Preface: The New Opportunities an Academic Devar Torah has to Offer

As a biblical scholar, I’m trained to focus on a single passage or issue in the Tanakh and to examine it by means of comparison with similar stories, concepts, rituals or laws in the biblical corpus and in the larger ancient Near East. But as a Jew, I look at the parshiyot –the units of text delineated by the Rabbis — to write divrei torah, and one of the challenges is to bring often disparate issues together under a single message. But challenges can also be opportunities—in this case opportunities to look at issues in new ways, to think outside the box, and to provoke us into new thoughts: “Turn the Torah over and over, for everything is in it”(Pirke Avot).

Connecting the Azazel Ritual and the Law Against Homosexual Congress

In previous publications, I explored two of the issues that arise in Acharei Mot: the ritual confession of communal sins onto the head of a goat sent to Azazel, and the prohibition against male homosexual intercourse in the list of sexual sins in Leviticus 18.[1] Although I had never put these two problems together in the same academic head-space,[2] the particular delineation of Acharei Mot forces me to; and in so doing, biblical scholarship gives rise to new theological insights.

The focus of this piece is how rituals and their meanings change over time. For me, one of the most fascinating things about the history of Judaism is the constant tension between change and continuity. As external conditions have changed over time for us, depending on circumstances of geography and politics, the Torah has anchored our sense of continuity in what it means to be Jews, even as our interpretations of its laws, narratives, and rituals rarely remain static.

Rituals and laws are established within certain contexts, and derive their original meanings from those contexts. When the contexts change, however, the ways in which those rituals and laws are enacted must also change. In this piece, I will note how the Yom Kippur ritual has changed over time—even in the Torah itself—and then use that as a fixed point to which we can compare a law forbidding a practice whose meaning is quite different in the modern world, the law against male homosexual congress.

Part 1

The Origins of the Yom Kippur Law: Expiating for Nadav and Avihu’s Sin

Immediately following the deaths of two of his sons (recorded in Lev 10), God instructs Aaron that the task of the priest is to distinguish between the holy and the secular, and between the impure and the pure (וּֽלֲהַבְדִּ֔יל בֵּ֥ין הַקֹּ֖דֶשׁ וּבֵ֣ין הַחֹ֑ל וּבֵ֥ין הַטָּמֵ֖א וּבֵ֥ין הַטָּהֽוֹר; Lev 10:10). God strikes down Nadav and Avihu with fire because they violated zones of holiness when they failed to observe these distinctions. By doing this they defiled the sanctuary; and by dying in the sanctuary, their corpses further polluted the holy. Acharei Mot (“after the death of”) picks up with this theme, and directs the priesthood in what has to happen next – “after the death” – to purify the sanctuary and expiate the taint of Nadav and Avihu’s boundary crossings.

Changes in Ritual

Tradition reads the Torah’s ritual prescriptions as an integrated system of laws given all at once, but biblical scholars discern a variety of strands of narrative, laws, rituals, taboos, and prescriptions written down by different hands over time, and in varying circumstances. This allows us to see two different traditions at work in forging the rituals and meanings of Yom Kippur.

The parasha prescribes that the blood of a bull be sprinkled and smeared in order to purge (kipper) the sanctuary of its pollutants (mittumot). Two goats are also selected for a purification offering.[3] Lots were drawn randomly, with one of the goats designated as a sacrifice for YHWH, its blood mixed with the bull’s to cleanse the sanctuary, and the other “for Azazel.”

Azazel – עזאזל

Who or what is intended by the term “Azazel” has long been the subject of debate and discussion, both in traditional Judaism and in biblical scholarship.[4] What is clear is that Azazel – as the antithesis of the Tabernacle/sanctuary – represented tame (טמא) in contrast to the sanctuary’s tahor (טהר). What is also clear is that in this way of thinking, impurities don’t go away, but have to be transferred somewhere – the scapegoat takes them outside the boundaries of the established priestly order.

