Evidence that Lesbianism was a Capital Crime in First-Century Judea

“What evidence is there that lesbianism was legally a capital crime in Jewish law?”

This is a jackpot question.

At the outset, let me emphasize that Jewish law includes two basic sources, not just one source.

The first source is, obviously, the Torah.

The Second Source is the Talmud. I need to clear up a misunderstanding that is common in Christian circles.

The Talmud is often called a commentary on the Torah. This is absolutely correct. But the common Christian understanding of the words “Torah” and “commentary” different from than Jewish scholars.

Most Christians understand the Bible as a source of stories and doctrine. Historically, the Torah was the primary text by which Jews governed their nation. It is a law book, a legal code, which Christians are used to dismissing, since they are not under the law.

In the first-century, Jerusalem governed a nation. Their laws were not simply “dietary laws”, they were laws that governed every aspect of commerce, crime, property rights, etc.

The Talmud is a commentary on the Torah in the same way that a three-volume commentary on the US Constitution is essentially, intrinsically a legal document.

The Talmud is not what Christians think of as a commentary, which can be Calvinist, or Wesleyan, or take a critical approach to a Biblical text.

Legal doctrine and theological doctrine are quite different. In a multicultural, diverse society, theology is mainly a matter of thought and internal understandings. Legal doctrine determines how the police view law enforcement, how attorneys apply the law, and how judges interpret cases and render judgments.

Forgive me for being so pedantic, but these differences really affect our discussion, and how we understand the words we use.

The Talmud is more like a law school commentary on the US Constitution, and less like a seminary commentary on the Book of Psalms.

Second Temple era scribes and Pharisees were running a country, not a congregation or a denomination.

But the law had to be applied to new and evolving circumstances. Reasoning needed to be applied to existing law.

The problem faced by the Jewish government was that the law was envisioned as being directly from God, unchangeable Law from an unchanging G-d. You csn’t monkey around with God and his law.

I have seen California ballot measures that use the strike through type font. This indicates the text of a law that is being deleted or canceled. The ballot measure then includes the replacement verbiage.

You can’t just use the strike through font when adjusting the application of the Bible. This was G-d’s law you were talking about.

The most basic set of rabbinic rules of interpretation are called Hillel’s Seven Principles of Biblical Hermeneutics. An overlapping and expanded set of rules are called Akiba’s Rules of Interpretation.

We lay people tend to complain about the multiplication of laws and the complexity of interpretation. It’s common to read something like, “The Old Testament expanded the original ten commandments to 613.” Today people complain about complexity, and the literally countless number of federal rules and regulations which have the power of law.

The Talmud is an example of the complexity of Jewish law, originally based on the Torah.

Now, as if that weren’t complicated enough, add two new laws, add the complexity of two binding Roman laws.

1) Subject peoples may not impose the death penalty.

Only a Rome-approved magistrate may impose the death penalty. A local death sentence must be reviewed and approved by such a magistrate.

2) A subject people may not impose their laws on a neighboring subject people. In this regard, every territory and subject people is self-governing.

Restrictions like these required a lot of adjustment on the part of local governments. These kinds of restrictions were a necessary part of conquest and occupation.

Taxation and tribute were not the only accommodations a conquered people had to make.

Which brings us to the opening question. “What evidence is there that lesbianism was legally a capital crime in Jewish law?”

A Talmud scholar could give you a complete answer. And even then, you could receive several different explanations or refutations.

ySanhedrin 7.5 is a small section in the Talmud. (Yes, the spelling is correct. The document is called ySanhedrin.)

There are two Talmud texts that argue for the death penalty for gay gentiles and lesbian gentiles apprehended having sex with Jews.

I did not discover these texts while studying the Talmud. I found them doing a word search using Yohanan ben Zakkai’s name and other search terms. I don’t recall what the other search terms were.

Jacob Neusner, the author of the source in which I discovered the yDanjedrin passage, did not use the word lesbian in his text.

I actually had this text in my possession for a long time before I realized what I’m about to explain. It is not immediately evident.

ySanhedrin 7.5 is divided into three sections. The first section is a prohibition of bestiality. The second section is the extrapolation I described earlier, where the rabbi extends its applicability to another crime.

The beast, in this case a cow, is extrapolated to include a human being. The third section, which is indicated by the phrase “behold, it is a deduction, is a further extrapolation for the benefit of a Rome-approved magistrate.

As you can see, this is a very complex document. First comes a generally accepted law prohibiting a human being from having sex with an animal. Next comes the extrapolation of this law to include human beings.

