Class Notes - Class #17

Mitzvot # 266 – 268 and 272 – 274 regulate special restrictions on who cohanim may marry.  The first several restrictions apply to all cohanim, who may not marry a woman considered a “zonah,” (mitzvah #266), a woman considered a “halalah,” (mitzvah #267), or a “g’rushah,” a woman who has been divorced (mitzvah #268).  There are additional restrictions on marriage or sexual partners of a cohen gadol. The cohen gadol may not marry or have sex with a widow (mitzvah #273 and 274).  Rather, the cohen gadol, if he gets married, is required to marry a “b’tulah,” a virgin (mitzvah #272).  These mitzvot are very closely related to each other, but our author’s detailed discussion of these mitzvot requires careful attention so we will largely cover the discussion in the order the author used.

            Mitzvah #266 prohibits any cohen, an ordinary cohen or a cohen gadol, from marrying a women defined as a “zonah.”  The term zonah sometimes means a prostitute, but that is not the definition under this mitzvah. 

1.       A woman is a zonah if she A) had sex with a man who she could not marry

B) because the relationship was prohibited by a mitzvah that applies to everyone. It does not matter whether the sex was voluntary or rape, whether she was aware of having had sex, or if the penetration was vaginal or rectal.  It does not matter if the source of the prohibition is a positive or negative mitzvah.

2.      A woman becomes a zonah if she has sex with a “cohen halal,” a category we will define when we discuss that next mitzvah.  

            The source verse, Lev. 21:7, says cohanim lo tikachu,” “should not take” a woman who is a zonah or halalah.  (We will define halalah in the next mitzvah.) The language “lo tikach” is understood to mean a prohibition on marrying.  Thus, this mitzvah prohibits a cohen marrying a zonah or halalah.  A cohen who is married to a zonah or halalah generally must divorce his wife.  The author explains that the cohen is punishable by malkos, but only after he has married and had sex with the zonah or halalah.

A woman does not necessarily become a zonah when she has illicit sex.  Our author specifically says a prostitute or a woman with many sexual partners is not necessarily a zonah.  As we mentioned above there are two requirements.  The author lists many cases and explains why the woman is or is not a zonah in each case.

1.  A non-Jewish woman is a zonah because, had a cohen tried to marry her, the marriage would not have taken effect.  A woman who converted to be Jewish is also considered a zonah.  As we saw earlier, the rabbis assume that non-Jews do not have a virtuous sexual history.  The author says a non-Jewish woman is a zonah; it’s not clear whether he means a woman who is not Jewish, or a woman who converted, or both.

2.  A widow who has sex with the cohen gadol is not a zonah because, although the sex was prohibited, the prohibition applies only to the cohen gadol and not to all Jews.

3. A woman who was divorced and then had sex with a cohen is not a zonah.  Although the sexual liaison was prohibited, the prohibition applies only to cohanim and not to all Jews. 

4.  A woman who had sex with an animal is not a zonah even though that sex is a capital offense; the category of zonah applies only in certain cases when a woman has sex with a man.

5. If a woman had sex with a man when she was a niddah, she is not a zonah even though the sexual act is punishable with karet.  If she married her partner the marriage would take effect. 

6.  If a woman has sex with a non-Jewish man she becomes a zonah because she was prohibited from having sex with him under a prohibition that applies generally and because if she tried to marry him the marriage would not take effect.

7.  Similarly, a woman becomes a zonah if she has sex with a man who is a mamzer or with a close relative she is forbidden to have sex with.  The author lists several other sexual liaisons that result in the woman being a zonah based on mitzvot we will encounter later in our study, so we will dispense with definitions here.

There is one other consequence for a woman who is a zonah.  If the woman involved was the daughter of a cohen or otherwise a member of a priestly family, she becomes disqualified from participating in the other benefits of being a member of a cohen’s family.  For example, she is not allowed to eat t’rumah.

