Sefer HaChinuch ספר החינוך

[For a man] to not have intercourse with males: To not have intercourse with males, as it is stated (Leviticus 18:22), “And with a male you shall not lay, the layings of a woman.” And Rambam, may his memory be blessed, wrote (Sefer HaMitzvot, Negative Commandments 350), “And this negative commandment about this very matter is repeated in another place, as it is written (Deuteronomy 23:18), ‘and there shall not be a kadesh from the Children of Israel.’” It appears that the rabbi, may his memory be blessed, does not agree with that which Onkelos translated (Onkelos on Deuteronomy 21:18), “and a man of the Children of Israel shall not marry a woman maidservant” — the understanding of which is a Canaanite (gentile) maidservant. Rather, his opinion is that “there shall not be a kadesh” only comes as additional negative commandments for male homosexuality, [just] as there are several [other] warnings (negative commandments) that are repeated with different words. And I have seen about Ramban, may his memory be blessed, (Ramban on Deuteronomy 21:18) that he also does not agree with the translation, but would say that the negative commandment of “there shall not be a kadesh” comes to warn that we not allow there to be among us — the holy nation — a kadesh; and that is a man who is designated to lay with men, as is known about them in the lands of the Yishmaelites to this day. And because of this, it is stated “from the Children of Israel” — since we are not warned about this with the [other] nations. As if there was a kadesh from the nations — and even amongst us — we are not warned about him; as we are not warned (commanded) about others besides us, except for idolatry alone.

And if so, let it not be difficult to you that we do not say like the words of the translator (Onkelos) — from which verse do we learn the negative commandment of marrying a maidservant? And lest you say, from that which it is written (Deuteronomy 7:3), “Do not get married with them” — that is not [correct], as behold, it is explained in the Gemara that this is coming [specifically] for the seven [Canaanite] nations, and about them is it written. And [it is speaking about] specifically in their conversion; as in their gentileness, the expression “marriage” is not applicable — and as we will write with God’s help in its place, in the Order of Va’etchanan (Sefer HaChinukh 427). But it is possible to say that we learn the prohibition of a maidservant as included in the prohibition of all the nations that are not Israelites, that it is prohibited to cling to them. And [it is] like the Sages expounded (Kiddushin 68b) from that which is written (Deuteronomy 7:4), “For they will remove your son from after Me” — to include all who remove. And likewise, a Canaanite maidservant is included in those who remove, since she is not a full Israelite; as behold, there are some commandments about which she is not obligated. And those are the ones in the section of the Torah in which it is explicitly written, “Speak to the Children of Israel” (e.g. Leviticus 18:2), to exclude anyone who is not from the Children of Israel, as it is explained in the Gemara in a few places. And with this, they are included in those that remove.

It comes out according to our words that the explanation of the translator of Aramaic (it should say, is true) that there is a negative commandment with a maidservant, except that we learn it from another place. And [regarding that which] Ramban, may his memory be blessed, considers the negative commandment of “there shall not be a kadesh,” that we not allow there to be among us a man who is designated for licentiousness in the manner of the Yishmaelites, as we said — there is no negative commandment about this for Rambam, may his memory be blessed. And hence he wrote that this verse only came to strengthen the warning not to have intercourse with males, as we wrote. And this is his language that he wrote about this matter: “And this is the true opinion, that this negative commandment is repeated for strengthening; not so there be a warning (separate negative commandment) for the one laid with — as we learn the warning for the one laying and the one laid with, from its stating, ‘you shall not lay.’ And it is elucidated in the Gemara Sanhedrin 54b that Rabbi Yishmael is the one that puts ‘there shall not be a kadesh,’ as a warning for the one laid with. And according to his opinion, [a man] who has intercourse with a male and brings a male upon him in one [period of lack of] knowledge, he is liable two [sin-offerings]. But Rabbi Akiva says, ‘He does not need two. Behold it states, “And with a male you shall not lay (tishkhav), the layings of a woman” — read it as be laid (tishakhev).’ And hence for him, one who has intercourse with a male and brings a male upon him in one [period of lack of] knowledge is only liable one. And he said in this reasoning, ‘“You shall not lay” is [all] one.’” To here [are his words].

It is from the roots of the commandment [that it is] because God, blessed be He, desired the settling of His world that He created. And therefore He commanded that [men] not destroy their seed with male homosexuality. As it is truly destruction, since there is neither [reproductive] benefit, nor a commandment of [a wife’s] appointed time — besides that the matter of this craziness is disgusting and ugly to anyone with intelligence. And it is not fitting for a man who is born for the service of his Creator to become distorted (some have the textual variant, to become repulsive) with these ugly acts. And from this root, they, may their memory be blessed, said (Sanhedrin 76b) that it is forbidden to marry a woman to a minor, as it is similar to licentiousness; and so [too,] that a man not marry an elderly woman nor a sterile woman that is not [able] to give birth. (See Yevamot 68b.)

From the laws of the commandment is that which they, may their memory be blessed, said (Sanhedrin 54a) that [in a case of a man] who has intercourse with a male or brings a male upon him, both of them are stoned, if they are both adults. But if one is an adult and one is a minor less than nine years old and a day, they are both exempt from Torah writ — but we strike the adult with rabbinic lashes of rebellion. And if the one was a minor who did not reach the category of thirteen years and a day, but he is nonetheless nine years and a day and up, the adult is stoned — whether he had intercourse with him or brought him upon himself — and the minor is exempt from Torah writ, but we strike him [with rabbinic lashes]. (See Mishneh Torah, Laws of Theft 1:10.) And it is one if he had intercourse with a male or with a hermaphrodite [anally], he is liable; but [vaginally], he is exempt (Yevamot 83b) from Torah writ, but we strike him [with rabbinic lashes]. About a tumtum (one whose sexual organ is covered by flesh), there is a doubt, and he is therefore forbidden rabbinically. (See Mishneh Torah, Laws of Forbidden Foods 5:8.) But it is permitted for a hermaphrodite to marry a woman. And because of the concern for homosexuality, they, may their memory be blessed, forbade (Avodah Zarah 15b) to give over an Israelite child to a gentile to teach him a book or a craft — as they are all suspect regarding homosexuality. And the place of the rest of its details is written at the end of the Order.

And this prohibition is practiced in every place and at all times. And one who transgresses it is liable for stoning once he inserts himself — meaning to say [even if] he only inserts the tip of the corona, as we have said. And if there are no witnesses and warning, he is liable for excision when volitional; when inadvertent, he is obligated to bring a sin-offering. And this is from the sexual prohibitions that all the people of the world — whether Israelites or all the other nations — are commanded more generally. And Rambam, may his memory be blessed, wrote (Mishneh Torah, Laws of Forbidden Intercourse 14:18) that he saw himself that even Canaanite (gentile) slaves are included in this prohibition of the male and are killed for it. Even though they are not included in the prohibition of the sexual prohibitions of relatives — as they are even permitted with their mothers and their sisters — since they have left the category of [gentiles] and not entered the category of Israelites; nonetheless, they are forbidden. And likewise the prohibition of [bestiality] is forbidden to all men.