The following is adapted and reprinted with permission of the author from Does God Belong in the Bedroom?. One note of clarification: regarding contemporary authorities, the author writes that the rabbis of all movements forbid sex outside marriage. This is imprecise. While most Orthodox and Conservative rabbis do consider sex outside marriage inappropriate, most Reform and Reconstructionist (and some Conservative) rabbis are less severe in their language. The official position of the Reform movement is that sex outside of marriage is not ideal, but it is not considered “forbidden.” Few Reconstructionist rabbis would disapprove of all sex outside mar.
The written Torah never forbids sex outside the context of marriage, with the exception of adultery and incest. On the contrary, the Torah seems to assume that it is a natural part of life. For example, when Judah sleeps with his daughter‑in‑law Tamar, mistaking her for a prostitute (Genesis 38), he is never condemned for the sexual act, only for avoiding his levirate responsibilities. Similarly, when King David in his old age is unable to keep warm, a young virgin, Abishag the Shunammite, is brought to share his bed and wait on him (I Kings 1:1‑4). The Bible is natural and unembarrassed about the sexual activities of its major personalities. Although adultery and incest are explicitly forbidden, fornication is not.
It was the rabbis of the talmudic period who explicitly outlawed sexual relations outside marriage. One fascinating passage articulates the rabbinic attitude:
“Rab Judah said in Rab’s name: A man once conceived a passion for a certain woman, and his heart was consumed by his burning desire [his life being endangered thereby]. When the doctors were consulted, they said: ‘His only cure is that she shall submit.’ Thereupon the sages said: ‘Let him die rather than that she should yield.’ Then [the doctors said]: ‘Let her stand nude before him.’ [The sages answered]: ‘Sooner he should die.’ The doctors said: ‘Let her converse with him from behind the fence.’ ‘Let him die,’ the sages replied, ‘rather than that she should converse with him from behind a fence.’
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Now Rabbi Jacob ben Idi and Rabbi Samuel ben Nahmani disputed therein. One said that she was a married woman, the other that she was unmarried. Now, this is intelligible on the view that she was a married woman, but on the latter, that she was unmarried, why such severity? Rabbi Papa said: Because of the disgrace to her family. Rabbi Aha the son of Rabbi Ika said: That the daughters of Israel not be immorally dissolute. Then why not marry her? Marriage would not assuage his passion, even as Rabbi Isaac said: Since the destruction of the Temple, sexual pleasure has been taken [from those who practice it lawfully] and given to sinners, as it is written: ‘Stolen waters are sweet and bread eaten in secret is pleasant’ (Proverbs 9:17).”
The rabbis forbid this man to have sexual relations or even converse in private with this woman even though she is single and doing so would save his life. They give two reasons: protecting her family name and preventing the daughters of Israel from being morally dissolute. We see here evidence of a rabbinic morality which has developed beyond strict biblical law.
The rabbis of the talmudic era also laid down strict rulings regarding modesty and the separation of the sexes. The intermingling of the sexes in public, even in synagogue, was frowned upon. A man and a woman unrelated by blood or marriage were not permitted yihud, being alone together in private.
Through such rulings and teachings, the rabbis attempted to prevent Jews from participating in sexual relations outside marraige. However, they could not unequivocally claim that sex outside marriage was forbidden in the Torah. Only one rabbi tried to find a Torah basis for the prohibition: “ ‘Do not degrade your daughter and make her a harlot, lest the land fall into harlotry and the land be filled with depravity’ (Leviticus 19:29). Rabbi Eliezer taught: This refers to an unmarried man who comes upon an unmarried woman not for purposes of marriage.”
Rabbi Eliezer’s ruling was not accepted as the halakhah (law). After all, the Torah does permit a man to take a concubine, that is, a woman in a monogamous sexual relationship without a ketubbah (marriage contract) or the traditional kiddushin (Jewish marriage).
Maimonides, in his great code of Jewish law, the Mishneh Torah, follows Rabbi Eliezer’s lead in outlawing all sexual relations outside marriage. Before the giving of the Torah, he writes, a man would meet a woman in the marketplace, take her home, and she would become his wife. Or he would meet a woman, pay her a fee, and have a sexual encounter with her. Since the giving of the Torah, however, prostitution has become forbidden and marriage now requires a public ceremony including ketubbah and kiddushin before witnesses. Any other sexual encounter is akin to prostitution, which is forbidden by the Torah.
Maimonides’ ruling is not universally accepted. The Ravad (Rabbi Avraham ben David) criticizes the Rambam: “Prostitution is only when she is promiscuous and sleeps with any man, but if she is set aside for one man there is no prohibition. This is the concubine discussed in the Torah.”
To summarize, the accepted position in Judaism by rabbis of all movements is that sex outside marriage is forbidden. However, as we have seen, this position is not without controversy. The Torah never explicitly forbids non-marital sex. In fact, it permits the taking of a concubine, a woman who has an exclusive relationship with a man without kiddushin or ketubbah, the basic necessities of marriage. In other words, it is parallel to our modern living together without benefit of clergy. Eventually concubinage fell out of usage in the Jewish community.
At least one eighteenth‑century scholar, Rabbi Jacob Emden, sought to reintroduce the institution of the concubine into his community. In a long, technical responsum, Rabbi Emden writes that concubinage may be a solution to the sexual immorality of his own day:
“[Some say] the Ramban [Nachmanides], who permits a concubine, in our day when men are morally lax, sleeping with maid servants and forbidden sexual partners, would forbid it…It seems to me the opposite. For this reason the master [Ramban] would permit it, so that people would not commit greater offenses involving karet (excision) from the Torah. For a man with bread in his basket will not have the same burning desire to go after forbidden relations. There are similar rulings where the rabbis have permitted even something forbidden by rabbinic law to prevent a Torah transgression.”
Emden’s ruling was hardly liberal by modern standards of sexual practice. He insists that the couple observe the laws of family purity, remain absolutely faithful to one another, and enter such a relationship only in consultation with a rabbi. Even with these restrictions, Emden realized that he was proposing something radical. He ends his responsum with a referral to the rabbinic principle [based on a creative reading of a biblical verse] that “when it is time to work for the Lord, they may change Thy Torah,” which was sometimes used by the rabbis to overturn a law in the Torah.
Emden was deeply concerned about the sexual immorality in his day and was therefore willing to propose such a radical solution. He was acting upon the principle that it is better for people to engage in sexual activity that has some degree of religious sanction than in totally forbidden activity. Emden’s proposal is analogous to the ladder of holiness concept proposed by some contemporary authorities. Although living together outside marriage does not possess the same level of legitimacy as marriage, it is far better than the promiscuity prevalent in Emden’s day.
Still, most rabbis and the Jewish community as a whole rejected Emden’s proposal. The day of the concubine had passed from Jewish life. From then on sex would be permissible only within the context of marriage. Any other form of sexual activity fell short of the rabbinic vision of holiness.
Avraham
Pronounced: AHVR-rah-ham, Origin: Hebrew, Abraham in the Torah, considered the first Jew.
Torah
Pronunced: TORE-uh, Origin: Hebrew, the Five Books of Moses.
