Loving Marriage: The Troubles with Adultery
“But we still love marriage,” Melissa Murray, a professor of law at the University of California, Berkeley, asserts after elaborating on the adultery laws in the United States last month.
In twenty-four U.S.-states and territories, adultery is still defined as a criminal act. According to Murray’s explanations, “nobody is going to be going to jail for it” but “it is used in divorce and custody cases and even in some employment cases.”
Importantly, in 2003, the Supreme Court decided in the case on Lawrence v. Texas that sexual activity of consenting adults in private is legal across the country although it remains unclear how the Supreme Court’s ruling affects the statutes on adultery. After all, they remain constitutional in most cases, and some courts have referred to the constitutionality of the adultery laws even after 2003.
This legal situation is quoted internationally as an embarrassment to the United States. However, some Americans support the adultery laws because they regard them as a protection of the “marriage contract” of married couples, gay or straight. Others want to see these laws gone because they are archaic and cluttering the legal code.
But what captured my attention in the New York Times piece of November 14, 2012 was the reference to the Hebrew Bible/Old Testament. The article states:
“Like other state laws related to sex—sodomy, fornication, rape—adultery laws extend back to the Old Testament, onetime capital offenses stemming at least partly from a concern about male property.”
It links the reference to an online King James Bible version. A click opens up to Deuteronomy 22:22:
“If a man be found lying with a woman married to an husband, then they shall both of them die, both the man that lay with the woman, and the woman: so shalt thou put away evil from Israel.”
Okay, so isn’t the indirect claim in the New York Times piece that our legal troubles on adultery go back to the Bible, more specifically to its laws? What a problematic idea! Rather than, for instance, discussing the complicated situation in narratives, such as Tamar and Judah in Genesis 38, Ethan Bronner, the author of that piece, makes a linear connection between a particular biblical law and our current legal situation related to adultery.
But there is no such unencumbered connection! And different parts of the Bible address so-called adultery differently. Even more importantly, our law codes do not prescribe the death penalty for the crime of adultery, as this biblical verse suggests. Where is the link?! Of course, it’s in the mind of the interpreter, as it should be, has been, and always will be.
In addition, when we think a little bit more about this verse, it becomes obvious that Deuteronomy 22:22 does not clearly address a situation of adultery since the woman’s consent is not explicitly stated. Another conjecture of many readers familiar with androcentric readings of biblical law. This law also does not specify the kind of death required as a punishment for “adultery” nor does it indicate who the executioner should be. Everything is vague and ambiguous, flexible, and elastic in this verse, as it usually is in the Bible.
And on top of that let’s be clear that the noun “adultery” does not appear in this verse. Hence is the assertion that Deuteronomy 22:22 is about adultery not an anachronistic projection?
But perhaps the most important point has to do with the historical uncertainty that Deuteronomy 22:22 and similar laws were ever part of practiced law in ancient Israel, despite the fact that similar laws are also part of other ancient Near Eastern legislation.
For instance, the Code of Hammurabi includes a case that sounds just like Deuteronomy 22:22. However, the law in the Code of Hammurabi is also different, as it offers several penalty options, such as drowning and leniency, and not only death, as the biblical law. Here is the text of §129 of the Code of Hammurabi:
“If the wife of a seignior has been caught while lying with another man, they shall bind them and throw them into the water. If the husband of the woman wishes to spare his wife, then the king in turn may spare his subject.”
Interestingly, this law allows the husband to spare his wife which, in turn, will also affect the fate of the other man. In comparison, Deuteronomy 22:22 is more limited and orders much harsher punishment. It should also be noted that both laws focus only on the post-discovery phase; none of them concern themselves with the consent of the woman, or the man, for that matter.
Yet above all, the crucial question is whether biblical law was ever practiced law.
