Wednesday, June 4, 2008

A Virgin is Married on A Wednesday

A French court in April annulled a marriage between two French Muslims because the bride had lied to the groom about being a virgin. This ruling raises lots of interesting religious, political, social, and legal questions, and I would like to ignore all of them. (Eugene Volokh at the Volokh Conspiracy has a short analysis that basically seems right.) Instead, I'd like to focus on a very similar provision in the Talmud and its surprising evolution between the Mishnah (about 200 CE) and the Gemara (about 500 CE).

In traditional Jewish law, there is no requirement that a bride be a virgin. And many of the particular rules (including the following one) have been relaxed or modified in later times. But the Talmud makes a distinction between when a virgin and non-virgin are married and for an odd reason.

The first Mishnah in Ketubot (or Kesubos, depending on who your friends are) is "A virgin in married on a Wednesday, and a widow on a Thursday." (Ket. 2a.) The Mishnah explains that since courts met on Mondays and Thursday, if the groom had an issue about his bride's virginity, he could immediately go to court the following morning. This raises a zillion issues, and the Gemara jumps right in.

One practical problem is how does the groom know that his wife is not a virgin? The Talmud suggests two possibilities (and sorry for the explicit language here): if the groom finds that his wife has an "open opening" (a petach patuach) or finds the absence of blood, these suggest a lack of virginity. (Ket. 9b.) Note that neither test is all that reliable, and there is the practical question of how the groom has acquired such expertise in both the openness of openings and in hematology.

The Gemara then recounts a series of six stories involving a husband challenging or questioning or doubting his wife's virginity. (Ket 10a - 10b.)

In the first story, a groom comes to R. Nachman and says that he found an "open opening". Without hearing anything further, R. Nachman immediately order that the groom be lashed with palm branches because he must have visited prostitutes to have known this. (Ket. 10a.)

What a surprising twist. The groom's underlying complaint is completely ignored. R. Nachman changes the subject from the bride's virginity to the groom's conduct and summarily punishes him. No hearing and no evidence. Not even the opportunity for the groom to explain. Just immediate lashes.

In the second story, R. Gamliel explains that the complaining groom is probably mistaken and entered at the wrong angle. (Ket. 10a.) This is followed by two analogies to entering at an angle. Again, the rabbi hears no evidence; he simply throws obstacles in the way of the complaining groom.

And so it goes, through all six stories. (My favorite: the wine-barrel test. You can look that one up. Suffice it to say that there is no way that the wise R. Gamliel bar Rebbi could have believed that the test would provide any useful information.) In all six stories, the groom's complaint is ignored, dismissed, or rejected, often on pretty shaky grounds.

What is going on here?

A little legal realism goes a long way here. The Gemara rabbis are simply doing justice, not following the strict letter of the law.

Under the strict letter of the law, the groom has marched into court with a plausible complaint, just as the Mishnah says he should. He might prevail or he might not, but like anyone with a plausible complaint, he is entitled to his day in court.

But the practical aspects of the story are much bigger. The two "tests" for virginity are not very reliable. And a wedding night, especially for a younger and inexperienced groom, is a highly confusing and emotional time. The groom might have had unrealistic macho expectations about what it was all about. He might have been terrified and not known what to expect. He might have had too much to drink at the wedding. There are lots of reasons to want to keep this groom out of court.

The consequences of erroneously believing the groom would often be devastating on the wife: an immediate divorce and a blackened name. And the consequences of erroneously believing the wife's claim that she was a virgin would be considerably smaller: a continuing marriage between two people who, at least until the night before, wanted to be married. All in all, there is no great practical reason to let these cases into court. But we have the explicit statement in the Mishnah that the reason a virgin is married on a Wednesday is precisely to allow the groom to come into court on Thursday if he finds, or thinks he finds, a problem.

The rabbis could not change the Mishnah. But they could circumvent it, at least within some broad parameters. And as these six stories show, they did exactly that.

One quick comparison with American law. American law has a built-in mechanism for evolving in the face of problems or changed circumstances: we can amend statutes and overturn cases. Accordingly, there is little or no reason for American judges to engage in creative interpretation to avoid a problematic law.

But halacha lacks such a mechanism for change. In fact, numerous interpretive rules make change even more difficult that it otherwise would be. This makes sense if the written and oral law were literally given by God and the earlier sages were on a higher spiritual plane than later ones. But if this is not the case, then employing these rules will, over time, simply ossify bad or outdated laws.

The rabbis of the Gemara realized this problem, at least in some extreme cases. And they were willing to be flexible where they needed to be. It might be that liberal Judaism, and specifically Conservative Judaism, with its greater flexibility towards changing halacha, is the true ideological heir to the Talmud.

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