In the
previous post I looked at the philological argument in Saul M. Olyan’s
essay “’And with a Male You Shall Not Lie the Lying down of a Woman’: On the
Meaning and Significance of Leviticus 18:22 and 20:13,” in the Journal
of the History of Sexuality 5 (1994): 179-206. There I suggested that
Olyan’s conclusion regarding what is prohibited in Leviticus (not homoerotic
acts generally but specifically anal intercourse; not only intercourse that
would shame a free citizen by his taking the ‘feminine’ role but all
intercourse between males regardless of status or role) is correct but based on
two questionable assumptions.
In his essay “Leviticus
18:22 and 20:13: Who is Doing What To Whom?,” JBL 120
(2001): 201-209, Jerome T. Walsh rightly alerted us to one of these
assumptions, namely that “knowing” and “lying down (with)” (“performing”) משכבי אשה are the same thing. But Walsh overlooked the other assumption,
namely that אשה signals the one who “performs” the acts
implied in the משכבים. It seems more
likely that אשה complements the verbal notion so that the
construct chain does not refer to “a woman lying down” but to “lying down with
a woman.” The one who lies down with a male in the manner of lying down with a
woman is therefore the one who makes the other experience משכב זכר.[1]
If the conventional rendering of Lev. 18:22 (and 20:13) is correct,
e.g., “Thou shalt not lie with mankind, as with womankind: it is abomination”
(KJV) or “You must not have sexual intercourse with a male as one has sexual
intercourse with a woman; it is a detestable act” (NET Bible), the prohibition
addresses the one who penetrates another man rather than the receptive partner.[2]
Olyan argues that within Israel receptivity was “constructed as
appropriate exclusively to females; it is gendered as feminine” (p. 188). By
contrast laws in Athens, Rome and Assyria restrict behaviour in relation to
status rather than biological sex. In other words, within Israel the one who
penetrates had to be male, the one who receives had to be female. But elsewhere
the critical thing was not biological sex but that the one who penetrates had a
higher status than the one penetrated. Free male citizens penetrated legal
inferiors, namely women but also slaves, foreigners or young men. “The receptive
and insertive roles were primarily status-bound in both the Athenian and Roman
contexts, though the language of gender played an important role in the manner
in which these roles were discussed…to be penetrated was to be feminized, to
surrender male status and authority” (p. 191).[3]
Olyan stresses that the Levitical laws themselves offer no reason as
to why biological sex is seen as determinative. There is no explicit allusion
to the “structure of creation” although he admits that the legislators “might
well have had access to the creation story of the Priestly source with its
command to ‘be fruitful and multiply’ …or to something similar” (pp. 188-89)
and that later rabbinic commentators made the link between biology and “creation’s
scheme” (p. 189).
Did the issue of shaming a male by relating to him as a female play
no role at all in Israel? Not necessarily. As Olyan points out, a sense of the equality
of all male residents may explain that Israelite men are prohibited not only
from penetrating another male citizen (“your neighbour”) but any “male” (young
or old, free or slave, Israelite or foreigner). But, as Olyan admits, this
remains speculative. “In the final form of Lev. 18 and 20, issues of defilement
are clearly paramount” (pp. 196-97, cf. p. 205).
This brings us to the question how the prohibitions in Lev. 18:22 and
20:13 relate to the other laws in these chapters. What if anything unites them?
First, Olyan discusses the “idolatry” approach of N. H. Smith and John
Boswell. This “is probably the least convincing of the four to be discussed. It
depends on the presence of Lev. 18:21, which refers to child sacrifice to an
alleged god Molek, and/or a restricted and inaccurate understanding of [תועבה], the so-called abomination, a word that
occurs in Lev. 18:22 and 20:13 with reference to the male-male intercourse
described and in the framing materials of 18:26-30 with reference to all the
violations enumerated in the chapter.” (p. 198). Olyan considers it “very
likely” that Lev. 18:21 is secondary but in any case it seems to have been
attached to a series of laws prohibiting sexual acts because of “a shared idiom
and key word in verse 20” (p. 198) and not in order to associate all these acts
with idolatry.
Thirdly, S. F. Bigger argued for a concern with maintaining the “sexual
purity of the individual” and suggested that the laws concern a misuse of
semen, including the mixing of different types of semen (cf. the use of תבל, confusion in 18:23 and
20:12).[4] H.