The author discusses what happens if there is reason to believe that a woman who is already married to a cohen then becomes a zonah.  Specifically, the wife of a cohen tells her husband she was raped.  The author does not say why she becomes a zonah if she was raped, but Rambam holds a married woman who has sex with a man not her husband is a zonah. The case fits the criteria for making her a zonah, since she is a married woman who had sex with someone she could not marry because the relationship was adultery, a relationship which is prohibited to everyone, not just cohanim.  As we said earlier, it does not matter that the woman did not participate consensually. This is a potentially tragic situation.  If the wife was raped, the couple may be required to divorce although neither did anything wrong and they are both happy in the marriage.  That would be a trauma to the wife in addition to the recent rape.

When the cohen’s wife says she was raped, the issue is whether to believe her.  If her husband believes her on her own word, or if he there is a witness to the rape that corroborates her story and that convinces him the story is true, the cohen should divorce her. 

But if her husband does not want to divorce her, then the court has to decide whether to force him to divorce her.  The first impulse is to take her at her word.  Normally, it takes only one person to establish facts that would be the basis to prohibit behavior.  So the court should believe the wife, who is asserting facts from which we infer that the husband cohen may no longer have sex with her and so should divorce her.  But the Mishnah suggest that that outcome has unintended consequences.  If a woman wants out of her marriage because she wants to marry someone else and she wants to collect her k’tubah, she can do so by claiming she was raped.  Her husband will be forced to divorce her, but since that outcome was not her fault, he will have to pay her k’tubah.  (The k’tubah contains promises a husband makes to his wife at the time of their marriage.  Among other things, the k’tubah provides that the husband will provide a large financial settlement if the marriage ends by his death or in divorce.) Thus, the proposed rule creates a perverse incentive, tempting a woman who wants a divorce to lie so that she gets out of the marriage with a large financial benefit.  To avoid that, the rabbis decide not to believe her even if there is one witness to the rape.  The author does not mention whether the analysis of this problem takes account of what the couple wants the outcome to be.  But it seems that if the husband wants to end the marriage he can do so, and if he does not want to end the marriage he does not have to.

  If there are two witnesses to the rape, though, that is considered convincing evidence.  Presumably the court forces the husband to divorce his wife.

The author considers another factor that might shed light on whether the wife should be believed.  If the wife or the single witness makes their statement while the couple is fighting, that reinforces the choice not to believe the rape story.  Apparently the rabbis assume she or even a witness would say just about anything out of marital anger.  If the couple seems to be getting along well and the wife says she was raped, it takes two witnesses to corroborate the rape such that the court would force the couple to divorce.

The author explains one more variation.  The couple stays married after this incident, and thereafter the husband dies.  Now we have a widow who claimed that, during her previous marriage she was raped in a way that made her a zonah.  The perverse incentive for believing her no longer exists.  Therefore, we assume that she is a zonah and she is thereafter prohibited from marrying another cohen.

The source verse that prohibits a cohen from marrying a zonah also prohibits an ordinary cohen or a cohen gadol from marrying a halalah.  (Mitzvah #267.) A woman can become a halalah in several ways.  1. Imagine a cohen marries and has sex with a zonah, a g’rushah, a convert, or another woman the cohen is prohibited from marrying because he is a cohen.  The woman becomes a halalah.  2. Imagine a cohen has a child from a sexual relationship forbidden by a mitzvah that is specific to cohanim: a cohen with a zonah, a cohen with a divorcee, a cohen with a halalah or a cohen gadol with a widow, etc.  If the child is a son, he is a halal.  In effect the son is a defrocked cohen who has none of the privileges or special duties of a cohen.  If the child is a daughter she is a halalah and mitzvah #267 prohibits cohanim from marrying her.  We saw that a woman becomes a zonah only if she is involved in a sexual relationship that would be prohibited to anyone.  In contrast, for a child to be a halal or halalah, the father cohen must have had sex with a woman he was prohibited to have sex with specifically because he was a cohen.  Thus, for example, the child of a marriage between a cohen and a woman he is prohibited from having sex with only because she is a niddah is not a halal or halalah.  3. A halalah who marries an ordinary Jew has children who are not halalim. Those children are ordinary Jews, and may marry cohanim. But a cohen halal who marries an ordinary Jewish woman, or even the daughter of a cohen, has children who are halalim. That is so even though the marriage is perfectly permitted.  The status here follows the father.  

