“Polygamy, Illegitimacy and Punishing the Innocent”
(Revised and updated from Kee Teitzei 5760-2000)

 

by Rabbi Ephraim Z. Buchwald

 

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

Parashat Kee Teitzei contains a broad array of laws: family laws, laws of kindness, 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 Israelite camp, laws concerning vows, divorce, equity, and humanity.

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

As most know, the practice of polygamy was quite widespread in ancient times. While the Torah legally countenanced polygamy for men, the Torah was not inherently sympathetic to its practice. In fact, parashat Kee Teitzei underscores the Torah’s not-too-subtle antipathy toward polygamy.

We read in parashat Kee Teitzei, Deuteronomy 21:15, כִּי תִהְיֶיןָ לְאִישׁ שְׁתֵּי נָשִׁים, הָאַחַת אֲהוּבָה וְהָאַחַת שְׂנוּאָה, וְיָלְדוּ לוֹ בָנִים הָאֲהוּבָה וְהַשְּׂנוּאָה , When 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, upon review of every single case of polygamy in the Bible, we will find that in each case there is competition which leads to considerable turmoil in the home: Sarah and Hagar, Rachel and Leah, Elkanah’s wives, P’ninah and Hannah, the mother of the prophet Samuel. In fact, as we have mentioned previously, the Hebrew word for the second, competitive wife, is צָרָה —Tz’ara, (Samuel I,1) which is the origin of the Hebrew/Yiddish word צָרוֹת —Tzuris, meaning 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 each case is filled with intrigue, turmoil, and Tzuris in the royal palace, leading, in many instances, to total corruption and even murder.

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

Even in antiquity, the practice of polygamy in Jewish society was quite rare, and was clearly frowned upon. While practiced infrequently, polygamy was formally forbidden in Ashkenazic Jewish communities by Rabbeinu Gershom (960-1040 AC), with the issuance of his חֵרֶם —cherem, a special prohibiting decree. Sephardic Jewry never accepted that decree, and consequently, in 1948, Yemenite Jews arrived with their multiple wives to 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 Hebrew year 5000–1240 AC. When it expired, it was immediately renewed.

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 identity of both his/her biological parents. When a man has multiple wives, both the biological mother and father are known. However, until the recent advent of DNA testing, it was impossible for the child of a woman who has multiple husbands to know who was his/her biological father.

An additional aspect of this issue arises in our Torah portion, in Deuteronomy 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. Deuteronomy 23:3 reads, לֹא יָבֹא מַמְזֵר בִּקְהַל השׁם , a bastard–an illegitimate child, may not enter into the Assembly of the L-rd. גַּם דּוֹר עֲשִׁירִי לֹא יָבֹא לוֹ בִּקְהַל השׁם , even to the tenth generation shall none of them enter into the Assembly of the L-rd. In Jewish law, children born out of wedlock are not illegitimate, only those who are born of an adulterous or an incestuous relationship are considered bastards, מַמְזְרִים —“mam’z’rim” and are forbidden to marry a “legitimate” Jewish person.

This, of course, is quite problematic. After all, the Torah boldly declares, (Deuteronomy 24:16) אִישׁ בְּחֶטְאוֹ יוּמָתוּ , Every person is responsible for his/her own sin. Yet the Torah visits the sins of the parents on the unfortunate illegitimate child. This innocent child, through no fault of his/her own, is unable to marry a Jewish person because his/her parents committed a grievous sin. How is this justified?

There are numerous laws in the Torah (36), the violation of which are punishable by death. In accordance with Jewish law pertaining to capital crimes, witnesses were required to approach the perpetrator, let’s say the murderer, and warn the would-be perpetrator that murder is prohibited. The witnesses had to inform the perpetrator of the penalty, and the exact form of execution that applied to the crime. This too must be acknowledged by the would-be murderer. 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 will be convicted, and sentenced to death. 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 adultery is extremely remote, infinitesimal, in fact non-existent. Since the threat of punishment is not effective, the Torah declares that a child born of this incestuous or adulterous relationship will be subject to a grievous disability, in the hope that this will stop the perpetrators from committing this violation.

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

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 if a husband were imprisoned for many years, or lived across the sea in another land, and his wife is seen to be pregnant, we do not declare the woman an adulteress. Rather, Tosafot, commenting on the Talmud Kiddushin 73a, suggests that perhaps the husband flew in on a magic carpet so that he could impregnate his wife. This, of course, is done in order to prevent an innocent child from being declared a mamzer, illegitimate!

The concept of מַמְזְרוּת —mam’z’rut, illegitimacy, is a very painful topic in Jewish life, but underscores the intense 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 regarding conduct and compassion in the face of difficult societal issues.

May you be blessed.