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Parshat Emor 5774/May 3, 2014
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Was the "one whose mother was Israelite and whose father was Egyptian" a Jew by birth?
By Alexander Klein*
The Halakhah on "who is a Jew?"
It is well known that the status of a child born of a mixed marriage is determined by that of
his mother. This rule appears in the Mishnah (Kiddushin 3.12): "Any woman who has no
[kiddushin] from one [who had betrothed her] nor from any other man, the offspring is of
her own status. And which is such? The offspring of a bondwoman and a non-Jewess." The
gemara interprets the verse, "You shall not intermarry with them:
do not give your
daughters to their sons or take their daughters for your sons. For they will turn your
children [Heb. binkha] away from Me to worship other gods" (Deut. 7:3-4) as follows: "Your
offspring born of an Israelite are called your children; but your offspring born of an idolatress
are not called your children, rather her children."1
*
Dr. Alexander Klein is a statistician in the Department of Mathematics and teaches at the High
School for Technology, Jerusalem.
1
Babylonian Talmud, Kiddushin 68b.
1
All hold that when the Torah says binkha this refers to your grandchild. According to Rashi,
"for they will turn…" means that they—the gentiles—will draw your grandchild to idolatry,
which would be most unfortunate since the child is a Jew.
Maimonides, however,
understands differently: in his view, "for they will turn…" refers to the proximate case,
namely when the mother is non-Jewish, and the "turning away" that is mentioned refers to
the fact that your offspring will not be Jewish.2
Substantiation for this ruling also comes from the time of Ezra.3 For we read in the prophet
(Ezra 10:2-3):
Then Shecaniah son of Jehiel of the family of Elam spoke up and said to Ezra,
"We have trespassed against our G-d by bringing into our homes foreign
women from the people of the land, but there is still hope for Israel despite
this. Now then, let us make a covenant with our G-d to expel all these
women and those who have been born to them, in accordance with the
bidding of the Lord and of all who are concerned over the commandment of
our G-d, and let the Teaching be obeyed."
Since "those who have been born to them" were expelled, we conclude that the children
born to the non-Jewish women were considered gentiles.4
So we conclude that according to the Halakhah a Jew is someone born of a Jewish mother,
regardless of the identity of the father. Many have attempted to understand the reason for
2
Mishneh Torah, Hilkhot Issurei Bi'ah 12.7. Also see Tosefot, s.v. "binkha ha-ba mi-Yisraelite karui
binkha," loc. cit.
3
Thus we cannot accept David Daube's hypothesis that this halakhah was reinstituted after the
destruction of the Second Temple, with the aim of legitimizing the many children who were born in
the wake of Jewish women having been raped by Roman soldiers (David Daube, Ancient Jewish Law,
Leiden 1981, pp. 27-28).
4
Therefore Judge Moshe Zilberg notes:
"Also a historian who does not believe the Sages'
words…must admit—for otherwise he would be an ignoramus—that the halakhah of matrilineal
descent existed among the Jews at least from the period of Ezra (Supreme Court 58/68, Shalit v.
Minister of Interior, 58/68, note 7). Daniel Friedman ("Ha-Ratzahta ve-gam Yarashta, Mishpat,
Mussar ve-Hevra be-Sippurei ha-Mikra," Tel Aviv 2000, pp. 382-388) indeed acknowledges this fact
but maintains that the prohibition against mixed marriages was Ezra's creation, due to the shaky
political condition of the Israelites at the time. I do not think this view should be accepted, for it does
not match what is said in Scripture and contradicts the words of the Sages.
2
this ruling: firstly, why should not the identity of the offspring depend on the identity of
both parents; and secondly, if the status of the child is to be determined by that of one
parent, alone, why not the father? After all, many rules of Halakhah in the Torah and in the
works of the Sages present a patriarchal structure as the basis for other practices and laws.
The characters in the Bible are for the most part introduced only according to the father's
lineage, the laws of inheritance and disposition of reinforce the claim of patrilineal descent,
the priesthood passes from father to son, etc.