This is a disturbing rubric for several reasons.  The cohen who was involved in the improper sexual relationship retains his status as a cohen even though he has violated these mitzvot. But the woman he has sex with becomes a halalah.  His son, who has not violated anything, loses the status of cohen.  His daughter loses the benefits of being part of a priestly family and may not marry into a priestly family.

This mitzvah prohibits male cohanim, “b’nai Aharon,” from marrying halalot, but does not create special prohibitions on daughters of cohanim.  Thus, the daughter of a cohen may marry a halal.  If these mitzvot applied to daughters of cohanim, we might have thought she would not be permitted to marry a convert since he would be in a position parallel to a zonah.  But the author says she may marry a convert.  As an aside, the author also says that a male convert may marry a mamzeret.  We will save detailed analysis of that conclusion until we cover mitzvot related to mamzerim.

As we saw with the prior mitzvah, the cohen is prohibited from marrying a halalah but is not punishable until he consummates the marriage.  In discussing this mitzvah the author considers the related topic of exactly when a woman becomes a halalah for having sex with a cohen under circumstances that would make her a halalah.  If the couple has undergone eirusin but not nissuin, the woman has not become a halalah.  If the couple has also undergone nissuin, though, the woman has become a halalah.  Even if they claim they have not consummated the marriage, they are not believed.  The rabbis presume that if the couple is permitted to have sex, they will have sex. 

We saw several mitzvot earliler that the author introduced the concept of safek, doubt, and he taught us the principle that in cases of safek about the applicability of a Torah law we decide strictly but in cases of safek about the applicability of rabbinic law we decide leniently.  In his discussion of a cohen halal, the author gives us practice in applying this principle. 

The author first distinguishes three different categories:

1.        A halal/halalah d’oraita: A woman who is a halalah according to Torah law or a man who is a cohen halal according to Torah law.

2.      A halal/halalah d’rabanan:  A woman who is a halalah according to rabbinic law but not according to Torah law or a man who is a cohen halal according to rabbinic law but not according to Torah law.  The author gives an example.  Take the case of a married woman whose husband dies before they have children.  Her husband’s brother either has to marry her in a ceremony called yibum or sever his obligations to her through a ceremony called halitzah.  We have seen before that d’rabanan, halitzah is parallel to divorce although d’oraita it is not.  Because a cohen is prohibited to marry a g’rushah, a divorcee, a cohen would be forbidden to marry her, but that prohibition is d’rabanan.  If the cohen marries her, she becomes a halalah d’rabanan.  The author implies that this category runs parallel to the d’oraita categories of zonah and halalah.  Think back to our discussion of forbidden sexual relations with close relatives.  We saw many examples of the d’oraita prohibitions extended by the rabbis.  Our author says a woman who has sex that violates one of the rabbinic prohibitions is not a halalah d’rabanan because the rabbinic rule she violated was one of general applicability and not specific to cohanim.

3.      A safek halal/halalah:  We have a set of information about a certain situation, but for some steps in the story there are two possibilities and we aren’t sure which occurred.  One possibility would make the situation permitted and one would make the situation prohibited.  We have a safek, a doubt, about the result.  As applied here, that means someone about whom we are not sure whether he is a halal or she is a halalah.  For example, a woman was married and divorced but there is a question about whether she was ever married in the first place. If she was never married, she is not a divorcee despite her having gone through a divorce ceremony.  That would make her a safek g’rushah.  If a cohen marries and has a child with her, the child is a safek halal or halalah.  In setting up this category, the author appears to be dealing only with a case of a safek d’oraita, not a safek d’rabanan.

Note that in the example above these different categories apply not only to the people involved but also to their children.  So, for example, the child of a cohen and the halalah d’rabanan we met above is a halal or halalah d’rabanan.  If a cohen and a woman who is a safek zonah, safek halalah or safek g’rushah marry and have sex, the woman becomes a safek halalah and the child turns out to be a safek halal or halalah.

