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Kee Teitzei 5760-2000

“Polygamy, Illegitimacy and Punishing the Innocent”

by Rabbi Ephraim Z. Buchwald

This week’s parasha, parashat Kee Teizei, is the parasha that contains more mitzvot than any other parasha in the Torah. Kee Teizei contains a total of 74 mitzvot, 27 positive and 47 negative commandments, out-ranking Emor, the second most numerous parasha, which contains 63 mitzvot.

Parashat Kee Teizei contains a panoply of laws: family laws, laws of kindness, an array of miscellaneous laws dealing with proper clothing, kindness to animals, parapets for roofs, the prohibition against mixing various seeds and materials, laws regarding the holiness of marriage, the holiness of the camp, laws concerning vows, divorce, equity, and humanity.

The laws of the family play a particularly prominent role in parashat Kee Teizei, and they are broad and quite varied in scope.

As most of you know, the practice of polygamy was quite widespread in ancient times. While the Torah legally countenanced polygamy for men, the Torah was really unsympathetic to its practice. Parashat Kee Teizei underscores the Torah’s subtle antipathy towards polygamy.

We read in parashat Kee Teizei, Deut. 21:15, “Kee tee’yeh’nah l’eesh sh’tei na’shim, ah’chat ah’huvah, va’achat s’nu’ah,” If a man has two wives, one beloved and one hated, and they have children, one may not favor the beloved wife’s children over the other wife’s children. Aside from the issue of favoritism, the Torah clearly implies that when a man has more than one wife, one wife is bound to be more favored than the other. In fact, if we review every single case of polygamy in the Bible, we will find that in each case there is competition which leads to terrible turmoil in the home: Sarah and Haggar, Rachel and Leah, Elkanah’s wives, P’ninah and Hannah, the mother of the prophet Samuel. In fact, as we have mentioned in previous discussions, the Hebrew word for the second, competitive wive, is Tz’ara, (Samuel I, 1) which is the origin of the Yiddish word Tsuris, which means pain and travail. While the Torah does permit a king to have multiple wives for apparent political reasons, even in such circumstances, the Biblical narratives in such cases are filled with intrigue, turmoil, and Tsuris in the royal palace, leading in many cases to total corruption and even murder.

Why then does the Torah allow polygamy? And why does the Torah forbid women from having multiple husbands, while permitting men to have multiple wives?

Even in antiquity, the practice of polygamy was quite rare in Jewish society, and was clearly frowned upon. While practiced infrequently, polygamy was formally forbidden in Ashkenazic Jewish communities by Rabbeinu Gershom (960-1028 AC), with the issuance of his cherem, a special decree. Sephardic Jewry never accepted that decree; consequently, in 1948, Yemenite Jews arrived, with their multiple wives, in the newly formed State of Israel. The State permitted them to keep their wives, but forbade any future polygamist relationships. Oh yes, the decree of Rabbeinu Gershom was intended to be in force until the Jewish year 5000–1240 AC. When it expired, it was immediately renewed. Sorry guys!

Now back to the basic questions. Apparently, the reason that the Torah allowed a man to have multiple wives, while forbidding a woman to have multiple husbands, was rather straightforward and logical. Every child is entitled to know the identify of both his biological parents. When a man has multiple wives, both the biological mother and father are known. However, until the recent advent of DNA testing, if the wife had multiple husbands it was impossible for a child to know who the biological father was.

An additional aspect of this issue arises in our Torah portion, in Deut. 23, where the Torah lists certain forbidden marriages. The Torah states that Amonite and Moabite men may not marry into the Jewish people. Egyptians may not marry into the Jewish people for three generations. Deut. 23:3 reads, “Lo yah’vo mam’zair bik’hal Ha’shem,” A bastard — an illegitimate child, may not enter into the Assembly of the Lord. “Gam dor ah’see’ree lo yah’voh bik’hal Ha’shem,” even to the tenth generation shall none of them enter into the assembly of the Lord. In Jewish Law, children born out of wedlock are not illegitimate, only those who are born of an adulteress or an incestuous relationship are considered bastards, “mom’zay’rim” and are forbidden to marry into the Jewish people.

This of course is quite problematic. After all, the Torah says, (Deut. 24:16) “Ish b’chet’oh yu’ma’tu,” every person is responsible for his own sin. Yet the Torah visits the sins of the parents onto the poor child. This innocent child, through no fault of his own, is unable to marry a Jewish person because his parents committed a grievous sin. How is this justified?

There are numerous laws in the Torah (36) for which the violation is punishable by death. In accordance with Jewish law, which pertains to capital crimes, witnesses were required to approach the perpetrator, let’s say the murderer, and warn the perpetrator that murder is prohibited. The witnesses further had to inform the perpetrator of the penalty, and the exact form of execution that applied to the crime. Then, they, or two other witnesses, had to see the perpetrator commit the actual murder. While this scenario is indeed unlikely, it is possible that despite these rigorous requirements, in a moment of passion and anger, all these conditions will be met, and the murderer be convicted and sentenced to death. And in such cases, the act of execution is seen as an effective deterrent to these crimes.

However, the nature of adultery and incest is entirely different. One does not commit adultery or incest in front of witnesses, even in a moment of passion. Consequently, the likelihood of the death penalty acting as a deterrent for an adulterer is extremely remote, infinitesimal, in fact, non-existent. In the hope that this may give the perpetrators pause about committing this violation, the Torah declares that a child born of this incestuous or adulterous relationship will be subject to a grievous disability.

One may say, “I will commit adultery, they will never catch me! And if they do, so they’ll kill me!” However, few would be callous enough to risk an act that has such serious consequences for a third innocent party. Whereas threat of death would not serve as a deterrent, because there are no public witnesses, fear of bastardy might.

According to Jewish law, if a Jewish child is born of such a relationship, the child is declared a mamzer and is technically prohibited from marrying a Jewish person. While this is the letter of the law, the rabbis have tried desperately to mitigate this frightening disability. So, for instance, the Talmud tells us that if a husband were imprisoned for many years, or were across the sea in another land, and his wife is seen to be pregnant, we do not declare the woman an adulteress. Rather, we say that Elijah the prophet flew the husband in on a magic carpet so that he could impregnate his wife. This, of course, is done in order to prevent the child from being declared a mamzer, illegitimate!

The concept of mamzayrut, illegitimacy, is a very painful topic in Jewish life, but underscores the sanctity with which Judaism views the family. Once the sanctity of the family is compromised, Jewish society is compromised. So we see that, even from the most challenging, and at least on the surface, seemingly “primitive” statutes, the Torah has much to teach us about conduct and compassion in the face of difficult societal issues.

May you be blessed.