Although Rabbi Weinberg5 stresses that we do not know for certain the reasons for the
commandments, he nevertheless suggests three explanations for the status of children
being determined by the status of the mother:
1) Biological: the offspring is formed primarily by the mother.
2) Cultural: most of the child rearing is done by the mother.
3) Practical: the identity of the mother is known for certain, but not that of the father.
Corinaldi adds one more reason:6 in his opinion, "the explanation of the riddle of the Jewish
identity (of a child born to an Israelite woman and a gentile man) depends on the
assumption: every child has lineage, but the Talmudic halakhah denies fatherhood to the
gentile.7 So the son of an Israelite woman by a gentile is considered fatherless, forcing us to
go by his Israelite mother." This explanation, however, raises a certain difficulty: if so, why
does the child not go by the Jewish father when the mother is a gentile? In his opinion, Ezra
legislated that the child of a gentile woman be considered a gentile, ruling contrary to what
had generally been accepted up to then, namely that if the father was Jewish and the
mother gentile, the children would go by the father.
This hypothesis, however, is
problematic.
A) It does not follow from the Sages' remarks that the halakhah of matrilineal descent
underwent alteration in the course of history. Nor is there any hint of this in the book of
Ezra.
5
Rabbi Yehiel Jacob Weiberg, Resp. Seridei Esh, Jerusalem 1969, Part 4, p. 383.
6
Michael Corinaldi, Le-She'elat "Mi-hu Yehudi?": "Ben Isha Yisraelite" o "Ben Ish Mitzri"?, Parashat
Emor, 2002, issue 72 (http://www.daat.ac.il/mishpat-ivri/skirot/72-2.htm).
7
In the words of the gemara, "the All Merciful declared their children to be legally fatherless"
(Yevamot 98a).
3
B) Why would Ezra institute a ruling that so opposed accepted practice—according to
Corinaldi—as to decide that a Jew should receive the status of gentile?
C) Nevertheless, a person whose father is Jewish and mother gentile cannot be regarded
equally as someone who is entirely gentile. Such a child is considered by certain rabbinic
authorities as of "Jewish stock" and should be treated leniently in matters of conversion to
Judaism.8
The case of the blasphemer
The implication of the story in this week's reading is actually the opposite; that is, the son of
a gentile and a Jewess is considered gentile. For Scripture says (Lev. 24:10-11):
There came out among the Israelites one whose mother was Israelite and
whose father was Egyptian. And a fight broke out in the camp between that
half-Israelite and a certain Israelite.
The son of the Israelite woman
pronounced the Name in blasphemy, and he was brought to Moses—now
his mother's name was Shelomith daughter of Dibri of the tribe of Dan.
Who was this son of an Israelite woman? According to legend, during the Israelites' bondage
an Egyptian taskmaster desired Shelomith daughter of Dibri. Early one morning, before
sunrise, he kicked her Israelite husband out of the house, then returned himself and,
pretending to be her husband, had intercourse with her, fathering the "son of the Israelite
woman."9
The contrast between the attributions, "son of an Israelite woman," on one hand, and
"Israelite man," on the other, would seem to indicate that the former was not considered an
Israelite. Moreover, the legend notes that this person converted to Judaism,10 implying that
conversion was necessary for him to be considered Israelite. Nahmanides, in the name of
the Tzarfatim,11 explains this requirement:
8
See Yoel Shiloh, "From the 'son of an Israelite woman' to 'Jewish stock': On the Jewish Status of
Immigrants from the Former Soviet Union," Bar Ilan University's Parashat Hashavua Study Center,
Parashat Emor 2010.
9
Exodus Rabbah 1.28. Also see Rashi on Ex. 2:11.
10
Sifra, Weiss ed., Vienna 1862, Emor, ch. 14.
11
Chavelle (redactor of Nahmanides' commentary on the Torah) notes that he does not know who
these Tzarfatim [Frenchmen?] were.