Now the question becomes, if sex with people other than a spouse is already prohibited in great detail, including in-laws, extended family, and the rest, then why would it be necessary to use this convoluted language to add yet further prohibitions against common adultery and fornication?

It seems like the rabbis wanted to have a legal ground work for prohibiting certain other sexual behaviors, without falling into the trap of putting ideas in people’s heads. Bestiality is quite enough.

Convoluted language was the necessary result.

I believe that the prohibition against bestiality ultimately served a variety of applications to other specific sexual behaviors.

I believe the prohibited sexual behaviors included sex with gentiles, and same-sex relationships.

The Talmudic change in nouns and pronouns, from beast to cow to he to she, is part of a built-in extrapolation potential.

Thus, this very early rabbinic record preserved in ySanhedrin 7.5 can/could be utilized in cases of a woman having sex with either a man or a woman, a beast or a human, against homosexuality or bisexuality.

The legal commentary is so legitimately complex that most Christians are unable to see the Talmud’s subtlety, utility, and brilliance.

Outsiders, non-jurists, are generally unable to see past the specificity of dill and cummin. This is as it should be. After all, the text was not meant for us, we can’t use it in court.

The third section of ySanhedrin 7.5, the section introduced by the phrase “Behold, it is a matter of deduction”, Is where Yohanan b. Zakkai translates a Jewish judicial truism into language that a Roman magistrate could not only understand, but could actually act upon if so inclined.

I suspect that the first two sections of ySanhedrin 7.5 were in common usage in Judean courts prior to 70 CE. The need for Torah hermeneutics did not spring into existence with the destruction of Jerusalem and the Temple. The Judean Temple state had been maintaining law and order through the courts for many hundreds of years prior to the churban of the Second Temple. Such law enforcement included regulating the behavior of both Jews and gentiles.

I will publish the text of ySanhedrin 7.5 below, but I would like to make a final comment first.

When we discussed this ancient passage, it is important to distinguish between several things. First, there is the original verse about bestiality. Second, there is the application made by the rabbis. Third, there is Rabbi Yohanan’s explanation of the formula to the Rome-approved magistrate.

Fourth, and finally, there are our own rhetorical and polemical circumstances.

Different audiences view ancient scriptures differently. Some audiences depend on scripture very importantly, it matters to them what the scriptures say.

Other audiences don’t care at all what the scriptures say. They are totally irrelevant.

For those who view the Talmud as vitally important to their personal faith, it makes a great deal of difference whether the texts condemn homosexuality, or support LGBTQIA+ tolerance and diversity.

Anyone who is familiar with my blog knows that I have a gay son, and have spent a lot of time debunking the Clobber Passages.

To some people, it will seem ironic that I am arguing that some ancient rabbis were not inclusive.

ySanhedrin 7.5

(Note the transgression, the human application of the original non-human animal example, and the phrase, “Behold, it is a matter of deduction”)

ySanhedrin 7.4

And so too, if a woman approaches any beast and lies with it, you shall kill the woman and the beast, they shall be put to death, their blood is upon them (Lev. 20:16). If the woman sinned, what sin did the beast commit? But because there came upon man confusion on its account, Scripture said to kill the beast, that the cow should not go into the market place and people say, “See, there is the cow on whose account so-and-so was put to death.”

Yoḥanan b. Zakkai’s commentary follows here. [Neusner’s comment.]

And behold, it is a matter of deduction: If in the case of the beast, who has neither merit nor demerit, because on its account man was brought into confusion, Scripture said to stone it, a man who causes his fellow to sin, and leads him from the way of life to the way of sin, how much the more (will he suffer).

(Neusner, Life, note 1, pp 93-94)

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Two Couples, Two Cities, Two Trials

Now about the two trials I mentioned., the ones in Chorazin and Bethsaida. Please remember these two trials were basically lost to history. There are details written down over here, some details are down there, there are a few details written over here, but it would seem that nobody ever told the whole story of these trials.

In many ways trials today are the same as trials were then. There was a judge, there was a prosecutor, and there were defendants.

And each of these groups kept its own kinds of records, just like today.

Now the prosecutor was a Jewish official, and his records ended up in the Talmud. Several of the actual documents he used in court were saved, and are still in the Talmud, all these years later.

Most people don’t know this, but there were actually four defendants in Chorazin and Berhsaida. We know this from Luke 17, those two couples that are described in verses 34 and 35: two men and two women.