In v 10, kippur (purgation[5]) takes place via the Azazel goat (lekapper ‘alayw – “to perform expiation upon it,” v. 10) – meaning not that the goat itself is purged, but that the purgation of the sanctuary is completed when the goat, laden with the sanctuary’s impurities, is sent out to the wilderness.

An Annual vs. Emergency Purification Procedure

Comparison with similar rites in the larger ancient Near East[6] suggests that this was originally meant to be an emergency procedure to cleanse the sanctuary of its double contamination of Nadav and Avihu’s offering, and of their corpses.[7] But the occasional nature of this purgation changes in the conclusion of the ritual’s description in vv. 21-22, where the expressed purpose of eliminating the impurities removed from the sanctuary has been modified to accommodate a new theological notion: rather than an emergency procedure, now once a year, on the 10th of Tishri, the purgation rites of the sanctuary are to be enacted to both cleanse the sanctuary, and to also remove Israel’s sins; in addition, the people must show their remorse through acts of self-denial and cessation from labor.[8]

The Evolving Azazel

But this is not the only change over time attested in the scapegoat ritual. Many arguments about who or what Azazel represented focus on the notion that this entity was originally conceived as a wilderness demon, and this ritual was early on understood to return evil to its source.

Due to the changed worldview of the authors of Leviticus, however, in the Torah Azazel is no longer understood as a demon or even as a force in its own right. The goat sent to him is not an offering; it is not treated as a sacrifice, requiring slaughter or blood manipulation, nor does it have the propitiatory or expiatory effects of a sacrifice. An animal laden with impurities would not be acceptable as an offering either to God or to a demon. And the goat is not understood as a vicarious substitute for Israel because there is no indication that it was punished (e.g., put to death) or demonically attacked in Israel’s place. The goat’s sole function for the purpose of the emergency procedure was to remove the impurities from the sanctuary and carry them outside of the boundaries of the holy.

Thus, by the time it is described in the parasha, the ritual’s meaning and function has already changed, and then changes again when, instead of an emergency procedure, the ritual described for “acharei mot” becomes an annual rite of confession and penitence, intended to carry the sins of Israel outside of the boundary of the holy. In the Second Temple period, the ritual was further altered: the goat for Azazel was no longer set free in the wilderness, but intentionally pushed off a cliff (lest it return, with all of its sins, to civilization).[9] Later, the destruction of the Second Temple put an end to both sacrifice, and the transference of sins to the Azazel goat.

Summary of Part 1: The Emergence and Redefinition of Yom Kippur

Many of the practical details of the rituals in Leviticus became obsolete once the Temple was destroyed, as Judaism came to understand God differently – not as having his presence solely in the Holy of Holies, to be propitiated through ritual sacrifice, but as presiding over the whole world. We also no longer have a priesthood to maintain standards of holiness for all; rather, holiness, and distinguishing between the sacred and the profane, are understood to be the tasks of all Jews.[10]

These large-scale changes in understanding God and in enacting the Torah’s prescribed rituals were worked out over centuries and encoded in all their variations in rabbinic texts. Thus, without a Temple, without sacrifice, and without scapegoats, the Yom Kippur ritual is still about ridding ourselves of impurity and sin through confession, and striving for holiness to keep God in our lives.

Part 2

The Prohibition of Male Sexual Congress as a תועבה

The last part of the parasha deals with laws defining illicit sexual relationships. Although rules about incest and bestiality detailed here have remained constant in Judaism (and pretty much universally), the prohibition on male-male intercourse has recently become the subject of much debate, and has resulted in different rulings by various Jewish denominations.

Before reflecting on how modern day Jews can grapple with this law, we must first try and understand the purpose and meaning of the law in its biblical and ancient Near Eastern context.

