Zakkai’s Formularies are three legal documents that were used by Yohanan b. Zakkai to prosecute certain members of gay and lesbian couples in first-century Galilee. One particular trial was in the court of Philip the Tetrarch.
Zakkai’s Formularies consist of three Talmud passages. They are 1) Massekhet Semahot 8.7, 2) ySanhedrin 7.5, and 3) Shabbat 16:7b.
Such 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 transactions.
For the benefit of the judge, these simplified documents included an explanation of the local law and a kind of translation of how the local “indigenous” law translated into Roman legal concepts.
Zakkai’s Formularies translated the anti-gay legal policies of Judea into Roman legal concepts. R. Yohanan had to use Roman-style formularies for two basic reasons.
First, the Jerusalem Temple state was used to enforcing Jewish law on non-Jews. It was their territory and they followed their own rules. There are two scripture passages that justified the application of the law to both nationals and foreigners, Exodus 12:49 and Leviticus 24:22 .
Exodus 12:49 reads, “The same law shall apply to both the native-born and the stranger who dwells among you.”
But the Romans had no laws absolutely forbidding all same-sex intimacy. Even highly placed Roman males were allowed to have what we sometimes call gay sex, but only in the so-called active position.
Because of this difference, Rabbi Yohanan b. Zakkai had to formulate a legal argument in order to convince a Rome-approved judge that it was legally valid for Jewish courts to order the execution of gentile gays and lesbians caught having sex with Jews.
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. Or, he 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. A verdict like this would have forcibly subjugated Jewish law to Roman law.
Instead of caving or subjugating, Philip ruled that R. Yohanan was allowed to continue executing gay and lesbian Jews, but was not allowed to execute non-Jewish gays and lesbians.
The judge’s decision didn’t change anything; he only upheld the status quo. Jews governed Jews, and every other people group likewise governed itself according to its own laws and traditions.
The three portions of Talmud we’re calling Zakkai’s Formularies were 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.
Near the center of the footnote he says the meaning of the passages is “obvious”, and carefully refrains from using words like “homosexual”, “lesbian”, “gay”, etc.
Zakkai’s Formularies argue for the destruction of animate and inanimate objects not normally subject to Torah. Their legally coordinated use allowed prosecutors to justify the execution of gentile sexual transgressors, people who would not normally be subject to the Jewish legal system.