Now this trial was a really big deal at the time. Think O.J. Simpson. Think Rodney King. Think Sacco and Vanzetti. The defendants had a lot of sympathizers. There were lots of issues in this trial: the tension between Jews and gentiles, sex, border disputes, collaborators, the works.

There were sting operations, there was eavesdropping, there were trials, there were controversial verdicts, and there were executions,

Hardly anyone liked the verdicts. The prosecution didn’t like the verdicts. The defendants didn’t like the verdicts. Only the Romans liked the verdicts, because the verdicts were fair, and they kept the peace between hostile factions.

Now contrary to popular ideas, Rome wasn’t just busy imposing its will on everybody. Rome was, however, busy keeping local groups from bullying one another, and imposing their will on neighboring tribes.

Every local tribe could run its own business and govern its own people, pretty much without interference, except they couldn’t impose the death penalty.

One tribe could not impose its laws on another tribe. The government of one tribe could not punish the members of another tribe. Otherwise there could be war. A big part of the famous Pax Romana was keeping tribes out of one another’s business.

Every tribe was allowed to govern its own people according to its own laws. When it came to conflicting social norms between different tribes, it was a matter of live and let live. Each tribe lived its own life, by its own rules.

The main thing Rome was interested in was maximizing its tax revenue. Gotta keep that gold and silver coming in. To do this Rome maintained the  peace and kept the roads safe between various regions. And almost more than anything else, they kept the peace between neighboring tribes.

As I said earlier, the one thing Rome prohibited the local governments from doing was executing capital crime. Rome and Rome’s surrogate rulers were the only entities that could impose the death penalty.

Philip the Tetrarch was one of these surrogate rulers. He was ethnically Jewish. Philips territory ran west to east in what we call Syria today, north of what we call Israel. He was one of the sons of Herod the Great. His brothers were Herod Antipas and Herod Archelaus.

Regarding the two trials, one of the most important things about Philip’s territory is that it included Chorazin and Bethsaida, those two cities at the northern tip of the Sea of Galilee.

Two couples, two cities, two trials. Two mysteries solved.

Mystery One: There is no evidence in Luke 17:34-35 to explain for the difference in treatment of the two couples.

Language-wise, there is very careful parallelism in the two verses, so much parallelism that the early editors of the material couldn’t do much to adapt it into a nice tidy parable, a nice tidy package. The only place the Luke 17 couplet found a real welcome, a real home, was in the notion of the rapture.

What was Luke 17:34-35 even about? Why was it in the form it was in? Was it better to be taken or to be left? What was the difference between the people in the first place?

Mystery Two: There are no details in Luke 10:13 about what happened in Chorazin and Bethsaida to account for such a strenuous condemnation.

This is one of the most severe condemnations anywhere in the gospels, but we are to believe that there is no explanation for it.

There is a significant clue, however. In the verse immediately before, Luke 10:12, there is a comparison to one of the more significant cities in the Hebrew bible.

“I tell you, it will be more bearable on that day for Sodom than for that town.”

That is the verse immediately preceding the condemnation of Chorazin and Bethsaida.

Is it possible that the disturbance in those two cities is related to what happened in Sodom?

Remember what we have in Luke 17: two men in one bed and two women grinding together. And remember what we have in Luke 10: references to two cities and a third: Chorazin, Bethsaida, and Sodom.

Two couples, two cities, and two mysteries. And smack in the middle of both mysteries is language that points directly to same-sex relationships.

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Surviving this Upheaval

I wrote this to a comrade of mine:

What you said is important:

“I realized at that moment that the kind of finesse and [indistinct] I normally have been known for was just not going to work anymore.”

They say that when the culture is undergoing a paradigm shift, mysticism becomes popular in the church as it transitions from the old paradigm to the new.

Some have called this the Dark Night of the Soul, where all previous anchors are removed and we must move forward in darkness and unknowing.

Bonhoeffer had his Religionless Christianity, when logic and orthodoxy and values were useless to provide a rational, familiar framework for one’s life.

You and I are both in a transition. Pope Francis just ok’d same-sex civil unions. American Catholicism is reeling from sexual scandal.

American Evangelicalism is facing the reality of its own Will to Power.

Historically, Christendom has weathered paradigm shifts before. But our particular cohort has never experienced this before. The sheep are alarmed and confused. The shepherds are alarmed and confused.

Primate intelligence evolved and thrived because individuals in the species were able to solve real-life problems, problems of making better tools, working out more efficient social structures, etc.

Disciplines like theology and philosophy had a valuable role, but our species did not evolve because of language analyzing language, but intelligence analyzing actual threats to survival.

