Original Torah: Ancient Words in a Modern Light

Hello Rabbi Dorff-

My name is Benjamin Fleischer. I am a 2000 graduate of the University of Pennsylvania and a current student at the Conservative Yeshiva. A friend has asked me why I am not shomer negiyah if the law as codified from the Rambam through Iggerot Moshe clearly states that a man may not touch a woman in any loving way whether hugging or kissing. It seems to me that the issue of shemirat negiyah has become one the principally debated topics among baalei teshuvah who can find no Conservative source permitting premarital contact with the opposite sex. I have noted that in your Rabbinic Letter you write that hand-holding, hugging, and kissing are natural ways for youths to express affection. I am curious what the history of shemirat negiyyah is and the halakhic reasons we may dismiss with it today.

Thank you for your time.
-Benjamin Fleischer

RESPONSE: Rabbi Dorff replies

Dear Benjamin,
I do not know of any specific teshuvah issued by the Conservative movement about the status of the laws of shomer negiyah, but it clearly has been abandoned in practice in our movement. I say that first because Jewish law is not only a function of what is stated in Jewish books of law; it is also importantly a matter of what the people who are supposed to be bound by the law do. Putting it another way, law always emerges from the interaction of law and custom, of what those charged with interpreting the law say and what those bound by the law do. So the practice of couples (including, by the way, older adults too!) holding hands, kissing, and hugging, which goes back at least a hundred years, is itself a halakhic datum. (This is Schechter’s Catholic Israel doctrine.)
If I were to write a teshuvah about this, though, I would probably note the major differences between the dating and marriage patterns of our ancestors and our own. Both of my parents went to college, and my father was 30 when he married and my mother 26. My in-laws, on the other hand, did not go to college, and they were 18 and 19, respectively, when they married. With people sexually maturing even earlier than in times past due to better nutrition (There was a cover article in Time magazine several months ago on the earlier onset of menses in American women), and with Jews, in particular, going not only to high school but college and graduate school, marriage is delayed, and outlawing all forms of romantic expression becomes impossible for the vast majority of people to do. Moreover, it probably is not desirable either, for repressed sexual energies will out in some more destructive way if safe expressions of those energies in forms like kissing and hugging are not allowed. This is clearly an historical, rather than a sheerly legal, treatment of the subject, but seeing the law in its historical context is what our movement is all about.
I hope that this helps. I would be interested in your reactions.
Shabbat shalom, and warm regards.
Elliot Dorff

COMMENT: The Aish Rabbi Wrote

The laws regarding Shomer Nagiah are derived from the verse “Any man shall not approach his close relative to uncover nakedness. I am the Almighty.” (Leviticus 18:6) The Talmud – Shabbos 13a discuss the subject in detail and the Even Ha’ezer 21:7 discusses the laws and implications. And why don’t your friends keep it? I cannot comment for them, since I do not know them.
Whatever the case, it is good to judge your friends favorably, and assume that the they have never heard of these laws, or if they did hear of these laws, they were never taught them properly – for if they were taught them properly, they would also be Shomer Negiah!

Just as the Torah commands the Nazir who swore off not to even taste raisins or grape skins as an added precaution, the Torah commands us (as one of the 613 Mitzvot) not to have any sort of intimate contact with someone with whom it is forbidden to be sexual.

But what is considered intimate contact and who is included in the prohibition?

Intimate contact obviously includes hugging and kissing. How about other forms of touch like shaking hands? The general rule is that being Shomer Negiah includes not even shaking hands. Some halachic authorities make exceptions in certain situations such as where someone who hasn’t heard of the concept of being Shomer Negiah has already extended his/her hand and if you reject it they will be tremendously insulted.

The best thing to do is to put both hands behind your back and bow graciously with a big “Hello,” pretending you don’t even see their outstretched hand.

Touching is permitted between parent and child, and with girls under 3 and boys under 6. Also, for the sake of healing — i.e. doctor and patient.

An excellent little book which explains the logic of being Shomer Negiah in a touching way (pardon the pun) is, “The Magic Touch” by Gila Manolson. You can purchase it at your local Jewish book store or http://store.yahoo.com/eichlers/1568711859.html. It is highly recommended.

