The Great Dictate

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 A guest post by Y. Bloch

The term mitzva has become so ubiquitous that it has made the jump from Hebrew to English. Still, there is a distinction between mitz-VA in the former and MITZ-va in the latter. In English, the word refers to a good deed, a nice thing to do. In Hebrew, the word refers to a commandment, one of the 613 in the Pentateuch.
However, not all mitzvot are created equal. One famous distinction is between mishpatim (statutes) and hukkim (dictates). As studiers of Daf Yomi read last week from the Talmud (Yoma 67b):

The Rabbis taught: "'Observe my mishpatim' (Lev. 18:4) -- these are the ones that were they not written, it would have been necessary for them to be written, and they are idol worship, forbidden sexual relationships, spilling of blood, stealing and blasphemy. "And keep my hukkim" -- these are the ones to which Satan and the nations of the world object, and they are eating pork, wearing wool-linen blends, unshoeing the levir, the purification of the leper, and the scapegoat.

Thus, we would expect in this week's portion, which is named Mishpatim, to find logical statutes. In fact, the first three chapters of Mishpatim contain a dozen more mitzvot than the previous seventeen full portions -- combined. But they are not all what we would think of as mishpatim: not eating treifa, sanctifying the firstborn, celebrating the festivals and observing the sabbatical year would not seem to be self-evident common-sense laws. In fact, elsewhere (e.g. Ex. 13, Lev. 23) many of these are referred to as hukkim. Not only that, we find the term mishpat (singular of mishpatim) being applied to ritualistic laws such as offering sacrifices (Lev. 5), pouring libations (Num. 28-29) and giving the priests their meaty due (Deut. 18). The paschal sacrifice is to be offered, simultaneously, according to its hukkim and mishpatim (Num. 9:3). And then we have, in the closing chapters of Numbers, the intriguing term hukkat mishpat (the statutory dictate?) applied to the laws of inheritance (27:11) and homicide (35:29).
This seems to indicate that the categories of hok (singular of hukkim) and mishpatim are in fact fluid. Just look back at the passage from Yoma, which is analyzing the terms, used in tandem, in the preface to Lev. 18, a chapter comprising an exhaustive list of sexual prohibitions, with a dash of idolatry -- both of which are explicitly placed in the category of mishpatim, the implicitly logical rules! If hukkim are mentioned in the introduction, it is clear that the line between them is blurred and subject to change.
In fact, how could it be otherwise? What sets the hukkim apart is that "these are the ones to which Satan and the nations of the world object." Obviously, the parts of the Torah which Satan (i.e., the devils on our own shoulders) and other peoples object change over time. We used to be those weirdos who opposed human sacrifice; now we're those weirdos who keep talking about rebuilding our Temple. Our concerns about predatory lending (Ex. 22:24-26), witness tampering (23:1-2) and political corruption (23:7-8) -- to mention just three examples from the middle of Mishpatim -- are no longer quirks of a tribal law code, but the fuel for today's headlines.
Indeed, our own intellectual and moral investigation can cross this line. The law of the red heifer is considered, in many ways, the prototypical hok, and this is what the Midrash (Num. Rabbah 19:3) says about it:

"This is the dictate of the law" -- Rabbi Isaac opened with this (Eccl. 7:23), "All this I tested by wisdom and I said, 'I was determined to be wise — but this was beyond me...'" Said Solomon, "I have understood all of these, but concerning this passage of the red heifer, I investigated and inquired and introspected. Then I said, 'I was determined to be wise — but this was beyond me.'"

There was only one great dictate which proved to be beyond the wisest of all men. He had transformed everything else into mishpatim, but this hok remained.
This brings us to one particular verse in Lev. 18, the 22nd. It (and its companion verse in 20:13) are the lone sources to discuss homosexuality in Scripture. Religious conservatives seem obsessed with these two verses. Just look at some of the nearly two hundred comments on this blog about a U.S. District Court in Oklahoma finding bans on same-sex marriage unconstitutional. Or consider the vile piece by Rabbi Yair Hoffman  on The Yeshiva World, "We Are Under Attack by the LGBTPed Community." Can you guess what "Ped" stands for? Hint: it's not pedestrian or pediatrician.
Yes, I hear some of you dear readers sharpening your quills already, preparing to liken homosexuality to pedophilia, bestiality and incest. Of course such people ignore the abhorrently offensive nature of such a comparision, as well as the evidence that no slippery slope exists; Canada, for example, will mark its tenth year of gay marriage this year, and there's been no uptick in any of these.
Let's admit it: the only reason to ever say that gays may not marry is a religious one. It is a hok. It's like not marrying your brother's, father's, son's or uncle's ex. It's like not having sex during menstruation. It's like not mixing wool and linen. It is not something we can grasp with our human minds. You can recast God as Nature or Traditional Values or Cultural Morality, but there is no argument there that can stand in a court of law (beit mishpat). Most importantly, it is not something we religious conservatives (yeah, I'm one too; I'm an Orthodox rabbi) can impose on others. Nor should we want to.
So here I am, saying it for the last time: if you truly find the idea of two people finding each other and choosing to create a household and a family together so similar to goatf*cking, I really can't help you.


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