You and I and others must reacquaint ourselves with trusting the still small voice, aka intuition, aka tacit knowledge.

We must reacquaint ourselves with real threats to our thriving as a species, with the various things that motivate our fellow primates, and learn as individuals where we fit and what we do best.

Instead of saying “People need to be more kind and loving” we need to ask “How can we reduce excess conflict, and what is keeping me from being more effective in my tribe?”

As an intellectual fundamentalist I was used to enduring my own embarrassment at the historical (the Inquisition, the Klan, etc ) and contemporary actions (Moral Majority, etc ) of other Christians.

As a non-theist, I am learning to accept the unchangeable thought life (embedded instincts and ideology) of other tribes in my herd, embrace the awfulness of the Yin Yang, my essential One-ness with the Other, which Other is in our day the protest of the “Trump Mass”.

I am driven by my own intelligence-moderated instinct package, just as Steve Bannon is driven by his, just as you are driven by yours.

You said, “I realized at that moment that kind of finesse and [indistinct] I normally have been known for was just not going to work anymore.”

If we are going to survive this upheaval and thrive as a population, you and I must trust the intuition and tacit knowledge and mysterious problem-solving abilities given us by Providence.

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It’s Our Turn

I have read and enjoyed much of Bonhoeffer and SK. Both of them were inspirations for me for decades.

For me, the reality of our species as mammals, as many vast herds of hairless large-brained primates with vocal boxes and opposable thumbs and a repertoire of over a dozen instincts–this is the reality in which every tribe and herd on the planet lives–whether we acknowledge it or not.

The National Socialists, and the newly energized factions all inspired by Trump, they are not the Other, they are us. We are all members of one vast herd.

When we feel repelled, angry and baffled, our responses will include, “There, but for accidents of heredity and settlement, go I, go us.”

In other words, “That could be me.”

All these heroes– Bonhoeffer, Kierkegaard, Nietzsche–long dead, inspired me at various times in my sojourn.

Now it’s our turn. Just as Bonhoeffer’s futile example inspired me, our example might inspire a sliver of the population fifty years hence.

They will be able to say, “Well, thank God some people didn’t fall under his spell. Thank God not everyone succumbed to racism and brutality and fascism. There were brave people who resisted, even if they didn’t stop the juggernaut.”

Now it’s our turn.

For Further.Reading, Click Here

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What’s the Difference between Individuals in Luke 17:34-35? Why were Two Seized and Two Let Go?

These two verses have puzzled both casual Bible readers and serious Bible scholars for centuries. Because of how the passage was edited and amended, we’re supposed to believe that it refers to the last judgment, ang God is the judge. But on what basis? If the passage is a warning, what are we being warned against?

Luke 17:34-35 is not about a final judgment. It is not about God. It is not about a futuristic eschatological destiny.

These verses are a trial summary, a verdict in an actual trial. The defendants were two couples. Each couple was mixed ethnicity, what we might call interracial, Jew and gentile. One was subject to The Law, one was not.

That was the reason for the differing treatment.

The charges were the same: sexual activity with someone of the same gender.

This was a crime for Jews since Jews were subject to the Torah and its legal extrapolations. But only Jews (generally speaking).

But gentiles were not subject to Torah. They couldn’t be charged with a Torah crime the way a Jew could.

But the crime was not based on territorial boundaries, which is what we’re used to.

Imagine you’re a Jew, and you’re forbidden to eat shrimp. There’s no shrimp restaurant in Jerusalem.

So you travel to Damascus. There’s a shrimp restaurant, and you go in and eat a bowl of shrimp.

If Saul of Tarsus is nearby, and he has his papers on him, he can arrest you for Torah violation and take you to Jerusalem to stand trial.

He arrests you not because you’re in Jerusalem, because you’re not. He arrests you because you’re a Jew breaking the Jewish law.

A Jew was forbidden to have gay sex anywhere, in Jerusalem, Damascus, or Rome. If a duly authorized person, like the Pharisee Saul of Tarsus, so long as he’s got his I.D. on him (his papers), can arrest you and take you to a Jewish court for trial no matter where he catches you.

A gentile could be prosecuted under Jewish law ONLY if the local magistrate were authorized by covenant or custom to impose Torah on gentiles, only in a Jewish court.

There was one law for the Jew and the non-Jew alike according to Exodus 12:49 and Leviticus 24:22. But this could be enforced only in a Jewish court.

Obviously a gentile from Gadara could not simply say, “I’d like to kill someone. I think I’ll go to Jerusalem next week.” The government had to protect it’s people. There had to be ways to maintain order.