                Now we apply the principle of being strict about a safek d’oraita and being lenient about a safek d’rabanan.  Here, though, we need to define what we mean by strict.  A halal d’oraita loses the status of cohen completely. He may not eat t’rumah, do the cohen’s part of the Temple service.  He need not avoid tumat meit and may marry any woman an ordinary Jewish man would be allowed to marry.  But for a safek halal or halalah, we need to be strict about the possibility that the person is a halal/halalah and we need to be strict about the possibility that the person is not a halal/halalah.  Each possibility is a safek d’oraita and we need to be strict about each possibility.  So, being strict with the possibility that the person is a halal or halalah, a safek halal may not voluntarily encounter tumat meit, participate in the Temple service as a cohen or eat t’rumah.  A safek halalah may not marry a cohen.  But we also need to be strict about the possibility that the person is not a halal or halalah.  So the safek halal may only marry women cohanim are permitted to marry.  A safek halalah may not eat t’rumah. Someone who is a halal or halalah d’rabanan has the restrictions that apply to a halal or halalah but also the restrictions that apply to ordinary Jews.  The rabbis created this category and they can define the category any way they want to.  Apparently, according to our author, the rabbis defined the category as parallel to safek halal/halalah.

            The author discusses one more case that adds to our knowledge of how cases of doubt are decided.  Let’s say that a family knows that someone in the family married a halal but no one knows who that halal was. (One of the five great-aunts married a halal, but no one remembers anymore which aunt it was.)  The author says women from that family may not marry cohanim.  Recall that the daughter of a halal is a halalah.  Here, we know there was a halal in the family but we are in doubt about who his descendants are.  Since this is a case of safek d’oraita, we are strict and treat all the women in the family who might be halalot because of him as halalot.  But if the male in the family was a safek halal we get a different result.  Here we have two points of doubt.  The male relative is a safek halal; he might be a halal, or he might not be.  And we are in doubt about exactly which male member of the family was the safek halal, so there is doubt about which of the female relatives might be halalot because of him.  This case of two points of doubt is called “s’fek s’feka,” and in cases of s’fek s’feka we are lenient rather than strict.  Therefore, the women in the family who might have been halalot because of the safek halal may marry cohanim.

These prohibitions apply to cohanim everywhere and at all times.  A cohen is punishable with malkos for marrying and having sex with a zonah or a halalah.  The author does not say whether the marriage is valid, although the fact that the cohen is required to divorce the wife suggests the marriage is valid.  The author does make it clear that both the cohen and the woman he marries are liable to the same punishment for violating these mitzvot.  Further the author says there is only one situation where a man and a woman involved in forbidden sex are subject to different punishments.  Earlier when we studied incest and other forbidden sexual relations, we saw that the author hardly mentioned the liability of the women involved in those relationships.  Here, though, he implies the female partners would be punishable just as the male partners would be.  It remains a mystery why he failed say that in his discussion of those mitzvot.

Mitzvah #268 prohibits an ordinary cohen or a cohen gadol from marrying a g’rushah.  In this mitzvah/essay, our author discusses two topics.  One is how many sets of malkos a cohen gadol can get for one sexual encounter.  The author discusses this again in mitzvah/essay #274, so we will get to that topic shortly.  The other topic is the definition of what makes a woman a divorcee for the purpose of this mitzvah.  A woman whose marriage ends in divorce is a g’rushah if the couple had both parts of the marriage ceremony or even if they only had eirusin but not nisuin.  A woman who has had halitzah is a g’rushah d’rabanan; we saw the logic behind that in our discussion of the prior mitzvah. 

The author mentions another case where it is not clear whether a woman should be considered a g’rushah.  We will see later in our study that a father has the power to marry off his underage daughter.  If the father dies, leaving an underage daughter, her mother or brother has the power to marry her to someone.  When she reaches adulthood, at age 12 ½, she has the option to exit the marriage.  If she does, it is as if the marriage had never happened.  Even if she and the husband her mother or brother chose for her go through a divorce ceremony, she is still not considered a g’rushah.

