Parsha Ki Tetzei - Delivered 14 Elul, 5776/September 17, 2016 at Congregation Netivot Shalom, in Berkeley, California
In honor of my teacher, Rabbi Benay Lappe, and my chevruta, Sarah Schreiber, with whom I learned about the בן סורר ומםרה
Ki Tetzei abounds with mitzvot about justice. Do not leave the body of an executed criminal on display, but bury them promptly. Return strayed livestock and lost possessions to their owners, and care for them until the owner is located. Build a parapet around your roof so no one falls off and dies. If a slave seeks refuge with you from their master, do not return them to their master but let them reside in your cities. Pay a poor worker on the day of their labor. Do not return for forgotten grain in your field, or fully harvest your vineyard or olive orchard, but leave the forgotten or remaining harvest for the stranger, the widow and the orphan.
However, in its instructructions for how to build a just society, Ki Tetzei contains a number of laws that hurt my heart to read. I can see, when looking from a historical perspective, that many of these laws are intended to create a more just society than surrounding societies. They may be an attempt on improvement, but from a modern vantage point, they seem like brutal perversions of justice.
If a man takes a woman as a captive of war, and wants to marry her, give her a month to grieve her parents first. And then if he tires of her after marrying her, he can send her away, but can’t sell her as a slave. If a man marries a woman, and comes to despise her, and claims she was not a virgin when they married, her parents should provide evidence of her virginity. If she was a virgin, he owes her father a fine for defaming her and can never divorce her. That sounds like a brutal marriage to be trapped in. If she was not a virgin, she should be stoned. If a man rapes a betrothed woman in a city, stone them both to death for adultery, because she could have cried out.
On and on. I won’t repeat them all because I’m sure most of the ones that hurt my heart hurt yours too. There are two verses I’d like to take a look at today. The first, because I was surprised by Rashi’s understanding of what I think is, today, one of the most damaging verses in this parsha. The second, because I believe we have a lot to learn from how the Rabbis approached it.
Many of these verses that no longer sound like justice are not so applicable today, because marriage, rape, and crime are governed by civil laws, which may sometimes be still regressive, but are, for the most part, more modern and a further improvement. However, the mitzvah to not put on the clothes of the “opposite” gender, and calling the person who does so an abomination is deeply harmful, because it is popularly understood to apply to trans, genderqueer and gender non-conforming people. How many trans, genderqueer and gender non-conforming folks have wondered if they are an abomination, because of this verse? How many people have been called an abomination, because of this verse?
And yet, I was surprised to find that the case of someone who wishes to express their gender in a way different than the world tells them to is clearly excluded from the narrow understanding Rashi brings to this verse.[1] Rashi, the lover of pshat, the explainer of plain meaning, explains that this verse prohibits only the wearing of clothes of an “opposite” gender in order to sneak out to engage in adulterous or forbidden sex. The abomination is not the person, according to Rashi, but the forbidden sex they are dressing up to engage in. Not to say that some of the laws about forbidden sex are not, in themselves, problematic, but I think it is important to widely acknowledge that at least one important, authoritative voice of tradition understands this law in such a narrow way as to clearly exclude folks expressing their gender from this prohibition.
Looking at the second verse, we find that we are not alone in being morally discomforted by a verse in Ki Tetzei. Two-ish millennia ago, the rabbis who wrote the Mishna and then the Gemara were deeply bothered by the following verse: “If a man has a stubborn and rebellious son, who does not obey his father or his mother, and they chasten him and he does not listen, his mother and his father shall take hold of him and bring him out to the elders of the city, to the city gates. They shall say to the elders, ‘This son of ours is stubborn and rebellious. He does not obey us, he is a glutton and a drunkard.’ And all the men of his city shall pelt him to death with stones, and he shall die.”
This verse is one which clearly tries to improve on existing justice. In many surrounding communities to the ancient Israelites, parents had the right of life or death over their child, and could kill them on a whim, by right. The Torah adds restraints: the parents must agree; they must take their child to the elders for approval; the child must meet a specific criteria of misbehavior. Inherent in bringing the child to the elders is a waiting period, a cooldown. This is an improvement.