But in one of the towns on the periphery, a town that was half Jews and half gentiles, the situation was not so cut and dry. At the village council, a thief would be convicted by a mixed court of Jews and non-Jews. But convicting a gay or a lesbian would not be a guaranteed slam dunk in a community with social diversity.

Those verses, Luke 17:34-35, they are a trial summary from a Roman court. In the Roman court, the gentile defendants could not be judged by Jewish laws because they weren’t Jewish.

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To see a list of other posts related to the Evidence, the Bethsaida Trial and the Gay Jew Jesus, click here.

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“Jesus was a Gay Jew. Evidence Please.”

Recently someone left a simple, reasonable FB comment: “Jesus was a gay Jew. Evidence please.”

In this post I am providing that evidence in one place. I will provide a brief introduction, as brief as possible.

The evidence I found is a bit complicated, but it isn’t brain surgery.

Josephus’ Antiquities of the Jews

Among the many significant details in Josephus’ brief description of the rule of Philip the Tetrarch, the thing to note now is the focus on his judicial practice and style.

About this time it was that Philip, Herod’s brother, departed this life, in the twentieth year of the reign of Tiberius: after he had been tetrarch of Trachonitis, and Gaulanitis, and of the nation of the Bataneans also, thirty-seven years.

He had shewed himself a person of moderation and quietness in the conduct of his life and government. He constantly lived in that country which was subject to him.

He used to make his progress with a few chosen friends. His tribunal also, on which he sat in judgment, followed him in his progress: and when any one met him, who wanted his assistance, he made no delay, but had his tribunal set down immediately, wheresoever he happened to be; and sat down upon it, and heard his complaint. He there ordered the guilty that were convicted to be punished: and absolved those that had been accused unjustly.

Josephus, Antiquities of the Jews 18.4.6 

Philip the Tetrarch ruled nearly 40 years over the territory that included Bethsaida, from 4 BCE to 34 CE. Subject peoples handled justice matters internally, except for death penalty cases and conflicts between peoples. Philip’s territory was majority Bedouin Arab with a small number of Jews. In this passage Josephus does not mention Jews among Philip’s subjects, although he mentions them elsewhere.

Talmud

These passages are from the major Rabbinic legal code, the Talmud. As such, they describe the trial, and practices associated with the trial, from the perspective of law enforcement and prosecution.

In the following passages note the following four items. First, Yohanan b. Zakkai was located in Galilee, which we learn from the mention of ‘Arav, a small town located in Upper Galilee.

Second, notice that Yohanan b. Zakkai answers a question posed by a person labeled “Antigonus the Prince”. The Antigonus figure appears several times in the Talmud asking for legal clarification from R. Yohanan.

Historically, several notable figures are named “Antigonus”, all of whom were long dead by the time Yohanan b. Zakkai was born.

A third notable element is the detailed paragraph on entrapment technique and goals. Some experts have noted that “Ben Stada of Lod” was probably Jesus, and that the mode of execution was stoning.

The fourth thing to note are the three legal arguments for charging and sentencing sexual transgressors. I believe these arguments are actual trial documents called formularies. Formularies evolved in Roman courts for cases involving peregrines (non-Romans) for efficient, less ritualized trials.

The phrase “behold it is a deduction” in the Massekhet Semahot and ySanhedrin passages is the sign that Jewish legal language is being translated into Roman legal principals.

These first three passages, “Zakkai’s Formularies”, are arguments for the execution of entities not typically subject to Torah, and are all related to sexual transgression. These are legal “work-arounds” to enforce the execution of gay and lesbian gentiles.

Mishnah Sanhedrin 1:2; Tosefta Sanhedrin 3:2

Antigonus the Prince asked Rabban Yoḥanan ben Zakkai, “The ox will be stoned and the master also die (Ex. 21:29). Why?” 
He said to him, “The accomplice of a thief is like a thief.” 
When he went out, the student asked, “Master, this one you pushed away with a reed, but to us, what will you reply?” 
He said to them, “It is written, The ox will be stoned and also its master will die… 

Massekhet Semahot 8.7

The dorshe hamurot used to say, You shall surely destroy all the places where the nations whom thou shall dispossess served their gods, upon the high mountains and upon the hills, and under every green tree; you shall tear down their altars, and dash to pieces their pillars (Deut. 12:2-3). How did the wood and stones sin? But on account of them there came upon man confusion, and therefore Scripture said, You shall destroy their altars.