A cohen who marries a g’rushah should divorce her.  If a cohen married a safek zonah, safek halalah or safek g’rushah, he should divorce her.  In cases of safek d’oraita we take the stricter option, so here he is required to divorce.  A cohen who married a halutzah, a g’rushah d’rabanan, must also divorce her.  But if he married a safek halutzah he is not required to divorce her.  Nor is the cohen required to divorce a woman about whom there are rumors that she had undergone halitzah without any additional proof.  Here, our author says, the rabbinic legislation did not extend to that case.  (A woman would be a safek halutzah if there is doubt about whether she was actually married in the first place.  If she was married and her husband died without children, her brother-in-law would be required to do yibum or halitzah.  If we are in doubt about the validity of the marriage, she and her brother-in-law would have halitzah just in case.  That would leave her a safek halutzah, since, if the marriage was not actually valid, the halitzah was not valid either.)

The shoresh the author mentions for the prohibitions on a cohen from marrying a zonah or halalah is consistent with his earlier discussions of the role of cohanim, who he thinks should be examples to the rest of the Jews or purity and proper action.  Marriage is a matter of primary importance, something people think about carefully and often.  So it is no surprise that the Torah sets limits on who cohanim may marry that are more restrictive than the limits for other Jews.  A zonah is not an appropriate marriage partner for a cohen because she has been involved in prohibited sexual relations.  If a cohen marries a zonah, she may lead him into similar bad behavior.  That marriage may also be harmful to the cohen’s reputation if other people are chattering about the zonah’s illicit sexual relations.  The author says similar logic applies to the prohibition on a cohen marrying a halalah.  That is a harder argument to make.  For a woman who became a halalah because her father was a halal, she may have no sexual experience at all.  She has not done anything wrong, so the only reason to think she might be more likely than others to lead her husband into bad behavior is based on her parents’ behavior rather than hers.

The author says that a woman who marries a cohen halal becomes a zonah even though she is permitted to marry him.  The author says that is because of the damage to her status.  This approach is also consistent with the aspect of these mitzvot that make a woman a zonah or halalah even though the sexual act was not consensual. It is not clear how such a marriage damages her status or why that matters.  But the author’s comment suggests that these mitzvot are rooted in a very different sense of the relationship of women to society than we now take. 

The source verse for mitzvah #273, Lev. 21:14, repeats that a cohen gadol may not marry a zonah, halalah or g’rushah, and adds that the cohen gadol may not marry an “almanah,” a widow.  The woman is a widow even if her husband died after eirusin but before nisuin even if she was still a child when she married and when she was widowed.  If a cohen gadol’s brother died after eirusin, his wife needs yibum or halitzah.  The cohen gadol should proceed with halitzah rather than marrying her through yibum, since she is already considered a widow. A woman whose husband died after they had eirusin, but where there is a safek about whether the eirusin was effective, is considered a safek almanah.  She may not marry a cohen because this is a safek d’oraita and, as our author has been showing us, we are strict in cases of safek d’oraita.

            The subsequent verse, Lev. 21:15, adds that the cohen gadol should not “profane his seed.”  This adds a prohibition, mitzvah #274, that a cohen gadol may not have sex with a widow even outside of marriage.  Much of what the author discusses in these two mitzvah/essays overlap.

            First the author asks why the Torah repeats the prohibitions on marrying a zonah, halalah or g’rushah specifically for a cohen gadol when those prohibitions derived from the prior verses apply to all cohanim including the cohen gadol.  The author cites Gemara Kiddushin for an explanation: the Torah repeats these prohibitions, in this order, to teach us that the cohen gadol is potentially punishable four times for one sex act. 

The explanation focuses on the order in which the prohibitions are mentioned about the cohen gadol: 1. almanah, 2. g’rushah, 3. halalah, 4. zonah.  Let’s say a woman was married and widowed.  Then she remarried and was divorced.  Then she married a cohen and became a halalah.  Last, she married a cohen halal, which made her a zonah.  After all that, she married and had sex with a cohen gadol.  With that history, the author says, the cohen gadol would be subject to four sets of malkos.  If in the last step of that history she married an ordinary cohen, that cohen would be subject to three sets of malkos.  Of course, that punishment only is inflicted if there were witnesses and warnings.  (Obviously this is much more interesting as an analytical problem than as a practical one.)