Excerpts at:

http://www.heritage.org.il/innernet/archives/touch.htm

http://www.heritage.org.il/innernet/archives/superglue.htm

It’s what God wants and we get pleasure out of doing what God wants us to do even if we don’t understand it.

With blessings from Jerusalem,

Rabbi Shraga Simmons
Aish.com

RESPONSE: I write to R’ Dorff

It had been a while since your last reply so I decided to ask the Aish haTorah Rabbi since I knew those guys are always rip-ready to give an answer. However, I still respect your opinion more than his and am interested in what you think of what I learned.

He told me that the basic principles are discussed in the Talmud on page Shabbat 13ab. I carefully read the page (using Steinsaltz as a crutch) and this is my more informed opinion. Maybe it will help if you decide to write a teshuvah.

The discussion seems to be only tangentially related to shomer negiyah. The page says you can’t touch your wife while she’s in niddah. This niddah is what makes her a prohibited relation. I have two problems with this. 1) As was clear from the story on the following page, even though that rabbi’s yetzer was active, he was nonetheless able to restrain himself. Why don’t later poskim make the same assumption? 2) Your wife is someone you have sex with. Other girls who are niddah, though nonetheless prohibited to me I am not going to have sex with. In my University, even the most promiscious people set aside times and places for sex. It’s usually at a party or after a date. If my friend wins a scholarship and I give her a hug, and as the gemara discusses, neither of us are willing (different de’ot) to have sex and break a Torah law, what wrong have I done?

If I understand the reasons for shomer negiyah, I am offended by the rabbis’ assumption that any girl I touch I will want to have sex with. I have grown up and touched many girls, but haven’t had sex once and won’t till I’m married. However, as I consider the rabbis and try to be fair to them, and as I remember from the Magic Touch (which I enjoyed) perhaps “hergel aveirah” means that if I hug my friend now that might lead to sex later. In any event, that assumption is wrong since I won’t have sex.

Do I understand the Talmud properly? My understanding is colored by the Aish rabbi’s answer as the absoluteness of shemirat negiyah. Although I recall Moshe Feinstein rules that the actual prohibition is “derekh hibah” this rabbi said you shouldn’t even shake hands, you should just bow.

Peace
-Benjamin

RESPONSE: R’ Dorff

Dear Benjamin,
Hello! It was good to hear from you — indeed, to learn from you. As I think I mentioned to you earlier — or should have — I have not really done the research necessary to address the issue of shomer negi’ah adequately; in the Letter, I just summarized the ongoing practice of the Conservative Movement without really arguing for it — or even providing sources in endnotes, as I did with most other things. Your question therefore has caused me think much more about this issue than I ever have, and now I am grateful for your discussion of the talmudic material too. Prompted by your impetus, I just may write a teshuvah about this after all!

On the merits of the case, I feel as you do. The whole institution of shomer negi’ah presumes that men (and women, for that matter) cannot have morals. That is both insulting and inaccurate. It is also un-Jewish in the broadest of ways: Judaism does not say that we should abstain from sex altogether (with the ideal of becoming a monk or nun), but rather that we should learn how to channel our energies into good purpose. Moreover, as I said in my first letter to you on this subject, the times have indeed changed on this issue because of later marriages and different dating patterns. In any case, I am not going to stop shaking hands with women, hugging them to congratulate them or greet them, or even give them a Shabbat kiss. Isn’t that outrageous?!

To be continued!
Happy Martin Luther King Day.
Warmly,
Elliot Dorff

—-RESPONSES: FRIENDS
Hey Ben,
That was a pretty cool exchange that you had with Rabbi Dorff. Thanks for sharing it with me.
The response you got was interesting. He made no mention of the limits of what he considers sexual, and though I know that a Rabbi doesn’t like to speak of these sorts of things, it is a curious matter. Also you know of my longstanding question, does a girl being niddah affect her relationship with her boyfriend. Since hugging and kissing is now ok, is it also ok when she is niddah? I would be curious to see what Rabbi Dorff has to say about that.

Thanks Ben, Talk to you later, A-
—
Benjamin –

You know what I think about the whole issue, so you don’t have to really ask me. All I wanted to say to add to your thought ramblings is that… and you can quote me on this one…. what the hell, have a good time, and chill out a little….