The rabbis were not satisfied. They addressed the matter by narrowing the category of situations the law applied to out of existence. This comes from Sanhedrin 68b. “בן סורר ומורה מאימתי נעשה בן סורר ומורה משיביא שתי שערות ועד שיקיף זקן התחתון ולא העליון אלא שדברו חכמים בלשון נקיה” “A stubborn and rebellious son, when is he considered a stubborn and rebellious son, subject to this pasuk?” asks the mishna.
First, the rabbis limit it based on his age. A boy can only be a בן סורר ומורה, a stubborn and rebellious son, from when he begins to grow pubic hair, until he has finished growing it. In the gemara, they limit it further, stating this process only ever takes 3 months, regardless of the time that an individual boy’s puberty seems to take. Where does this come from? The rabbis make a miyuut, a limiting based on a literal reading of the text. The torah verse says “כי-יהיה לאיש בן”, when a man will have a son, thus the child must be a son and not a daughter, a boy and not a man, and a boy who has not yet reached bar mitzvah is exempt. Why? There is no proof text given. The rabbis seem to be relying on their moral wisdom for that call.
The rabbis provide limitations on how much of a glutton and a drunkard he must be, eating a specific quantity of meat and drinking a specific quantity of wine. Not just any wine, it must be Roman (Italian) wine. They undertake further limits on the boy.
Then the rabbis look at the boy’s parents. If only one parent wants him killed, he is not eligible, both must want it. If his mother wasn’t ‘fit’ for his father, he is not eligible. What is ‘fit’? The gemara found that confusing too, and we’ll take a look in a moment.
The rabbis next undertake a rather ableist limitation, but it serves to expose what they are doing in their argument, in its absurdity. If one parent is missing fingers, he is not eligible, because how could they grab him? If one parent limps, he is not eligible, for how could they drag him? If one parent could not talk, then how could he disobey their joint voice? If one parent was blind, how could they identify him to the elders? If one was deaf and mute, they couldn’t hear him talk back to their instructions. The rabbis provide so tight an interpretation so tight and literal, they expose their point: to exempt the law out of applicability.
We see this further in the Gemara. What does “fit” mean? No that his parents had a forbidden relationship. No, Rabbi Yehuda says, fit means his mother is on equal terms with his father, exactly equal in voice, and in looks, and in height.
The rabbis continue their limitations, narrowing and narrowing the category of ben sorer umoreh. Recognizing that they have quite nearly eliminated any בן סורר ומורה, the Gemara says “There never was, and never will be, a בן סורר ומורה.” Why is this verse in the torah then, it asks. To study it, and receive the rewards of study. Who said so? Maybe Rabbi Yehudah. Or perhaps Rabbi Shimeon, who laughed at the absurdity of itL What parents would bring their child to be killed because he ate 3 oz of meat and drank ½ a cup of wine? It never was, and it never will be.
But the stama, the compiler of the Talmud, the stama knows people, and knows the violence of erasure.[2] The Gemara continues: “Said Rabbi Yonatan: I saw him, and I sat on his grave”. Rabbi Yonatan was a kohen, who could only enter a burial ground for a few close relatives, including his child.
The talmud makes clear that this work of eliminating the applicability of the בן סורר ומורה is not merely an academic exercise, but vital to bring law and the morality of “don’t kill your kid for rebelling” into alignment. Erasure is, in itself, violence. Parents do sometimes seek to kill their children, or drive them out, not caring if they perish on the streets, or squash their souls, not caring if it drives them to suicide.
So, what do we learn from arguments of the Rabbis of the talmud? We can deeply engage in the problematic parts of talmud without leaving our morals or tradition behind. If anyone stands there, wringing their hands in the face of moral injustice, citing tradition, what can we do? Know what you can do: join in the oldest Jewish tradition there is of arguing problematic bits of Torah into an alignment with moral understanding. Never stand in the face of justice, saying “I wish I could, but the tradition doesn’t stretch that far.” And if I ever do so, please call me out.
Torah is fundamentally a moral document, even as we grow over generations in our understanding of justice and morality. Torah can grow too, if we take her with us. Shabbat shalom.
[1] Thanks to Rabbi Reuben Zellman and Rabbi Eliot Kukla who pointed me to Rashi’s commentary on this verse.
[2] Thanks to Eli Rarey, who helped me understand the voice of the stama here.