Shomer F*cking Negiah

Gene Callahan finds this Jonathan Rosenblum column in the Jerusalem Post to be "a great demolition of one of Randy Cohen's shallow and utterly conventional bits of 'ethical' analysis." While I don't disagree with Gene's "general impression...that Cohen equates ethics with 'what will make you liked at a Manhattan cocktail party'", in this particular case, Randy Cohen is correct that the Orthodox Jewish prohibition of Negiah is sexist.

Full disclosure: I was raised as an Orthodox Jew from birth, and adhered to this particular prohibition against physical contact between genders (with some notable exceptions) until adulthood, when I became a raving atheist with an axe to grind.

Interestingly, the Wikipedia entry on Negiah references a listserve post written by my parents' former Rabbi, Michael Broyde, discussing this very same Randy Cohen controversy. (I say former because he has since stepped down from his clergy position to focus on his academic position as law professor at Emory, though he is still considered an ordained Orthodox Rabbi.) Broyde agrees that "in the case discussed by Cohen, the values of gender equality and of religious freedom are in conflict." Broyde asks us to consider the following hypothetical:

Imagine a person who came to your house to paint your house, and at the end of the deal [he agreed to paint your house for $2,000, and you agreed to pay him] he turned to you and said "Thank you for the work, and when it is over, I will give you a bill". You stuck out your hand to shake (finalizing the deal, according to social convention), and he looked at you and said, "I am sorry, but I am Christian, and I do not shake the hands of Jews."

Would you continue to hire this person as a painter? I think the answer is "no" -- I certainly would not. While a person has religious freedom to do anything they want privately, others have the right to be insulted, and refuse to do business with you. Now I know that you will scream out that my case is different, but deep down inside, I at least do not see how it is different TO A PERSON WHO IS DEEPLY MORALLY COMITTED TO GENDER EQUALITY.

Cohen's analogy to "separate but equal" racial segregation apologetics is spot on, as should be obvious from this paragraph by Rosenblum:

By contrast, the agent made no statement, either implicit or explicit, showing any disrespect for the letter writer in particular or women in general. Strictly observant Jewish women also do not touch men so the prohibition clearly does not confer "untouchable" status on one sex or another. Rather it proscribes physical contact between sexes equally.

This is separate but equal logic. It's like the claim that "it's not racist to say that whites shouldn't date blacks, so long as the prohibition is reciprocally enforced, and the speaker also agrees that blacks shouldn't date whites."

Orthodox Judaism (and, I suspect, many other fundamentalist religions) has a built in ratchet effect of progressively increasing social conservativism, with each additional stringency acting as a barrier against the potential violation of a previous stringency.

An example of this tendency from Rosenblum's article:

True, shaking hands is a pretty innocuous form of contact, and for that reason some Orthodox religious authorities permit shaking hands in the business context. But the same claim of innocuousness is made for kissing and hugging in many circles. Rather than stepping on to a slippery slope and leaving the matter to subjective determinations about the erotic content of any particular act, many Orthodox Jews choose to simply avoid any physical contact.

So while some modern Orthodox Jews follow a sort of NAP principle with regard to shaking opposite-gender hands - don't initiate the hand shake, but do reciprocate if a hand shake is offered so as not the embarrass the other person - some of the more stringent Orthodox Jews "take extreme measures to avoid even accidental contact, such as refusal to sit next to a member of the opposite sex on a bus, airplane, or other similar seating situation."

What does this amount to in practice? In Israel, gender-segregated busing, where (of course) women are expected to sit in the back of the bus, men in the front.

As the Wikipedia entry explains, the original prohibition is derived from two verses in Leviticus:

"Any man shall not approach his close relative to uncover nakedness; I am God" (18:6), and: "You shall not approach a woman in her time of unclean separation, to uncover her nakedness" (18:19).

Notice that both of these phrasings are gendered, though they are interpreted rabbinically to apply to both men and women. Of course, God found it necessary to write "His" scriptures as if the reader "He" is addressing is necessarily male. And God similarly shares with "His" male audience a strange (for a deity) disgust of female menstruation, and the spiritual uncleanliness it entails.

To see that Rosenblum is engaging in post-hoc apologetics, in a failed attempt to make fundamentalist Orthodox Judaism seem more palatable to modern sensibilities, consider this abortion of logic:

A ban on touching acknowledges the natural physical attraction between men and women and serves as a warning. Those who observe the ban convey the message that "the erotic element is excluded from our relationship." Far from showing a lack of "dignity and respect" for those of the opposite gender, observance of the ban reflects a determination to treat members of the opposite sex with the utmost respect – i.e., as everything but objects of sexual desire.