And behold it is a deduction: If in the case of stone and wood, which have neither merit nor demerit, neither good nor evil, because on their account confusion comes upon man, Scripture said to destroy their altars, a man who causes others to sin, and turns them from the way of life to the way of death, how much more so will he suffer.  

ySanhedrin 7.5

And so too, if a woman approaches any beast and lies with it, you shall kill the woman and the beast, they shall be put to death, their blood is upon them (Lev. 20:16). If the woman sinned, what sin did the beast commit? But because there came upon man confusion on its account, Scripture said to kill the beast, that the cow should not go into the market place and people say, “See, there is the cow on whose account so-and-so was put to death.” 

Yoḥanan b. Zakkai’s commentary follows here. [Neusner’s comment]

And behold, it is a matter of deduction: If in the case of the beast, who has neither merit nor demerit, because on its account man was brought into confusion, Scripture said to stone it, a man who causes his fellow to sin, and leads him from the way of life to the way of sin, how much the more (will he suffer). 

(Jacob Neusner, A Life of Yohanan Ben Zakkai Ca. 1-80 CE, 1962, pp 93-94, note 1)

Shabbat 16:7b 

Rabbi Judah said: an incident came before Rabban Yohanan ben Zakkai in ‘Arav [in Galilee] and he said, “I fear that he may be liable for a sin-offering.”   

Tosefta Sanhedrin 10:11

For all the capital crimes that are in the Torah, they do not entrap except for the enticer. How? They send to him two Sages in the inner room, and he sits in the outer room, and they light a candle so that they can see him and hear his voice. And thus they did to Ben Stada in Lod—they appointed against him two Sages and they stoned him.

The Q Source (Luke and Matthew)

These passages are written from the perspective of the targets of criminal prosecution. Law enforcement is identified and its tactics described. The target community is warned that law enforcement will have comprehensive possession of the facts. Defendent mindset during a trial is addressed. There is, finally, the trial outcome.

Matthew 

So if anyone tells you, “There he is out in the wilderness,” do not go out; or, “Here he is, in the inner rooms,” do not believe it.  

Matthew 24:26 

Luke 

Be on your guard against the [yeast of the] Pharisees [which is hypocrisy]. 

There is nothing concealed that will not be disclosed,  
or hidden that will not be made known. 

What you have said in the dark will be heard in the daylight,  
and what you have whispered in the ear in the inner rooms  
will be proclaimed from the roofs.

Luke 12:1-3 

Don’t be afraid of those who can kill the body, but can’t kill the soul.  

Luke 12:6a 

When they bring you before the assemblies, 
do not be anxious how or what you are to say; 
For the Holy Spirit will teach you in that hour  
what you are to say. 

Luke 12:11-12 

The following couplet, like the other passages from Luke, is written from the perspective of the targets, the defendants. The Talmud reflects the interests of law enforcement. The genre of this couplet was identified in 1997 by William E. Arnal as legal language.

I tell you, in that night,  
two men will be in one bed,  
one will be seized, and the other left.  
Two women will be grinding together,  
one will be seized, and the other left.  

Luke 17:34-35 

Luke 17:34-35 is the legal summary of Philip’s ruling. Yohanan b. Zakkai was allowed continued jurisdiction over Jewish sexual transgressors, and those individuals are “seized” for execution. The Pharisees was not, however, granted jurisdiction over the gentile partners. They were “left” or let go.

These three sources intersect to confirm the occurrence of a trial. Each source supplies one unique piece of information.

Josephus identifies the 50-something secular Jewish judge who ruled on the case, Philip the Tetrarch.

The Talmud names the brash 30-something Jewish prosecutor and political strategist, Yohanan b. Zakkai. Also, the Talmud records the prosecution’s specific charges and proposed sentencing.

Luke preserves the decision of Philip the Tetrarch, who ruled on the narrow grounds of jurisdiction, which was likely the object of R. Yohanan’s strategic goals.

Luke 17:34-35, the Gendered Couplet, is arguably vague by itself. But it serves to confirm the charges of sexual transgression contained in Zakkai’s Formularies. The reason for the differing outcomes for the two women and the two men has been a mystery for all of Christian history.

Neither being seized nor being left were a matter of divine knowledge of some person’s spiritual condition. The separation was judiciallly mandated in a human court and based on ethnicity, that is to say, “tribal” jurisdiction.

Philip allowed the Jews to be siezed for execution, but absolved the unjustly accused gentiles, releasing them unharmed. This is exactly how Josephus’ described the decisions of Philip the Tetrarch.

There he ordered the guilty that were convicted to be punished: and absolved those that had been accused unjustly.