“The Man Lying with Another Man” – The Prohibition in Context

The prohibition against male homosexual congress appears twice in the Torah. The first is in Parashat Acharei Mot (18:22) and the second in Parashat Kedoshim (20:13):

יח:כב וְאֶ֨ת זָכָ֔ר לֹ֥א תִשְׁכַּ֖ב מִשְׁכְּבֵ֣י אִשָּׁ֑ה תּוֹעֵבָ֖ה הִֽוא:

18:22 You shall not lay a male the layings of a woman; it is an offensive thing (to’evah).[11]

כ:יג וְאִ֗ישׁ אֲשֶׁ֨ר יִשְׁכַּ֤ב אֶת־זָכָר֙ מִשְׁכְּבֵ֣י אִשָּׁ֔ה תּוֹעֵבָ֥ה עָשׂ֖וּ שְׁנֵיהֶ֑ם מ֥וֹת יוּמָ֖תוּ דְּמֵיהֶ֥ם בָּֽם:

20:13 And a man who will lay a male the layings of a woman: the two of them have done an offensive thing (to’evah). They shall be put to death. Their blood is on them.

By using this particular language, the Torah presents the violation as a boundary issue: Don’t treat a male body like a female one, because it is “offensive.”

The Meaning of To’evah

Internal biblical analysis clarifies the meaning of to’evah, and points to the probability that it refers to something considered offensive in a given social or cultural context.

For example, the end of Parashat Acharei Mot describes all of the prohibited sexual acts in chapter 18 as to’ebot. One of these “to’ebot” is sexual relations with a half-sister (Lev 18:9).

עֶרְוַ֨ת אֲחֽוֹתְךָ֤ בַת־אָבִ֙יךָ֙ א֣וֹ בַת־אִמֶּ֔ךָ מוֹלֶ֣דֶת בַּ֔יִת א֖וֹ מוֹלֶ֣דֶת ח֑וּץ לֹ֥א תְגַלֶּ֖ה עֶרְוָתָֽן:

The nakedness of your sister—your father’s daughter or your mother’s, whether born into the household or outside—do not uncover their nakedness.

Yet, no less a figure than Abraham, when explaining to Abimelech that he didn’t technically lie when he passed Sarah off as a sister, declares that she is actually his half-sister (Gen 20:12).

וְגַם־אָמְנָ֗ה אֲחֹתִ֤י בַת־אָבִי֙ הִ֔וא אַ֖ךְ לֹ֣א בַת־אִמִּ֑י וַתְּהִי־לִ֖י לְאִשָּֽׁה:

And besides, she is in truth my sister, my father’s daughter though not my mother’s; and she became my wife.

The plain meaning of Abraham’s words[12] is that Sarah actually shares the same biological father as Abraham. So in the logic of the text as a whole, what is not a To’evah in the generation of the patriarchs has changed and become one in the generation of Leviticus.[13]

Similarly, the word To’evah describes how the Egyptians feel about shepherds (Gen 46:34) and about eating with Israelites (43:32) and about Israelite sacrifices (Exod 8:22). Such things are “offensive” to Egyptians, but clearly not to Israelites. Thus, whether or not something is a to’evah is determined culturally and historically.

In a somewhat different way, the land itself can change from not being a To’evah and can become a To’evah as a result of the behavior of its residents on it. The prophet Jeremiah says: “You defiled my land, and made my possession into an offensive thing (To’evah)” (Jeremiah 2:7).[14] Thus within the Bible, an act or an object that is not a To’evah can become one, depending on time and circumstances. If something is called To’evah, that means that it offends some group in a particular place and time. Why would male homosexual intercourse have been considered offensive to the authors of Leviticus? Was it simply a subjectively determined taboo or something more?

Ancient Constructions of Homosexuality

Comparative analysis across the literatures of the ancient Near East sheds light on this question. Universally, male homosexual intercourse was only illegal if such relations involved the sexual treatment of a male social superior or an equal as a female.[15] That is to say, it was the sexual penetration of a superior by an inferior or by a man of the same rank that was considered so shameful that it was often punishable by death. Such activity was understood to rob a man of his social status by “feminizing” him: “laying him the layings of a woman.” However, for this reason, in the ancient Near East, the sexual penetration of a lower status male by a higher status male was not considered problematic behavior and was permitted.[16]

Why then, if ancient Near Eastern laws did not prohibit all forms of homosexual acts but permitted such behavior with social inferiors, would Leviticus ban all male homosexual activity, and not qualify the law with respect to rank and status as these other ancient cultures did?