4
The reason for his proselytism was that it preceded the giving of the Torah,
and his legal status followed the male in accordance with the statement that
"the other peoples follow the father."12 When this child was born he was
not circumcised, for he was by law an Egyptian; but when he grew up he
converted of his own choice and was circumcised.
The Tzarfatim believed that before the giving of the Torah, when the Israelites were still in
the category of "the nations," the general rule was patrilineal descent.
Nahmanides,
however, does not accept this argument, for he holds that ever since Abraham was
commanded regarding circumcision his family line was considered the "people of Israel,"
with all that is entailed thereby.
If so, why does the legend speak of conversion?
Nahmanides resolves this difficulty as follows:
The reason Scripture speaks of "an Israelite man" and the "son of an Israelite
woman" is to teach us that when a gentile has intercourse with a Jewess, the
child that is born is not Jewish. Even though the gemara (Yevamot 45a)
rules that when a gentile has intercourse with a Jewess the child born is
Jewish [lit. "kosher"], whether the woman was single or married, still they
said that the child is tainted and unfit for the priesthood, and furthermore
he is not a Jew by ancestry as regards tribal affiliation and inheriting the
land, for it says "according to the listings of their ancestral tribes" (Numbers
26:55).
As for Torat Cohanim saying that the expression, "among the
Israelites," indicates that he had converted, this does not mean that he
required conversion except as all the Israelites did, entering the covenant by
circumcision, ritual immersion, and sprinkling of blood when the Torah was
given (Kritot 9.1); rather, it means to say that he followed his mother's ways
and adhered to the people of Israel. So this is the reason it says "among the
Israelites," namely, that he was with them and did not want to follow his
father and be Egyptian.
According to Nahmanides, the Torah means to note simply that the son of the Israelite
woman was in the class of those who are "unfit for the priesthood," as follows from the
gemara,13 and neither was he entitled to an inheritance in the land of Israel nor was he
12
Babylonian Talmud, Yevamot 78b.
13
The law on being "tainted for the priesthood" pertains only to the daughter of a gentile man and a
Jewess: a priest is forbidden to marry such a woman.
5
permitted to pitch his tent along with the tribe of Dan. His conversion, however, was no
different than the conversion of other Israelites.
Nevertheless, the point of the Tzarfatim seems to be well taken: after all, Rebecca, Rachel,
Leah, Osnat, Judah's wife, the wives of Jacob's sons,14 and Moses' wife Zippora were not
descended of our patriarch Abraham.
Incidentally, there is evidence that not all the Sages were of like mind regarding matrilineal
descent. A midrash15 tells of Rabbi Haggai instructing that Jacob of Kefar Nevoraia, a Sage
living in Tyre, be flogged because he wished to permit the son of a Jewish father and a
gentile mother to be circumcised on the Sabbath.
He based his view on the verse,
"registered by the clans of their ancestral houses" (Num. 1:18), from which it clearly follows
that the status of the child is determined by that of the father. Rabbi Haggai, however, told
him that "he had not instructed well," rather, the ruling should be based on the verse, "do
not give your daughters to their sons, etc.," cited above.
Jacob of Kefar Nevoraia apparently gave in and accepted Rabbi Haggai's opinion. Moreover,
an opinion is presented in the midrash that Jacob of Kefar Nevoraia was considered an
epikoros [heretic].16 Thus we see that the law of matrilineal descent was generally accepted
by the Sages without having to tie it to the interpretation of the verse.17
Translated by Rachel Rowen
14
Regarding Jacob's sons there is a dispute in the midrash as to whether they married their sisters or
Canaanite women (see Yalkut Shimoni 143).
15
Tanhuma (Buber ed.), Hukkat 15; also cf. Jerusalem Talmud, Yevamot 2.6.
16
Ecclesiastes Rabbah (Vilna ed.), chapter 7.
17
After all, the interpretation by Jacob of Kefar Nevoraia is closer to the plain sense of Scripture than
the Sages' interpretation of the verse, "do not give your daughters to their sons…"
6