Orthodox Judaism, of course, does not look too kindly on homosexuality, yet men are allowed to touch each other in non-sexual ways, presumably because Orthodox Judaism denies any "natural" physical attraction between men, and thus no message need be sent between two men that "the erotic element is excluded from our relationship." Yet the very act (through a non-act) of sending a message, the need that a message be sent, is a glaring reminder to both parties that the erotic element is very much present, and must be actively ignored, lest wanton acts of seed spilling and other forms of licentiousness ensue.

All of this conveniently ignores the fact that a handshake is not considered in any way erotic in modern society. A handshake between two men in a business deal is considered a form of respect, and since homosexuality is presumed to be unnatural, the issue doesn't even arise that men need to treat other men "as everything but objects of sexual desire."

Randy Cohen is indeed a terrible ethicist, as Jacob Levy demonstrated a decade ago, but in this particular case Cohen is on the side of the (imaginary) angels.

In (mostly) unrelated news, Triumph, the Insult Comic Dog recently appeared at the Chabad Telethon:

Notice the gender-segregated seating in the audience, and the lack of women on stage - ostensibly for reasons of "modesty".

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Orthodox is not Fundamentalist

Do note the actual commandments. They are about getting women naked, presumably for sexual intercourse. There is no Torah prohibition on casual contact. This is a human addition. So don't blame either Moses or the Creator for the excessively restrictive Orthodox Jewish practice. A truly fundamentalist Jew would follow what is actually in the Torah.

BTW, such overkill practices go back at least two thousand years. Jesus attacked them repeatedly (Orthodox Jew ~= Pharisee). Most Christians assume that Jesus was attacking the Law of Moses. He was not. He was attacking the additions to the Law.

You appear to be defining

You appear to be defining fundamentalism as necessarily adhering to a form of textual literalism. That does not seem to be the generally accepted usage of the term. Fundamentalism seems to be more of a cluster concept; fundamentalists of many different religions tend to subscribe to some form of textual infallibilism, a negative reaction to modernity, and a need to return to strict adherence to principles. Most branches of Orthodox Judaism would fall under this category, although some of the more liberal branches of Modern Orthodoxy would not.

Under your definition of fundamentalism, it would appear that a truly fundamentalist Christian would not be opposed to abortion on religious grounds, as there is no mention of abortion in either the Old or the New Testaments. Yet most if not all of those we would identify as fundamentalist Christians hold pro-life views, and believe those views are mandated by God.

There are indeed branches of Judaism, predating Christianity and Islam, that rejected the authority of the Oral Torah and subscribed to a more textual literalist approach. The Sadducees were one such group, though they died out shortly after Christianity began. The Karaites still exist, though they remain a tiny minority.

One can look at Christianity as a sort of reboot of Judaism, wiping away the unnecessary additions to the law, though Christianity of course made its own additions, and the history of Catholicism seems to be just as vulnerable to legalism as the Pharisees they sought to replace.

Most Christians assume that Jesus was attacking the Law of Moses. He was not. He was attacking the additions to the Law.

But not only the additions. Which branches of Christianity observe the Old Testament laws of the Sabbath, or the Old Testament dietary laws? Or the Old Testament laws of animal sacrifice? In what sense was Jesus merely continuing in the tradition of the Law of Moses if he claimed that these laws were no longer necessary? See: Supersessionism, Antinomianism, and Expounding of the Law.

Point taken

OK, perhaps I am misusing the term fundamentalist. I was thinking "back to the fundamentals" and rejecting newfangled additions to religion. So there is some relation to the concept, but I do stand corrected.

The very early church did keep the Sabbath and there was quite a bit of discussion about other aspects of the Law. It was conceded early that a newly converted gentile could not be expected to have the same good habits as one born into the Judaic faith. The full deprecating of the Law in favor of church rulings came later, from a combination of Christians distancing themselves from Judaism and the church hierarchy merging with the old Roman priesthood.

Several smaller Christian denominations do keep the Sabbath and adhere to many of the Mosaic laws. Some even keep the seven high holy days. There is much debate within these communities as to which passages in the Torah were general commandments and which were judgments particular to the time. For example, the bit about having a blue thread in the fringe of your garment, is this really relevant now that clothing styles are radically different?

