Commentary for Avodah Zarah 72:26

This entire section proves the fascinating concept that since most Jews did not observe the oil prohibition, the observance can be nullified by a later court. Telling Jews they cannot use Gentile oil is a decree that people could not live with. Seeing that people were not observing the decree, Rabbi Yehduah Hanasi annulled it altogether.
This is a powerful statement concerning one source of Jewish authority. Jewish authority stems not just from what rabbis tell people to do, or from what the books tell people to do, but also from what practices people accept upon themselves. Put another way, people are obligated to accept certain practices simply because other people are practicing in that way.

This is the tradition we learned yesterday.

The rabbis prohibited having sexual relations with a non-Jew, declaring them to have the status of menstruants, with whom a man cannot have sex, from the time they are born. I should note that this text is addressed only to men. The prohibition of engaging in sex with a Gentile is directed at men—to them women are prohibited. I doubt the Talmud means to imply that Jewish women can have sex with non-Jewish men. It is just that the Talmud was a text composed by men, mostly for men.

This statement treats all of these decrees as ultimately being attempts to prevent Jews from engaging in idolatry. We should emphasize that these prohibitions against assimilation are not racial. It does not seem to be some sort of “racial purity” issue that is being discussed here. Rather, it is an issue of religious belief and practice. Living with other people, eating with them, sleeping with them, marrying them and then raising families together will inevitably lead to cultural assimilation. In this case, it will lead to Jews worshiping idols. It is this the rabbis wanted to stop. Therefore, they were accepting of conversion. The end of the statement refers twice to “another matter.” The Talmud will clarify this more below.

The Torah prohibits intermarriage explicitly—but only with the seven nations that inhabited Canaan when Joshua conquered the land. The rabbis extended this prohibition to cover all non-Jews.

R. Shimon b. Yohai says that the Torah already prohibits a Jew from having relations with any non-Jewish women, for any such woman could end up turning the Jew away from God. So then what did Hillel and Shammai’s students do?

The Torah prohibited marriage with a non-Jewish woman. Marriage leads to the highest level of cultural assimilation, and therefore it was prohibited. The rabbis added that even nonmarital sex is prohibited, also for fear of this leading to idol worship.

In Genesis 38 Judah suspects that Tamar has had sex outside the framework of marriage. The simple reading of this chapter is that Judah is accusing her of quasi-adultery, but the rabbis read it as non-marital sex. The fact that he states that she is to be penalized for this, implies that sex with a non-Jew is prohibited (he assumes that she had sex with a non-Jew because there were not really that many Israelites around then). So how can we say that the students of Shammai and Hillel initiated this prohibition?

The final resolution is that there is an ancient law from Sinai that prohibits an Israelite man from having sex with a non-Jewish woman. We can see this from the story about Zimri in Numbers 25:6-8. But that was only in public, an act of open rebellion. In private this was not prohibited, until the rabbis came along and prohibited it there as well.

Perhaps the Torah prohibited a Jewish woman from having sex with a non-Jewish man, for in a patriarchal society she would be drawn into his family. But Jewish men could have sex with non-Jewish women, for these women would be assimilated into Jewish society. Indeed, most Israelite men in the Bible do indeed marry foreign women. Then the later sages prohibited even Jewish men from having sex with non-Jewish women, because after all, this too can frequently lead to assimilation.

The two rabbis here attribute the prohibition of sex with a non-Jewish woman to the Hasmoneans, who lived about 150 years before Shammai and Hillel. These rabbis use some strong rhetoric with regard to this prohibition, making it akin to several grave sins. The difference between the two is only with regard to the last one. R. Dimi says it is as if she is married. Ravin says it is as if she is a “zonah” which technically is a woman prohibited to a priest.

The Talmud resolves the difficulty by saying that originally only intercourse was prohibited. Shammai and Hillel prohibited being alone with a non-Jewish woman, for they feared that this would lead to intercourse. Note that there are extensive rules preventing for the most part Jewish men and women from being alone in the same room.

But another tradition says that in the time of David they already decreed against seclusion. This occurred in the wake of the David and Bathsheba affair.
The Talmud answers that the prohibition of seclusion with a Jewish woman is indeed from David’s time. However, it was not yet prohibited for a Jewish man to be secluded with a non-Jewish woman. This was prohibited by Shammai and Hillel’s students.

R. Yohanan finds a hint in the Torah itself that seclusion with a prohibited women is forbidden. So how can we say that the Court at the time of David prohibited this? It was already prohibited.

This concludes our history of decrees against sex and seclusion. Might make a good title for a book—The History of Sex and Seclusion, by Joshua Kulp.

The rabbis feared not only intercourse between Jewish men and non-Jewish women, but also between Jewish men and non-Jewish men. They therefore decreed that non-Jewish male children convey ritual impurity. They seem to have thought that this was a way to keep the boys from playing together.

There was some debate among the rabbis whether a non-Jewish child gets this status immediately upon birth, or whether it happens later, when he is 9 years old, the age at which the rabbis believe a boy is physically capable of having sex (i.e. maintaining an erection). The decision was the latter.