 10, 2015 at 7:36 AM

    Where does the Rema say that?

    See the Darkhei Moshe quoted by the Pitchei Teshuva.

    We see that the Beis Yosef did not hold of a ban against polygamy as a fixed feature.

    No we see that the B"Y held that CR"G with all its various details was a minhag hamakom.


    However he clearly felt that every community should establish strong bans on polygamy as he ruled thus Sh"A EH"E 1:11. See the B"Y EH"H 169:46 and 1:11. He clearly holds that the generation is no longer capable of upholding holiness with a polygamous lifestyle. If this were true in the days of the B"Y all the more so now.

    All that aside, you are obfuscating. Just admit that your initial statement that anyone saying the ban was forever is incorrect was an overstatement, and that by saying so, you said that the Rema and the Pitchei Teshuva were wrong.

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  14. The primary point I am intending to convey is that the B"Y recognizes that a ban against polygamy is only minhag hamokem and is not binding on all Jews.

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  15. Rabbi Michael TzadokFebruary 10, 2015 at 3:07 PM

    B"Y recognizes that a ban against polygamy is only minhag hamokem and is not binding on all Jews.


    Again that is not the case. B"Y saw that Rabbeinu Gershom, for whatever reason, wasn't accepted in all communities. He does not specifically say that this is because of polygamy. It could have been for a number of reasons, as CR"G covered a number of issues, not just the one.

    This becomes especially salient considering that he ends each discussion of the matter by saying that there should be bans on polygamy.

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  16. His opining that there "should" is not the same as if he had ruled there is or must. He recognizes places that there are not and recognizes the legality of those places not having the ban.

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  17. Just a question - As Ma'ase Rav we have the Baba Sali (deceased not more than 25 years ago) that had more than one wife at once. How do we reconcile that? Did Moroccans accept this ban?

    In the case of ibum, we could have polygamy notwithstanding the takanah. Hacham Ovadiah already has made a quite strong teshuva for fulfilling ibum nowadays. Not to fulfill this mitzvah(in a case where it is clear the only impediment is the country's law) only because of a secular law seems to be wrong.


    Concerning secular law:What's the point in letting men marrying men, all the blabber about "families are social constructions and everyone should act as he wishes" and prohibiting polygamy? It is a social construction of many people. Why should the state intervene in that if no one cares about how families are built anyways?

    I'm not attacking your position, only presenting some thoughts on the issue.

    Cheers

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  18. @David I can't find any discussion in the Maaseh Rav regarding polygamy. Could you please post the page which you are citing.

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  19. Doesn't the quote you copied from that page indicate that the Gra felt it worthwhile having the rabbonim terminate the cherem on polygamy?

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  20. I would be idle from Torah and T'fillah and go from city to city [to get them accepted]. One is to eliminate the prohibition of Rabbeinu Gershom against taking two wives for with this the G'ulah (final redemption) will become closer, and the second that they should have bircas Cohanim every day


    This sounds to be quite the opposite of the Gra.
    1) He would not, under any circumstances, violate halacha in order to supposedly be mekarev the geula. In fact, this was one of his major issues with the early chasidim. Either he felt the ban on polygamy violated halacha, or was causing many people to violate halacha - and that in itself was the reason he would seek to overturn the ban - or he did not feel it violated halacha, and would not seek to overturn it. Metaphysical, solely supposed kabbalistic reasons would not have the GRA be idle from the Mitzvos of Tefila and Talmud Torah.


    2) The Gra did spend time traveling from city to city (when he put himself through exile). Yet, during that time he still kept strict Davening and learning schedules. Why wouldn't he be able to travel around again without being idle from Torah and Tefila? In fact, it sounds highly suspect to say that the Gra would express himself in this way. If he foresaw certain shailos along his supposed travel route (Torah and Tefilah) it is something he would definitely pasken on. However, he would not need to mention it in his supposed declaration that he would like to reinstate polygamy for Ashkenazi Jews.

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  21. @David - I am questioning the validity of the statement attributed to the Gra. It was not in the edition of Maaseh Rav that I looked. It is not in R Eliach's 3 volume biolgraphy 3) the talmidei chachomim I spoke to said they never heard of such a statement

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  22. Violate which halacha? The ban on polygamy isn't a "halacha" and was never implemented across all communities of klal yisroel. i.e. The Teimanim, for example, never were mekabel the cherem promulgated in Ashkenaz by R"G. The cherem is not a d'oraysa and it isn't even a d'rabbonon. A takana that was issued during the times of the Rishonim, and wasn't even universal, certainly -- potentially -- could be changed by the gedolei rabbonim of a different era.

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  23. Violate which halacha?

    Torah and Tefilah! These are two very important chiuvim.

    As far as being " idle from Torah and T'fillah", I understood that to simply being an expression of how strongly he felt about the issue, that he would've done it if accomplishing it would've required that.

    The Gra was not one who wasted words.
    The Gra was not one given to emotional exaggerations.
    The Gra would never say that some interesting way of bringing the geula should supercede the chiyuvim of Torah Utefila!

    !צִיּוֹן בְּמִשְׁפָּט תִּפָּדֶה

    (Please see the Gra's pirush of this Passuk.)

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