As for the animal sacrifices, the book of Hebrews lays this out in great detail. The underlying laws -- that there must be a priesthood and sacrifices -- existed before the Levites and still exists. What has changed is who fulfills these laws. Jesus has taken over the role of chief priest and his own sacrifice takes the place of the animals. Furthermore, the destruction of the Temple means there can be no more animal sacrifices, so even Jews who disbelieve in Jesus have also discontinued the animal sacrifices. (Should they get hold of the appointed place, they will resume these sacrifices, however.)

I was thinking "back to the

I was thinking "back to the fundamentals" and rejecting newfangled additions to religion.

For what it's worth, Orthodox Judaism views itself as keeping true to the fundamentals and rejecting newfangled additions to religion. The view of Orthodox Judaism is that the Oral Torah was handed down to Moses along with the Written Torah, and both were transmitted accurately from generation to generation, until the Oral Torah was eventually written down for practical reasons. What you and I might consider additions, Orthodox Jews would consider applications of existing principle to changing social conditions (the invention of electricity, the destruction of the Temple, the diaspora, etc.), and/or "creating a fence surrounding [and protecting] the words of the Torah".

There is much debate within these communities as to which passages in the Torah were general commandments and which were judgments particular to the time. For example, the bit about having a blue thread in the fringe of your garment, is this really relevant now that clothing styles are radically different?

Incidentally, I still own a pair of Tzitzit with blue Tekhelet thread. It's somewhere in the bottom of my closet. What's interesting about this particular issue is that it's a controversial form of lost knowledge. The controversy arises over whether we have accurately rediscovered the correct species of mollusk from which to make the blue dye:

At some point following the Roman exile of the Jews from the land of Israel, the source of the dye was lost and as a result the Jews have worn only plain white tassles. [...]

Over the last two centuries, attempts have been made to identify the ancient source of the dye by comparing Talmudic sources to physical evidence. Three types of mollusks have been proposed as the lost "chillazon". None have been universally accepted, though the Murex, Murex trunculus, known by the modern name Hexaplex trunculus is thought to be the most likely source of the biblical blue dye. Most Jews continue to wear only white tzitziot, following their poskim (decisors of Jewish law).

So it's not a question (for Orthodox Jews, at least) of changing clothing styles. But the general problem of uncertainty between general commandments and judgments particular to the time is a valid one for (mostly Modern) Orthodox. The way this works though, is still consistent application of both Written and Oral Law, but the ambiguity arises when the general commandment lacks specificity, and the specificity is filled in by era-specific custom.

In U.S. law, one example of this is the interpretation of what is meant by "cruel and unusual" punishment. Cruel and unusual according to the mores at the time the Constitution was drafted, or cruel and unusual by today's standards?

In Orthodox Jewish law, examples include the rules of modesty for married women, particularly covering their hair. These rules are based on what secular society as a whole considered modest at one point in time, but may no longer be the case today. Or the prohibition to engage in luxurious activities on certain holidays included bathing, since the era in which this rule was applied considered bathing a luxury, though now it is a regular necessity.

The stringency ratchet effect exists because of a conservative legal philosophy of stare decisis and the gradual disappearance of a centralized authority; in U.S. law (iirc), no court has jurisdiction to overturn the decision of an equal or higher court, except the Supreme Court, which is hesitant but sometimes willing to overturn its own decisions. With the loss of the Sanhedrin, Judaism is left with essentially no Supreme Court, so fences tend to get added, but there is not really anyone with the authority to remove those fences when they become out of date.

As for the animal sacrifices, the book of Hebrews lays this out in great detail. The underlying laws -- that there must be a priesthood and sacrifices -- existed before the Levites and still exists. What has changed is who fulfills these laws. Jesus has taken over the role of chief priest and his own sacrifice takes the place of the animals. Furthermore, the destruction of the Temple means there can be no more animal sacrifices, so even Jews who disbelieve in Jesus have also discontinued the animal sacrifices. (Should they get hold of the appointed place, they will resume these sacrifices, however.)

I agree with all of this except the final sentence. There is much controversy among Orthodox Jews over whether mere possession of the Temple Mount would warrant rebuilding of the Temple and thus animal sacrifices, or whether they are required to wait until the coming of the Messiah for this to happen. I think the majority view is the latter.

I drank the relativist kool aid, so what's conservative anyway?

