Recently, there has been a lot of discussion around the question of non-marital sexual activity among otherwise religious people who, for whatever reason, have delayed marriage and wish to continue to consider themselves Orthodox while ignoring the prohibitions against sexual contact. First, there was a written exchange on the subject on Ma'ariv's NRG site. segment of Sahra Blau's Erev Shabbat program that dealt with the issue. This was followed, last week, by an evening panel discussion at Ohel Nehama in Jerusalem, under the auspices of Ne'emane Torah vaAvodah. The even was held to mark the publication of the latest issue of Deot, the movement's journal, which devoted a three page article to the topic. The evening was covered in the press and has now engendered lively discussion on the various Jewish discussion lists.
The way the issue is being addressed here, one would think that this was an unprecedented development, (which it might be). It certainly, however, is not unprecedented on the North American Orthodox scene. Twenty five years ago, New York was all abuzz with talk of 'tefillin dates' and the wayward behaviour of the Upper West Side of Manhattan (the phenomenological equivalent of the Qatamon 'swamp.') In fact, not long after I received my first semikha (from Mori ve-Rabbi R. Gedaliah Felder, zt'l), I started receiving questions from various friends who had no access to rabbis. The second shayla I was asked was from an acquaintance from my Harvard days who wanted to go to miqveh in order to be with her boyfriend. I was still learning at YU, and I decided to moot the question. The results were interesting, to say the least.
The first person I asked thought that the question of mikveh for an unmarried woman was an open and shut one. True, the Rivash had intimated that this was a theoretcal possibility. Nevertheless, R. Hayyim Ozer Grodzenski, in Resp. Ahiezer, had stated emphatically that one does not violate lesser prohibitions in order to avoid more serious ones (le-hatzil me-yede hamurot). [Resp. Ahiezer, III:33. See, however, ibid. no. 26.]
To my surprise, however, a very senior member of the Kollel took strong issue with this interpretation of R. Hayyim Ozer. The case there involved a group of women who were unwilling to pare their nails (and ruin their manicures) in order to go to miqveh. They were perfectly willing to clean their nails, but unwilling to obey the added humra of removing one's nails lest there be an unknown hatzizah. This Talmid Hakham pointed out that Reb Hayyim Ozer's case represented a contradiction in the act of immersion. In other words, his ruling could easily be interpreted that one does not forego strictures in Hilkhot Tevila in order to save the immersion. In the case at hand, however, where the two perspective prohibitions (non-marital sex and an issur karet ) are independent of the tevilla, it may be that one does try to save a person from more serious transgressions.
A few days later, I received another response. He acknowledged that technically it might be possible to make allowances. Nevertheless, one does not allow someone to brazenly trample a Biblical prohibition in the interest of saving one from a more serious Biblical prohibition. [ Here I should add, that the general perception that the status of sexual contact that does not lead up to intercourse is a matter of dispute between Maimonides and Nahmanides, with the latter maintaining that it is Biblical and the latter, Rabbinic, in origin. This is not totally correct. If one looks at the Ramban's stricture against Rambam's Sefer Ha-Mitzvot [Neg. 353] it emerges that he notes two opinions. In the first, he does say it's rabbinic. In the second he assets it's a hatzi shi'ur of Gilui Arayot. In other words, it's also Biblical.]
This last offered opinion, over 25 years ago, is the most important one to be discussed. The question is not just legal, in nature. It is one of religious policy, which is also an halachic consideration. Furthermore, as opposed to the question that I was asked, the current discussion revolves around singles asking for an a priori and global license to ignore halakhic norms. This side raises issues that go far beyond the narrow issue of miqveh.
On the other hand, I am very much aware that this is not twenty-five years ago and the singles phenomenon has grown far beyond anything that I would have thought then. Men and women, religious men and women, are suffering in ways that we absolutely must take into consideration. On the other hand, it is also true that as opposed to years ago, people who find themselves on the wrong side of Halakha are not axiogically rejecting the whole Torah and realize they can do Teshuvah. The decline of the perfection or nothing view of Judaism is a welcome development.
In any event, every effort must be made by the community to encourage and support marriage. This is going to require a tectonic shift of values in our community, which I hope to discuss on the Orthodox Caucus website. At the same time, I fully agree that the topic must be discussed by rabbis, rashe yeshiva, psychologists and others. The question is: Where? As opposed to those who are cited in the De'ot article, this is most emphatically NOT a subject for public pronouncements or Television shows [see the aposite remarks in todays HaZofe]. It should be candidly, and discreetly, discussed by those involved. The leadership of the Orthodox community has to validate the issues facing unmarrieds (without endorsing behaviour that runs contrary to the Torah.) That's the nature of Halakha and of real modesty (as opposed to some of the extremes to which the latter has gone and, as a result, indirectly contributed to this particular situation.) This is a very sensitive topic and time in the life of our community. It's not one that can be answered, either with condemnations or liberal pronouncements.