Later, M-

—
On the subject of shomer n’giyah, I think the orthodox rabbi was being unreasonable and the conservative one was, well, he just didn’t seem to be too concerned about the old practice. What I know about it:

1) all issurei erva derive from a basic concern of the rabbis that people might end up committing some grave issur, like adultery or nidda (incest is less of a concern). Since nowadays all single girls are niddot, the issur applies by extension to all single jewish girls (non-jewish girls may be less of a problem).

2) despite the assertions of the orthodox rabbi, there are a heck of a lot of orthodox people (almost all modern orthodox, with some pretty big guns on their side halachically) that have zero problem shaking hands. Hugging a girl you find unattractive might be the same kind of thing (there is a precedent for this in the g’mara, an old man carries around a bride and explains “she is like a piece of wood for me”). On the other hand, once you hug girls in general, you probably won’t *refuse* a hug from that girl you think is cute, and yeah that’s definitely n’giyat chiba. Whether or not it will lead to sex (now or later or ever) is predicting the future, and of course these are general guidelines that don’t really consider such predictions. You can’t really know what effect an action will have!

2) to suggest that the times have changed so much is kind of a silly argument, in my opinion. People mostly got married around 20 back in the mishna’s time, too (“ben shmoneh-esrai l’chupa”), I think they always have. (Girls maybe got married earlier.)

3) MOST IMPORTANT: as for sexual frustration: I think the halacha is supposed to make sense, but as a mature person of 22 I gotta admit that being shomer n’giya is NOT such a big sacrifice as the conservative rabbi makes it out to be. I used to think that falling in love demanded a physical relationship; I don’t think that’s true any more, not at all (based on personal experience). I feel much more frustrated by a lack of LOVE in my life than by a lack of SEX, and I think most people would agree. There’s no rule against talking with a girl, btw, although you should keep away from flirting with other peoples’ wives.

4) If you really feel frustrated (like you’ve been going out for a long time), well sometimes rules are made to be broken, although it’s nothing to be proud of. A lot of people have moments of weakness, no big deal. The main thing is, they’re breaking a d’rabbanan, not a d’oraita like niddah!
love,
B-

—I Respond:
Anyhow, as to my article, as you pointed out, it comes down to the authority of previous codifiers of jewish law upon us. I believe that the halakha is that the talmud is authoritative and anything after that is de’ot. Well, the Talmud never really deals with shomer negiyah. It does obliquely, of course, as I pointed out, however one may easily argue that “shani ha-tam” that the married couple are expected to have sex whereas the unmarried aren’t. Thus the later codifications are just de’ot no matter how long they are cherished.

And as you pointed out, it is just de-rabbanan. And the Conservative movement is willing to reject a de-rabbanan where they believe there is an ethical imperative or other motivating reason to change the gezera. Just like the Tosfists who changed the law regarding clapping so we change the law regarding touching.

My opinions, of course, are directed towards religious people who care enough about niddah not to have sex with such a person. To one who doesn’t care, the restriction of shomer negiyah is irrelevant.

I see your point. I just don’t see the value in maintaining the law. I would rather just tell people the truth and that they shouldn’t have premarital sex.

so ends our discussion.
-Benjamin

—B responds
i’m pretty sure the talmud discusses issurei n’giya in other places, not just between husband and wife (i can think of a couple off the top of my head). But if your argument is based on the ability to uproot d’rabanans, I guess it doesn’t make a difference. I’m not sure what you’re referring to about the issur on clapping, musta missed that point.
B-
—
ben,

an interesting little can of worms you have opened. i will look forward to the content of r. dorff’s opinion on shomer nagiya. i however am dismayed that once again a halacha of this nature has now crept into the discourse of conservative judaism. i beleive we stand (or should) for an ethically concerned halacha that confronts the major issues of the time. i do not believe sh. negiya meets this criteria at all. and in its most radical form is quite offensive and repugnant – that a girl of three can no longer be “intimately” touched by her father.

why must our movement only discuss the halachot practiced by other movements and not forge out on the road to developing guidelines to practice for issues concerning human rights and others of this nature.
let the more fundamentalist movements have their burning issues and we will have ours and see which is more compelling for am yisrael to be part of. if we continue down the current path we will always seem just to be a kulah and apathetic “halachic” movement.

be well and shabbat shalom

S-