To appease an ultra-Orthodox male, flight attendants on Israel’s national airline El Al asked an 81-year-old female passenger to change her seat on a flight from Newark to Tel Aviv. The man cited “the Torah” as his reason for not wanting to make inadvertent physical contact with a woman.
The Israel Religious Action Center, a liberal advocacy group, is now bringing a lawsuit against El Al for sexual discrimination. These seat-shuffles have been going on for years on flights to and from Israel and a lawsuit should come as no surprise. However it gets resolved, the real damage here is to the public perception of halacha, Jewish law.
When Jews disagree about points of ritual law among themselves, no one else really cares and this is even a critical part of Jewish education. But this dispute has a public quality, leaving the impression that a tradition that’s more than five thousand year old is completely out of touch with reality and modernity.
When it comes to matters involving sex and gender, however, the law actually is quite modern in many ways.
Neither the Torah nor Jewish law requires that man should be afraid of sitting next to a woman. The Torah’s concern is limited to certain types of prohibited sexual encounters, and the subsequent rabbinic tradition provides even more guidance.
Several chapters of the book of Leviticus contain a prohibition against having sex with a woman who is menstruating. These verses became the basis for the family purity laws, known as niddah, which mandate that married couples abstain from sex during the time of a women’s menstruation and for seven clean days thereafter.
The Talmud and the rabbinic tradition clarify that the Torah’s concern here is avoiding sex during the prohibited timeframe. Although the Talmud requires a wife to fill her husband’s cup, make his bed and wash his hands and feet, the sages advised various restrictions on whether and how these ordinary tasks should be performed during the off-limits window. Their opinions were designed to discourage physical contact between husbands and wives that might lead to sex during a prohibited timeframe.
Great medieval Jewish legal commentators like Rashi and Maimonides also recognized that the laws of niddah were intended to prevent only sexual relations between spouses. They understood that menstruating women do not communicate impurity to others by touching them. These rules are also codified in the sixteenth-century law code known as the Shulchan Aruch, which still governs Orthodox practice today.
The rabbinic tradition also builds upon other biblical prohibitions, such as incest and adultery, by providing parameters for appropriate physical behavior between unmarried men and women. Those who refrain from touching members of the opposite sex adhere to a practice known as shomer negiah, which literally means guarding physical contact. But there are numerous interpretations of what is actually required and what has become required in insular Orthodox communities.
One controversial area is the permissibility of handshakes between unmarried men and women. Although those who interpret halacha in the most stringent manner avoid handshakes, the reality is that simple touching without sexual intent is not specifically prohibited in the primary rabbinic sources. As the Orthodox authority Rabbi Yehuda Henkin has demonstrated, the context of the rabbinic debate on this matter centers on flirtatious touching that will lead to improper sexual activity.
Most people who have read about the incident on the El Al flight have no idea how pro-female Judaism can be with respect to the issue of female sexuality. They do not know that Jewish law actually requires husbands to have sex with their wives a stipulated number of times a week for the singular purpose of giving pleasure to their wives. They do not understand the significance the Talmudic sages and subsequent authorities have attributed to female sexuality. They do not appreciate how the laws of niddah actually empower women to control the timing of sexual activity with their husbands.
When properly understood, the Jewish tradition’s view of sex is compatible with modernity. The problem here is how these laws are distorted by some groups of ultra-Orthodox Jews. Needlessly rigid cultural practices are masquerading as legal requirements.
In short, there is no religious law that requires the reseating of a female neighbor, and this practice should be illegal under secular law. The El Al passenger’s reliance on the Torah is not only wrong, but also shows an ignorance of the tradition. Both Jews and non-Jews need to understand this.
Roberta Rosenthal Kwall is the Raymond P. Niro Professor at DePaul University College of Law. She is the author of “The Myth of the Cultural Jew: Culture and Law in Jewish Tradition” and is a 2016 fellow of the Public Voices Fellowship of The Oped Project.