The reason is simply that no other ancient law collection[17] conceived of all men in a community as social equals.[18] Unlike other ancient cultures, the author of Leviticus 18 and 20 declared “You shall have one law for the stranger and the citizen” (Lev 24:22).[19] Since this conception of Israelite society did not recognize differences in rank as relevant to a man’s social status or legal rights, there would be no basis for this law code to distinguish prohibited and permitted homosexual acts (and actors), and consequently, Lev 18 and 20 forbade male homosexual activity without exception.

In short, in ancient Near Eastern society, penetration of an equal or superior status male by another male was considered offensive (To’evah) because it was understood to lower the man’s status. In the ideal of Israel put forth by the author(s) of Lev 18 and 20, because all men in the community were understood to have the same status before God, the prohibition was extended to include the penetration of any male by another male. The point of the law, however, was not about sexual practices, but about respecting the dignity and equal rights of one’s fellow citizens.[20]

Contemporary Application of the Principle

We saw above how the Yom Kippur ritual changed in outer practice, but maintained a basic inner meaning (kappara). I wonder if the same can be true of the law against male homosexual congress? In other words, once we understand that the original context of the prohibition has changed—as it did with the scapegoat ritual—can we imagine a way in which the prohibition can be distilled to its basic meaning and significance so the principle can be carried on, without the specifics of the law?

In modern times, discussions of homosexual intercourse understand the phenomenon as being based on a person’s sexual desire and inclination. We do not think of it in terms of men “feminizing” other men. Moreover, the concept of “feminizing” is no longer understood as the lowering of a person’s status; in modern Western law and society, women and men are equals at least in theory. And so in our world, male homosexual activity is no longer considered to be “degrading” by its very nature because our conceptions of sexuality, status, and equality, have all profoundly changed since the time of Leviticus.

Finally, most of us would be horrified at the idea—expressed explicitly in the Bible—that men who were “caught” in the act of homosexual congress should be executed. In the Western World, we identify such ideas with the likes of ISIS—who are executing homosexuals daily as I write—and we want no part of it.

Like the belief in the demon Azazel, the basic underlying premises of the law are not part of our conceptual universe anymore. In a world that no longer views homosexuality as degrading to other men, the act itself is no longer To’evah. But this leaves us with the question: What can be salvaged from this law? What should this law mean to us?

The underlying principle of this prohibition is a strong call against degrading any human being. Ironically, what this may mean is that it is in fact necessary to stop upholding this law in order to avoid discriminating against our neighbor.[21] Rabbinic law frequently does not take the biblical text at face value (see e.g., the classic rabbinic interpretation of an eye for an eye as implying monetary compensation) and we should follow suit. Our context has changed, and this particular law—like the scapegoat ritual—is no longer viable in a culture that no longer views homosexuality as To’evah. Maintaining it now, and discriminating against homosexuals—or executing them in the case of ISIS—causes us to violate the principle on which this law rests.

Like the confession of sins on the head of a goat sent out to the wilderness (or pushed off a cliff), by understanding the ancient context we can hold onto the principle while letting go of the specifics of its legal manifestation.

Acharei Mot – “After Death”

On the surface, the parasha is entitled “after death” because it begins with prescribed behaviors to deal with the death of Aaron’s sons. But in viewing the parasha as a whole, and applying its title to the many rituals and laws included therein, it is possible to infer a deeper meaning of “acharei mot.” In his essay entitled “Death as Homecoming,” Abraham Joshua Heschel teaches us that death “is not simply man’s coming to an end. It is also entering a beginning.”[22]

After the death of the Temple, Judaism was reborn in its Rabbinic form; after the death of the specific rituals of Israelite religion, there was a new beginning. Judaism has faced the death of many of its rituals, laws, and interpretations; but Judaism has remained alive by always being willing to embrace new beginnings.