            It is easy to see why the cohen gadol might be punishable by four sets of malkos, since he violated four separate mitzvot with one sex act. If the cohen gadol had sex with each of four different women, one an almanah, one a g’rushah, one a halalah and one a zonah, he would be subject to four sets of malkos.

But why is the order so important?  That is rooted in a principle the author introduces in mitzvah/essay #268:  ain issur hal al issur,” “one prohibition does not take effect over another.”  In order for someone to be punishable for violating more than one prohibition with one act, one of those mitzvot must add some element not present in the other.  There are other exceptions to this general principle.  The author mentions them at the end of mitzvah/essay #268 but does not explain clearly.

In this case, each step in the woman’s history adds some limitation not present in the prior steps.  When her first husband died, she was a widow.  She could not marry a cohen gadol, but she could still marry an ordinary cohen.  When she divorced her second husband, she could no longer marry a cohen, but she was still qualified to eat t’rumah.  That would happen if she was the daughter of a cohen; after the two marriages she could return to her father’s family and eat t’rumah along with her birth family.  When she became a halalah, she would no longer be allowed to eat t’rumah but she could still marry an ordinary Jewish man.  If she then married an ordinary Jewish man and thereafter has sex with a man other than her husband, that would make her a zonah.  Because of the adultery she is thereafter prohibited from having sex either with her husband or with the adulterer.  That narrows the circle even further.  After all that she marries and has sex with a cohen gadol.  The cohen gadol is punishable with four sets of malkos because he has violated four different mitzvot, each with an additional restriction that the others did not have.

The order of the woman’s sexual history is important because had her history come in some other order, the cohen gadol she eventually married would not be subject to four sets of malkos.  If, for example, her first marriage made her a halalah , the  cohen gadol she eventually married would be subject to at most two sets of malkos, one for halalah and one for zonah.  He would not be subject to separate punishment for almanah or g’rushah, though, since both those prohibitions are narrower than the prohibition on the cohen gadol for marrying a halalah.  The prohibition on a cohen marrying a g’rushah has the same effect on the person who violates it as the prohibition on a cohen marrying a halalah.  The prohibition on the cohen gadol marrying an almanah is even narrower than the prohibition on an ordinary cohen marrying a g’rushah since it applies only to the cohen gadol and not to other cohanim.  Thus, when the cohen gadol marries a woman who became a halalah before she became a g’rushah, almanah or zonah (assuming she became a zonah because of adultery), the cohen gadol is potentially liable to only two sets of malkos.  He is punishable for marrying a halalah.  He is also punishable for marrying a zonah, since if she became a zonah because of adultery that leaves her more restricted than when she was only a halalah.  He is not punishable for marrying a g’rushah or almanah because those do not create further restrictions on a woman already a halalah.

The author raises another possible objection to the cohen gadol getting four sets of malkos and that is based on a principle we are already familiar with: one is not punishable for violating a lav sheb’kalut, an negative mitzvah that covers a wide array of situations.  Since all four prohibitions on the cohen gadol are in one verse, they would seem to comprise one mitzvah with various aspects.  But that analysis is not correct.  Rather, the three prohibitions that apply to all cohanim are three separate mitzvot, and only one prohibition is added specifically about the cohen gadol.  As we said earlier, the three prohibitions that are repeated in the verse about the cohen gadol are there to teach the analysis about multiple punishments, not to teach a mitzvah distinct from the three that apply to all cohanim.

The cohen gadol is also punishable twice for one sex act if he marries a widow and has sex with her: one set for mitzvah #273 that prohibits him from marrying a widow, and one set for mitzvah #274 that prohibits him from having sex with a widow even outside of marriage. 