Some years ago at an IHS conference I met a young woman named Sarah Swick. She's an American, who moved to France...and became a Muslim. For her, the kind of segregation you speak of really did have something to do with self respect and behavioral and moral austerity on self aware, proudly female terms. So when you say,

This is separate but equal logic. It's like the claim that "it's not racist to say that whites shouldn't date blacks, so long as the prohibition is reciprocally enforced, and the speaker also agrees that blacks shouldn't date whites."

...I'm not sure that "separate but equal logic" doesn't entail some kind of non-conservative implications too. (Replace the controversial juggernaut of black/white with men/women for simplicity.) But then I suppose that all this talk of "conservative" or not is just historically contingent, and so for me just a matter of preference and culturally derived "impressions." I personally enjoy what most of us reading this will understand to be a "modern woman," described here. As a kind of egoist utilitarian, though, I acknowledge that a world of only Orthodox Jews would be less productive than could otherwise be the case, because I imagine their conservative ways would impede a succesful division of labor (which I like), but since that won't happen anytime soon I'm not worried. As it stands the existence of oddball conservative (or is that postmodern feminist?) women, and men, provide me a measure of curiosity satiation.

(One could concoct a method of devising "conservative" or "liberal" based on their relation to a superior division of labor, perhaps, but as of now I'm using these terms as they exist in the broader world of political philosophy, wherein, strictly speaking, the hand shake scenario could be defended by both liberals and conservatives.)

Although I'm not a huge fan

Although I'm not a huge fan of "false consciousness" explanations in general, I think it holds true when describing Muslim and Jewish (and Christian) women who buy in to their religious cultural strictures of modesty. I don't doubt that many Muslim and Jewish women truly feel a sense of self respect and moral austerity; after all, that is what they have been raised to believe. But if we look at the original motivations behind the implementation of these strictures by the textual or clerical authorities, and even as they are practiced in the here and now, we find great inequalities between the expectation of female modesty and male modesty. Men are not expected to cover themselves in a burka, or hijab, or veil, or tichel, or wig, to anywhere near the same degree women are, and so on from head to toe. Women's sexuality is viewed as irresistible to the male gaze, but the same is not true in reverse. Women are expected to cover up for the ultimate purpose of keeping men from sinning lustfully; men are not expected to keep their emotions and erections under control all by themselves.

The case for cultural pluralism doesn't rest on division of labor, for we would all be more productive if we were secular humanists. We wouldn't be wasting so much time worrying about whether we covered enough skin to satisfy God. And I'm not sure you truly want to embrace the principle of other people suffering (or even doing worse off than they could) merely for your amusement and curiosity.

Rather, the case for cultural pluralism rests on pragmatic grounds, on the unhappy realization that not everyone can be rationally persuaded of the truth even when it benefits them, and that the costs of physical interference into unjust but not externally aggressive cultures are too high in terms of the necessary centralization of power, among other things, to justify the benefits. See: Chandran Kukathas' "Two Constructions of Libertarianism."

Well you'll notice that the

Well you'll notice that the example I gave was of someone who was not raised to be Muslim, nor did she convert from one conservative religion to another (probably less likely than moving from atheist/agnostic to [fill in the blank]). So if she can do it, how do I know that some woman raised that way wouldn't have converted anyway? And I'd be careful with the charge of "false consciousness" - as TGGP has pointed out, the more radical libertarians are kooks, and many if not most of them have been raised by parents (dominated by dad's point of view?) of a similar persuasion; and no, I won't split hairs here by denying Republicans, libertarian hawks or paleo-libertarians any kind of antecedent association. How can we be certain Patri Friedman's views aren't the falsely conscious result of both his father's and grandfather's point of view?

For me, I think cultural pluralism does have something to do with the division of labor and a generally enriched environment for a society of differing preferences. I might be playing fast and loose with the word "pluralist" here, as I'd say differences in taste in music and food are part of that. But I'm with you on the pragmatism of tolerating diversity. I'm a big fan of Kukathas.

Men are not expected to cover themselves in a burka, or hijab, or veil, or tichel, or wig, to anywhere near the same degree women are, and so on from head to toe.

This is true, but it's probably irrelevant from the perspective of a woman who clings to a completely different narrative regarding her life as a devout Muslim. There is a book called Politics of Piety by Saba Mahmood of UC Berkeley. It's in part a challenge to secular feminists who interpret everything through the lens of "western" feminism. (Of course then it's fair to ask: What the hell is feminism anyway? A theory defending the right for a woman to do exactly whatever it is she was already doing? Apparently. More or less my position too.)

I can imagine being grilled by a socialist for not sufficiently being concerned with my own lack of wealth and feelings of envy. What do I do to convince them that I haven't been brainwashed?