Eilberg-Schwartz suggested a concern with “threat to the integrity of the
Israelite lineage” and D. Biale argued along similar lines that “the laws in
question all proscribe acts that threaten procreation or its results (i.e.,
living children) or do not lead to it” (in Olyan’s words, p. 201). In her words
(cited by Olyan, ibid.):
"What unifies all these acts is that they are considered affronts to procreation, either because they are sterile (homosexuality and bestiality), produce illegitimate progeny (adultery, incest), destroy progeny (sacrifice to Molech), or represent rebellion against the source of one’s own legitimacy (insulting one’s parents).”
Olyan finds Bigger’s theory “appealing” and well grounded in the conceptual world of
the text but considers his treatment of Lev. 18:22 “wholly inadequate.” He
considers Eilberg-Schwartz’s presentation “more thoroughgoing and bolder” but laments
the absence of concern for “mixing” in his argument. Maybe most importantly,
these conceptualisations do not take into account that Lev. 18:22 “refer
specifically to intercourse” (p. 202). If the concern were for “productive
sexual relations…one might expect other genital acts that result in ejaculation
but do not lead to conception to be proscribed” (ibid.).
Finally, Olyan himself suggests that “the reason for the
proscription of male-male intercourse in the final form [of the text might] be to
prevent two otherwise defiling agents – excrement and semen – from mingling in
the body of the receptive partner” (p. 203). “Perhaps menstruation,
parturition, ejaculation, and other events causing defilement according to P
were only mildly defiling according to H, unthreatening to the continued
presence of Israel in the land as long as no mixing with other defiling
emissions was involved.” Olyan finds evidence of the seriousness with which H
looked at such mixing by comparing Lev. 15:24 (P) with 20:18 (H) but it seems
possible that 15:24 envisages the onset of menstruation during sexual intercourse,
while 20:18 concerns sexual intercourse during menstruation. In other words,
there may be a difference between deliberate and accidental infringement.
Ezek. 4:9-15 does indeed provide evidence for the view that (human
rather than animal?) excrement was considered defiling by some priests (at
least in connection with food) and we may compare Deut. 23:14 for the requirement
to relieve oneself outside the camp. But excrement does not in fact play a role
in Levitical law and even if one accepts that Lev. 18:22 refers specifically to
anal intercourse, the move from “lying down with a male as with a woman” to the
comingling of excrement and semen is maybe not as obvious as one might expect,
if Olyan were right. I note that blood is considered very differently,
depending on whether it is inside the body (“the life is in the blood”) or
outside (shed blood = extinguished life = death). It seems to me questionable therefore
that Israelite priests had a concept of defiling excrement inside the body, and
more so as the defiling aspect of excrement outside the body is not raised in
priestly law.
If this were my research
project, I would now go to look at Thomas M. Thurston, “Leviticus 18:22 and the
Prohibition of Homosexual Acts,” in Homophobia and the Judaeo-Christian
Tradition, ed. M. L. Stemmeler and J. M. Clark (Dallas: Monument Press,
1990), pp. 7–23, as the proposal which appears to have the most merit.
[1] Later, however, the idiom is used differently. In 1QSa 1.10 (The
Rule of the Congregation, also referred to as The Messianic Rule) משכבי זכר is parallel to “approaching
a woman to know her.” So here משכבי זכר refers to what a man experiences with a
woman. But the context is unambiguous allowing for greater flexibility. משכבי זכר may have been preferred because the focus is on the coming-of-age
of the young man, the point (at twenty years of age) at which he is allowed to
act the זכר.
[2] He speculates that “receptivity, if viewed as
passivity, would perhaps have rendered them guiltless at a stage before the
work of the final H tradents. In the final form of the laws of Lev. 18 and 20,
purity concerns are paradigmatic: all the violations enumerated cause
defilement and threaten the Israelite presence in the land” (p. 189).
[3] It is more difficult to establish the reasoning behind the Middle Assyrian
Laws (see pp. 192-95) but status and coercion as well as repeated acts play a
role and so they certainly differ from Leviticus in qualifying the prohibition
of male-male couplings.
[4] I do not think that the rendering of תבל as “confusion” or “mixing”
is sufficiently certain to offer a good foundation for this argument but a concern
with intermingling of what does not belong together is evident throughout
biblical law.