The implication of having a separate prohibition on the cohen gadol having sex with a widow outside of marriage might be that the other prohibitions we have seen are only on sex in marriage and not on extra-marital sex.  But our author says in mitzvah #274 that that conclusion is incorrect.  Rather, every cohen who has sex with a zonah, g’rushah and halalah is violating a prohibition even if the cohen is not married to the woman.  But the cohen is only punishable is he married her and then had sex with her. The same is true of the cohen gadol.  But because of this separate mitzvah, a cohen gadol who has sex with a widow without marrying her is punishable.  The language “he shall not profane” applies only to the cohen gadol and provides another route to show he is punishable for having sex with a widow outside of marriage.  That sex act leaves the woman a halalah, and any children from that sexual union would be halalim.  In that sense, the cohen gadol has profaned the woman and his children by her.

At the end of mitzvah #273 and again at the end of mitzvah #274, the author says that a cohen gadol who has sex with a widow profanes her, reducing her status to someone who may not marry an ordinary cohen.  The author says this makes her a zonah.  It seems to me that case would result in the woman being a halalah rather than a zonah since the prohibition involved is limited to the cohen gadol and not a prohibition applicable to everyone.  The author’s position is puzzling.

Finally, in mitzvah #272 we learn that if a cohen gadol marries, he must marry a virgin.  In particular, he must marry a girl aged 12 to 12 ½.  That may seem extraordinarily young to us, but the halachah assumes that is prime marriage age for a woman.

The source verse, Lev. 21:13, says the cohen gadol should take a wife who is a virgin.  The mitzvot we saw so far leave some women who are sexually experienced the cohen gadol might marry, for example a woman who had sex with someone when she was a niddah.  This mitzvah narrows the set of potential brides to women with no sexual experience.  This mitzvah seems to be an example of a “lav sheba’ah b’clal aseh,” a prohibition implied in a positive mitzvah.  Here, the implication of a positive mitzvah that the cohen gadol marry a virgin is that the cohen gadol is prohibited from marrying a woman who is not a virgin.  The author cites the Talmud for a discussion that mentions in passing that this is a positive mitzvah which implies a prohibition.  The Talmud posits an opinion in Rabbi Akiva’s name that it is possible to have a child who is a mamzer if the child’s parents violated a positive mitzvah as well as a negative mitzvah.  By way of example, the Talmud mentions a cohen gadol who marries a non-virgin.

The shoresh for the three mitzvot about the cohen gadol (#272, 273 and 274) is the same concept: the wife of the cohen should be sexually innocent.  The author reminds us of his premise that our character traits are influenced by our actions.  Therefore, the wife of a cohen gadol ought not to be comparing the cohen gadol with other sexual partners lest she have insufficient respect for her husband the cohen gadol.  Of course it is possible for a woman who is not sexually experienced to have fantasies about men other than her husband.  That is why the cohen gadol must marry a young bride who is less likely to be involved with sexual thoughts.  As long as she has not acted on her sexual fantasies, though, she may marry the cohen gadol.

If a cohen gadol does marry a woman who is not a virgin in the target age, he must divorce her.  She is not considered a virgin if she has had rectal sex although she has not had vaginal sex.  If a woman who has not had sex has had her vagina penetrated with an object, she is not considered a virgin.  The author explains that her emotional reactions to sexual matters would be negatively colored by that experience.  But if a cohen gadol did marry a woman in one of these two situations he is not required to divorce her.

Although we tend to think that there is one and only one cohen gadol, that is probably too simple.  The author mentions several different cohanim to whom this mitzvah applies.  It applies to a cohen gadol during the period of the First Temple, who was installed by way of anointing with oil as we saw in mitzvah #107, as well as to a cohen gadol during the period of the Second Temple who was installed by wearing the special garments that were worn only by the cohen gadol.  It applies to a cohen gadol responsible for the Temple service and a cohen gadol not currently responsible for the Temple service. So, for example, it applies to a cohen gadol who has retired from active practice as cohen gadol. It also applies to the cohen specially anointed in time of war, and we will learn more about that cohen later in our study.

Reading the source verse carefully, the rabbis rule that a cohen gadol may not have more than one wife.  The source verse says the cohen gadol should marry “ishah” singular for woman, not “nashim,” plural for women.  Further the author says that if a cohen was already married to a widow and was then appointed cohen gadol, he ought not divorce her even if they had had eirusin but not nisuin before he became cohen gadol. 

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