True, converts always puzzle

True, converts always puzzle me. My brother-in-law is a law professor with a JD from Harvard, grew up in a secular (albeit already Jewish) family, came to Orthodox Judaism, and proceeded to marry my sister. He is pretty fucking smart too, so I sat down with him once and asked him why he did it. He said that he had gone to a Discovery Seminar run by a Jewish outreach organization, Aish HaTorah, and was unable to rebut their apologetics (which included the notoriously silly "Bible Codes"), even with the help of another secular friend. I found this pretty surprising, to say the least, as Jewish apologetics are pretty flimsy compared to Christian apologetics, which themselves are pretty flimsy to anyone with the critical reasoning skills required to do well enough on the LSATs to get into Harvard Law and is not already a believer.

I pushed him on this point a bit and he eventually admitted that he saw some holes in the logic, but that he was willing to purchase the package deal of belief for the reward of a close-knit community, something I guess he felt he lacked growing up.

I can't really blame him, either, as I didn't arrive at atheism through purely rational inquiry either; I don't think I would have been as willing to question the belief system I was raised into had I not found lots of faults with the community itself. So I remain skeptical of the value of pure reason for any significant changes in belief systems, without the added effects of personality, culture, upbringing, etc.

So I willingly grant that the "community" argument is persuasive to many who choose to adopt fundamentalist religious beliefs. Accordingly, I don't claim that no one who was raised into one of these communities would have converted anyway had they not been raised that way. Certainly some people would. But I don't think most people would; after all, people do have a not-so-surprising tendency to follow the religion (or non-religion) of their parents.

Interestingly, in Orthodox Judaism at least, there is a greater "leakage" rate for men than for women. I don't know what the causes or implications of this are, apart from a gender imbalance in the dating market (there are far more single women than single men looking to get married compared to the secular population).

Aren't the statistics of political affiliation also highly correlated with one's parents' political affiliation? If so, doesn't this support the false consciousness view, just as it does in religion? Assuming not all political ideologies or religious ideologies are correct (because of incompatibility with each other), a lot of people are mistaken, and they are mistaken primarily due to their upbringing (including both environmental and genetic factors). I don't think it's a huge coincidence that Milton begat David and David begat Patri. I will be greatly surprised if Tovar grows up to be a raving Keynesian statist :P

I might be playing fast and loose with the word "pluralist" here, as I'd say differences in taste in music and food are part of that.

Well, sure. I see value in having lots of different cultures, if by cultures we mean cool stuff like music and food. I'm not so sure I see value in having lots of different kinds of religious people, except to the extent that their diversity belies their truth claims. (Or at least all but one of their truth claims.)

I can imagine being grilled by a socialist for not sufficiently being concerned with my own lack of wealth and feelings of envy. What do I do to convince them that I haven't been brainwashed?

I dunno, but it sure seems better than the usual accusation that we are just shilling for the rich because of our juicy trust funds. :P

I'd rather be accused of being stupid than evil. It's much easier to demonstrate one's intelligence in an argument than one's virtue.

Is the division of sports

Is the division of sports (say, with the case of Caster Semenya) by gender sexist? Or to borrow an example of Jim Crow, gender segregated bathrooms?

The clash between feminism and religion reminds me of the odd bit that women are more religious than men. Men created the religions, but they end up appealing more to women (it just occurred to me that the fashion industry is somewhat similar). Its possible that women just like certain bits that have been bundled with sexism though.

The family that raises you tends to determine your religious affiliation. Religiosity seems to be substantially heritable (political ideology is too). I guess its similar to how we have a language instinct that can permit one to be a good speaker, but language is determined by culture. It seems to me pointless to try to distinguish between the influences that tainted you and what your GENUINE attitudes would be in some ideal state of nature. Remove everything tainted by outside influence and there's not much left other than what you'd find in a feral child. Hayek made a similar point to Galbraith regarding advertising.

Separate

"This is separate but equal logic."

Suuuure it is, Micha. Just like a woman should be offended when I refuse to put my penis in her vagina because I'm "married." Whatever was I thinking?!

Oh, and TGGP, no one "created" religions, just like no one "created" languages.

"I can't really blame him,

"I can't really blame him, either, as I didn't arrive at atheism through purely rational inquiry either..."

True dat! Atheism is arrived at by what Voegelin called "logophobia": The irrational fear of philosophical thinking, as it does tend to result in a recognition of the logos. (Think of poor Socrates!)