So why was no coherent narrative of this actual trial preserved? The explanation is relatively simple. It was not in the interest of any of the sources to preserve the actual story.

One of Josephus’ main goals had been to rehabilitate the Jewish people in the eyes of the Romans. As much as possible he fixed the blame for the Judean rebellion on the so-called Zealots.

He did not want to blame the disastrous Judean turmoil on the surviving Pharisee leadership. Yohanan b. Zakkai’s prosecution of the mixed-ethnicity same-sex couples had been a skillful challenge to Roman hegemony. Rabbi Yohanan had tried to extend Jerusalem’s regional authority over non-Jews.

Reminding a new generation of Romans that the Jerusalem Temple state had mounted this legal challenge in direct competition with Rome — would not have been wise. Josephus’ did not preserve an intelligible account of this trial. Simply the judge’s name and reputation.

Similarly, the Pharisees did not want to enshrine in their own legal code a coherent trial narrative in which Torah enforcement was overruled by Rome.

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To see a list of other posts related to the Evidence, the Bethsaida Trial and the Gay Jew Jesus, click here.

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The Guilty Species

Christendom did not invent irrational guilt. I have my ideas about it’s evolutionary survival value, but our species is “the guilty species.” Every successful ideology has embedded within it some element of guilt.

Any elements of “what we owe to our ancestors”, or “,the debt we owe to our forebearers”, or “what we owe to the biosphere”, or “what we owe to God”, or “the debt we owe to those fought in this struggle in the past” — all these are part of what me also call “guilt”.

Whether we’re talking about “white guilt” or “irrational guilt” or “victim mentality” or “internalized self-hatred” or “survivor guilt” or “original sin” or “self blame” or “blame the victim” — they are all proof that we are…

The Guilty Species.

There are few tools that motivate us primates quite as well as guilt. Parents use it. Leaders use it. Political parties use it. Religions use it. The SPCA and UNICEF use it.

We use it on ourselves.

So stop blaming yourself. It’s in your genes. Everyone else does it, too.

It works on anyone. Anyone except for sociopaths. But they didn’t create the tool. They just use it better.

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ySanhedrin 7.5

The following passage is from the Talmud, and is attributed to Yohanan b. Zakkai (ca. 1-80 C.E., Galilee, Jerusalem, Yavneh).

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And so too, if a woman approaches any beast and lies with it, you shall kill the woman and the beast, they shall be put to death, their blood is upon them (Lev. 20:16). If the woman sinned, what sin did the beast commit? But because there came upon man confusion on its account, Scripture said to kill the beast, that the cow should not go into the market place and people say, “See, there is the cow on whose account so-and-so was put to death.”

Yoḥanan b. Zakkai’s commentary follows here.

And behold, it is a matter of deduction: If in the case of the beast, who has neither merit nor demerit, because on its account man was brought into confusion, Scripture said to stone it, a man who causes his fellow to sin, and leads him from the way of life to the way of sin, how much the more (will he suffer).

ySanhedrin 7.5 (Jacob Neusner, A Life of Yohanan Ben Zakkai, Ca. 1-80 C.E., note 1, 93-94)


If there is a woman who approaches any animal to mate with it, you shall kill the woman and the animal; they shall surely be put to death. Their bloodguiltiness is upon them.

(Leviticus 20:16)

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To see a list of other posts related to the Evidence, the Bethsaida Trial and the Gay Jew Jesus, please come back later. That page is under construction.

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What Are “Zakkai’s Formularies”?

Zakkai’s Formularies are what I call three legal documents in the Talmud that I am convinced were used by Yohanan b. Zakkai to prosecute gay and lesbian couples in first-century Galilee. According to this conjecture, two trials were adjudicated (judged) by Philip the Tetrarch.

Zakkai’s Formularies consist of three passages: 1) Massekhet Semahot 8.7, 2) ySanhedrin 7.5, and 3) Mishna Sanhedrin 1.2.

Formulary documents were often used when Romans and non-Romans faced off in Roman courts. Because the Roman Empire recognized the courts and legal systems of conquered peoples, formulary documents had evolved to regularize and simplify court proceedings. Although formularies were initially developed for use in civil cases, the principles of clarity and ease of use affected criminal procedure as well.

