The Death Penalty in Leviticus 20

Jumping forward two chapters from our previous reference, we find the "male lying with male" prohibition repeated, but this time with a specific punishment attached. And it's quite straight-forward: "they shall be put to death". What do we do with this?

Once again, I start with a few questions:

1. What is the context for this verse, and why is it repeated so soon after the first reference?
2. What are the general parameters for calling for the death penalty in Scripture?
3. What can we learn by from the assignment of the death penalty to this prohibition?

The Context in Leviticus 20

Once again, we're in a section of Leviticus often called the Holiness Code which started in chapter 17. Similar to the rest of the book, it is divided into multiple sections which mostly line up with our chapter divisions. Each section begins with a variation of the phrase:

So there is a sense where each is somewhat of a self-contained section, yet all very much connected into the larger theme of holiness, or being set apart. Some sections seem to have a stronger focus than others. For example, chapter 17 is mostly about blood, death and sacrifices, chapter 19 seems more eclectic, covering idols, sacrifices, the poor, justice, farming, and much more, and chapter 21 is focused on holiness for those practicing as priests.

The theme in the self-contained 20th chapter of Leviticus seems to be about setting appropriate penalties for transgressions that often have already been prohibited elsewhere. The punishments are primarily death and some form of banishment or outlawing from the people.

1. Death (stoning): Giving children to Molech. Stoned and cut off from the people.
2. Banishment: Following magicians or spirits of the dead.
3. Death: Cursing your mother or father.
4. Death: A man committing adultery with his neighbor's wife – both executed.
5. Death: Man having sex with his father's wife (likely not his mother) – both executed.
6. Death: Man having sex with his daughter-in-law – both executed.
7. Death: Man having sex with another man – both executed.
8. Death (burned alive): Man marrying a woman and her mother – all executed.
9. Death: Man or woman having sex with an animal – kill person and animal.
10. Death (public execution): Man having sex with a sister or half-sister – both executed.
11. Banishment: Man having sex with a menstruating woman – both outlawed.
12. "Bearing Consequences": Sex with aunt – "they will bear the consequences of their guilt".
13.  Die Childless: Man marrying his brother's wife (presumably while the brother is living, because otherwise he's commanded to marry her).
14. Death (stoning): A man or woman who is a spirit medium or magician.

(Side note: Both men and women are singled out for bestiality, but only men are the focus of same-gender sex in both of the Old Testament references. We only see women engaging in same-gender sex in one verse in Romans.)

The chapter ends with a repeat of the exhortation to keep the laws, putting them into practice, so that "the land to which I bring you to settle in may not vomit you out" (verse 22). They are to be consecrated to Yahweh, set apart from the other peoples.

After chapter 20 ends we move away from punishments back into further rules. That's the textual context as far as I can make out.

Since the focus seems to be on the death penalty, let's look at that subject more closely.

Capital Punishment in the Tanakh (OT)

Very clearly, chapter 20 has a focus on prescribing death for various offenses. However, it's not the only place where this punishment is commanded.

Other Capital Offenses in the Law

Here's a short list of other actions that face the death penalty:

• New brides who can't prove their virginity if accused by husband (stoned to death at her father's house). If the accuser is proven wrong, he is fined. (Deut. 22:20-21)
• A rapist – but also his victim if they are in the city. (Deut. 22:23-27)
• The daughter of a priest who becomes a prostitute must be burned alive. (Lev. 21:9)
• God promises the sword against abusers of orphans and widows (Exodus 22:22-24)
• Speaking God's name in a curse – stoned by the community. (Lev. 24:14-16, 23)
• Going up on or even touching Mount Sinai when Moses was on it. (Exodus 19:12)
• Not resting on the Sabbath. (Exodus 31:14 – carried out in Numbers 15:32-36)
• Preaching a different god – up to killing an entire city if drawn away. (Deut. 13)
• Any "outsider" (non-Levite?) who comes near the tabernacle during set up or tear down. (Numbers 1:51)
• A son who does not obey his parents should be stoned. (Deuteronomy 21:18-21)
• Most murders, but with some exemptions for killing a slave. (Exodus 21:20-21)
• A kidnapper with intent to sell into slavery. (Exodus 21:16)
• Anyone who does not accept the decision of a judge or priest. (Deut. 18:8-13)
• The keeper of a bull that kills after being known as dangerous. (Exodus 21:29)
• Robbers, idolaters, murderers, adulterers, those who oppress the poor and needy, and those who take interest on loans or keep collateral are equally condemned in Ezekiel 18.

By one count I read online, 36 of the 613 commandments are given the death penalty.

What would this punishment look like?

