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