Governing an empire made the incorporation of foreigners a necessity. Non-Romans were called peregrines. The Roman senate created a special office to deal with legal cases involving peregrines, the office of the Peregrine Praetor. Thus began a tradition of how peregrines functioned judicially in a Roman jurisdiction. Throughout the empire, depending on the court chosen by the peregrines, non-Romans interacted legally according to the laws and customs of their country of origin. Thus, in Rome itself, an Egyptian court could be convened wherein Egyptians could, if they chose, engage legally according to Egyptian laws and customs. The choice of courts, even judges, was up to the participants during the era of the Republic.

During the Formulary period, the qualities of multi-lingual and multi-cultural clarity and ease-of-use spread in two ways. First, these pragmatic values spread geographically, out from Rome into the provinces. Second, these qualities spread from civil law into criminal law.

Zakkai’s Formularies translated the anti-gay legal policies of Judea into understandable, Roman language. R. Yohanan had to use Roman-style formularies for two basic reasons.

First, the Jerusalem Temple state was  undoubtedly accustomed to enforcing Jewish law on non-Jews in their own jurisdiction. It was their territory, they followed their own rules, and everybody knew it. There are two scripture passages that justified the application of the law to both nationals and foreigners, Exodus 12:49 and Leviticus 24:22 .

One passage, Exodus 12:49, reads, “The same law shall apply to both the native-born and the stranger who dwells among you.” The Leviticus passage reads, “Ye shall have one manner of law, as well for the stranger, as for one of your own country: for I am the Lord your God.”

But the Romans had no laws absolutely forbidding all same-sex intimacy. All male citizens, even highly placed Roman males, were allowed to have what we would call gay sex, but only in the so-called active position, and never with another Roman.

Because of this difference between Roman legal mores and Jewish, R. Yohanan b. Zakkai had to formulate a legal argument in order to convince the Rome-approved Jewish judge, Philip the Tetrarch, that it was legally valid for Jewish courts–in an official Roman jurisdiction– to order the execution of gentile gays and lesbians caught having sex with Jews. For reasons not discussed in this post, that jurisdiction was the recently elevated Roman polis Bethsaida-Julias, and the nearby town of Chorazin.

The judge rendered what today we might call a narrow decision. It is conceivable that Philip the Tetrarch could have ruled in favor of Torah, that Jewish courts were allowed to prosecute and sentence gay and lesbian gentiles in an officially Roman city. This verdict would have had disastrous repercussions in his Jewish-minority jurisdiction.

Or Philip could have decided enough was enough and ruled that the Jewish courts could not prosecute or sentence any same-sex transgressors at all, whether Jew or gentile. This verdict would have forcibly subordinated Jewish law to Roman law, which would have been anathema to…Rome. The age-old practice of the successful Roman empire was to allow local peoples and tribes to govern and adjudicate themselves according to their own laws and traditions. Subject peoples were not required (generally) to submit to Roman law.

Instead of rendering a blanket decision, instead of caving or subjugating, Philip’s decretum (decision) ruled that R. Yohanan was allowed to continue enforcing Torah against transgressing gay and lesbian Jews. He was not, however, allowed to prosecute or execute non-Jewish gays and lesbians in an official Roman territory.

The judge’s decision didn’t change anything; he only upheld what was the status quo in Roman territory. Jews governed Jews, and every other people group likewise governed itself according to its laws and traditions.

The three portions of Talmud we’re calling Zakkai’s Formularies, which argued for the execution of gay and lesbian gentiles in Roman territory, were recently gathered by Rabbi Professor Jacob Neusner. He put them in a single footnote near the center (page 93) of his 1962 book, A Life of Rabban Yohanan Ben Zakkai, Ca. 1-80 C.E., published by E.J. Brill. Neusner’s book is often available from online booksellers.

Near the center of the footnote he says the meaning of the three passages is “obvious”, but carefully refrains from using words like “homosexual”, “lesbian”, “gay”, etc.

Zakkai’s Formularies state that the destruction of animate and inanimate objects, not normally subject to Torah, are commanded to be destroyed when they are connected with sexual transgression (sexual worship at the high places, and beastiality). Using standard Talmudic reasoning (qal va homer, or lesser-to-greater) these commands are extrapolated to include gay and lesbian gentiles. Their coordinated use by Pharisee prosecutors like R. Yohanan b. Zakkai to justify the execution of gentile sexual transgressors, people who would not normally be subject to the Jewish legal system.

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To see a list of other posts related to the Evidence, the Bethsaida Trial and the Gay Jew Jesus, please come back later. That page is under construction..
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Believing in Hell

Before Xanax and Valium, before 12 years of compulsory desk-sitting, before stun guns, before “delayed gratification” awareness, scaring some primates into behaving with the threat of hell was an effective, if imperfect, herd management tool.

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