Most reference to capital punishment in the Old Testament is simply described as being "put to death" with no methods prescribed. Stoning and burning alive are specifically designated for a few cases. 

We also have access to ancient oral commentaries (Mishnah) which were gradually compiled into the a collection called the Talmud after the destruction of the temple in 70 CE. These contain a variety of viewpoints on Scripture, functioning as commentaries for teaching and debate. Jesus would likely have been familiar with many of these teachings as oral tradition. From these resources, we can see more details on what execution might have looked like.

The section below is mostly quoted from Wikipedia with the addition of the second descriptions for stoning which was found in another document.

1. Sekila – stoning
   A) "This was performed by pushing a person off a height of at least 2 stories. If the person didn't die, then the executioners (the witnesses) brought a rock that was so large that it took both of them to lift it; this was placed on the condemned person to crush them."
   B) "the other view says that it was carried out much as one thinks and, as seems to be specified in Shoftim (17:7), the first stones are thrown by the two witnesses."
2. Serefah – burning
   "This was done by melting lead, and pouring it down the throat of the condemned person."
3. Hereg – decapitation
   This is also known as "being put to the sword" (beheading).
4. Chenek – strangulation
   "A rope was wound around the condemned person's neck, and the executioners (the witnesses) pulled from either side to strangle the condemned person." The other document describes: "It was accomplished by having the convict stand in mud up to his or her knees, after which a pair of scarves were wound around the neck and then pulled in opposite directions by two witnesses."

The classic concept of stoning, which is apparently what was described in New Testament accounts, is described by Wikipedia here:

According to Judaic tradition (found in the article above anyway), stoning was the method of choice for violation of Leviticus 20:13. It's likely that the classic picture of stoning that we get from the New Testament was more of a mob killing scenario than a judicial ruling (especially since the Jews had no official authority to execute under the Romans). So we're probably looking at the "push off the rooftop" scenario here.

So what do we do with all of this?

So, I imagine it seems like I'm wandering far afield here – what happened to the central issue? Why are all these other capital offenses being brought up? Definitely a fair question.

I think if we're going to be serious about the Bible, we Christians need to really think long and hard about a few questions that I personally find troubling:

1. If we're going to apply the traditional interpretation of this law today, shouldn't we have to execute all men who have sex with men regardless of their faith? There are some Christians who are calling for this.
2. How comfortable are we with capital punishment for every one of these offenses being God's divinely dictated, absolute, unquestioned ideal practice for his holy people Israel?

I know these are hard questions. Some might say a Christian should not be allowed to ask them. And they may seem inappropriate for either this topic or in general. Yet I have to wonder if a literal, unquestioning reading of the Tanakh has too often led to things that the majority of Christians would find inconsistent with Jesus's teachings, and if God is wanting us to ask some bigger questions.

Maybe we can find some examples of this approach?

What dOes Judaism think about all this?

In my research, it seems that we Christians aren't the only ones who were bothered by these punishments. At least by around the time of Jesus, tradition had affirmed the justice of these executions in theory, but made them almost impossible to apply in practice. The list of requirements for a death sentence to be carried out reads almost like a Marx Brothers comedy avoidance routine. 

We even see Jesus reference this in Matthew 15 (and Mark 7). He calls the Pharisees and scribes hypocrites for avoiding prominent laws like the death penalty for children not honoring their parents, and yet forcing others to obey minor rules such as hand-washing (which they had accused him of breaking).

While I've seen some people try to make the case that Jesus is endorsing capital punishment, it seems more likely that he has no problem with the execution not being applied. His concern is for both the hypocrisy, and the principle behind the law which they were benefiting financially by allowing people to break (allowing for wealth to be set aside for future donation to the temple so they were "unable" to care for their needy parents).

And of course, the famous story of Jesus and the woman caught in adultery shows his attitude toward applying the death penalty prescribed in the Law. By a strict interpretation of the Law, he should have told the Pharisees to stone her. Yet, here he applies his new interpretation of the Law ("You have heard that it was said in ancient times...but I say to you...") with a heart for the person, not the commandment.

Jewish scholars today, even the Orthodox, generally hold to the interpretation that the commandments with death penalties are for emphasis, not practice. The only crimes for which you can be executed in the modern state of Israel today are war crimes, genocide (including the Holocaust), and treason. And even then it doesn't really happen much.

Even faced with constant terrorist activity, the courts in modern Israel have only ever executed two individuals, both prominent Nazis.

"After being confronted with the proliferation of brutal terrorist acts, the military courts stated that, though the death penalty may be more appropriate, they were bound "to uphold principles of the State of Israel, the moral concepts of Jewish tradition, in which a Sanhedrin that passed a death sentence was considered to be 'a bloody Sanhedrin.'" – from the document linked earlier.