In fact, this is a big historical question mark. Henry McKeating answers it best in an essay entitled “Sanctions against Adultery in Ancient Israelite Society, with Some Reflections on methodology in the Study of Old Testament Ethics,” published in the Journal for the Study of the Old Testament in 1979. He writes there:
“What I am suggesting, to put it in another way, is that the ethics of the Old Testament and the ethics of ancient Israelite society do not necessarily coincide, and the latter may not be represented altogether accurately by the former. Old Testament ethics is a theological construction, a set of rules, ideals and principles theologically motivated throughout and in large part religiously sanctioned. Were the principles by which real Israelites actually lived quite so closely determined by religious faith? It may be that they were, but we cannot without further ado assume so.” [p. 70]
So it’s merely a popular literalist move to assert that Deuteronomy 22:22 was practiced law in ancient Israel, but such a claim is not grounded in careful historiography. As many Hebrew Bible scholars of non-fundamentalist persuasions acknowledge widely today: the Old Testament contains little historically reliable information about ancient Israelite society prior to the sixth century BCE, and many historians do not even want to go that early.
We thus need to acknowledge our considerable difficulties in reconstructing the history of Israelite laws on what we call adultery today.
But even further, the interpretative problems pertain to yet another habit found in many biblical interpretations.
Androcentric exegetes often conflate biblical laws on adultery with laws on rape. This habit also applies to the particular law in Deuteronomy. To make matters worse: in many interpretations, even explicit rape laws are classified as cases on adultery.
So why is that? In my view, this is so because androcentric scholarship on biblical law doesn’t really want to talk about rape to begin with. Instead, exegetes have been more comfortable to hold women responsible in situations of “sex related activities.” They have found it more attractive to refrain from a critical analysis of rape-prone assumptions in their work and the history of interpretation.
Of course, this hermeneutical strategy has been widely popular in society as a whole and is not only characteristic of biblical exegesis.
Thus, as I have argued elsewhere, a biblical text such as Deuteronomy 22:22 should not automatically be classified as a law on adultery. Rather, it should be seen as belonging to a whole set of legal materials in biblical and ancient Near Eastern literatures that depict various situations of possible and “real” rape.
If this is kept in mind, it becomes possible to regard interpretations on Babylonian and Deuteronomistic laws on “adultery,” or rather on “rape,” as androcentric habits of hermeneutically controlling women by disregarding issues of consent and by imagining women as always willing participants in sexual activities with other men. This hermeneutical situation also applies to the law in Deuteronomy 22:22, as illustrated by the simplistic reference in the New York Times piece quoted above.
Yet Professor Murray’s claim about marriage does not refer to the Bible or these hermeneutical difficulties in the history of reading Deuteronomy 22:22 and similar ancient laws. Still, I wonder if it was mere accident that Hebrew Bible interpreters have defined many of the so-called “adultery” laws as laws about adultery and not as laws about rape because they also love the idea of marriage. Of course, I don’t know for sure what the hermeneutical motivation was of those who relegated many of the laws about sex, adultery, and rape to discussions on marriage.
An example is the work of Raymond Westbrook who discusses the above mentioned laws and related ancient Near Eastern legislation in a book entitled Old Babylonian Marriage Law.
Yet again, the point about Murray’s asserted love for marriage does not relate to these matters. What Murray’s assertion encourages us to do is to make our thinking about our love for marriage more complicated in light of the popular practice of what we call adultery.
Obviously, people continue to marry, and increasingly in all kinds of variations. The question is why so many married partners betray their so-called better half. Or is it not a betrayal? Is “betrayal” too puritan an idea? And do we believe that they should or should not stay together when one of them finds another person more appealing? Or does it depend on whether the other person is just a fling, a temporary infatuation? But if the other person is more than a fling, then what? Do we marry again and again? Some people do. Is it because they “still love marriage”? Or do they love the feeling of being infatuated?
One thing seems pretty evident: our notions about marriage are evolving, changing, and in flux, as many of our other societal institutions are these days. Should the law hold all of them together? What are the alternatives? Love for the other person regardless of the wedding ring? And how do we engage our religious-spiritual traditions in these matters? Forget about them? Or do we use a literalist hermeneutics? Or, much preferred by this blogger, do we develop a “complexifying” approach with a deep appreciation of our traditions that challenge, enrich, and strengthen our positions even when we disagree with them?