The Death Penalty in a Christian-VAlues Nation?

Personally, I feel it's unfortunate that the United States has not followed the example of Israel when it comes to carrying out the punishments we claim to have taken from the same source. That's even before we look at the example of Jesus, especially as a nation which many conservative evangelicals believe to be deliberately founded as a Christian nation. It's quite disturbing for me to see the company our nation keeps in the list of those who conduct executions around the world, ranked by number of those killed in 2012 (one year):

1. People's Republic of China (4,000+)
2. Iran (314+)
3. Iraq (129+)
4. Saudi Arabia (79+)
5. United States (43)
6. Yemen (28+)
7. Sudan (19+)
8. Afghanistan (14)
9. Gambia (9)
10. Japan (7)
11. North Korea (6+)

Of course, that's another whole essay in itself. Let's end this section by simply pointing out that a literal reading and application of Leviticus 20 in the traditional understanding would require us to execute all gay males who have ever engaged in sex. Fortunately there are very few Christians who advocate for this.

Using the Death Penalty to cross-reference commandments

Actions which call for capital punishment are a minority across all of the Law. Judaic tradition holds that there are 613 different commandments total, but only a few of these (36) call for execution if violated. Because it is a small group, and many of the rules are repeated across multiple books (primarily Exodus, Leviticus and Deuteronomy), we may be able to learn something by comparison between each collection of laws.

In fact, we can find every single prohibition in Leviticus that calls for the death penalty repeated in the book of Deuteronomy. Well, all except one. That's right, the general prohibition against male-with-male sex is not in Deuteronomy. However, there is a death penalty applied in Deuteronomy against "male cult prostitutes" (קָדֵשׁ, qadesh 6945) which were otherwise not mentioned by name in Leviticus.

I wonder if there's a connection here?

Judah and Tamar

In Genesis 38 we find Judah purchasing the services of a "wayside prostitute" (actually his daughter-in-law Tamar) while on a journey. When he attempts to send the payment later, he enters the nearby town and openly asks the people "where is the temple prostitute who was [here]?" (38:21).

The Hebrew word used here is qedeshah (קְדֵשָׁה 6948), which is the feminine version of qadesh (קָדֵשׁ 6945). Both are directly related to the concept of consecrating or devoting something to sacred duty, qadash (קָדַשׁ 6942), as used in some of the following ways:

• the Sabbath (Gen 2:3)
• the people of God (Ex 19:10)
• the tabernacle (Ex 29:44)
• the priests (Ex 28:3)

In this case we're talking about prostitutes who are consecrated for sacred duty in pagan sex rituals. This word is translated by the King James Version as "sodomite" (5x) or "unclean" (1x), after the pattern of the Greek Septuagint translation which Jesus would have been familiar with. This remains a generally accepted word for translation for many versions, and is also used in 1 Corinthians 6:9 in the NRSV. We'll get to that later of course.

Qadesh is also used in one of the abomination passages we looked at in the previous section, which translates it as "male cult prostitutes" (1 Kings 14:24). It is repeated in three more passages in Kings, and once also in Job (Job 36:14).

Finally, when it is reported that Tamar is pregnant, Judah orders her to be burned alive. (It's only when she reveals how she tricked Judah into to carrying out the duties he was required by Levirate marriage rules that she is allowed to live.) This sounds similar to the rule about burning alive the daughters of priests who enter into prostitution – maybe this was also related to sacred cult prostitution in particular?

Onan and Tamar

Before we wrap up, there's one more thread we can follow back slightly from the story of Judah and Tamar. That is, what was the background of Judah's original failure as regards Tamar?

Tamar had married Judah's firstborn son Er, but he died and she became a widow. According to Levirate marriage rules, she was then given to Judah's next son, Onan, so that he would produce a son through Tamar to carry on Er's line. Onan's sacred duty was to provide the offspring in the name of his brother.

But Onan wanted nothing to do with producing and providing for a child that would not be known as his. He made sure Tamar would not be impregnated during sex using a basic form of birth control, as described above (yes, this is the same "seed" word we looked at in the last section). This rejection of his duty, and the wasting of this seed on the ground, was considered so despicable that we see his fate described as ending in death, attributed directly to this act.

Throughout most of history (until the 1600's!), it was assumed that men carried the entire "seed" of children, and that the woman merely incubated the child until born. Therefore, the spilling of the seed on the ground was seen as a form of abortion! You can imagine the cultural view on any kind of non-procreational sexual relationships. It was far more important to prioritize child-bearing when populations were low and death-rates from disease, war, poverty, etc, were high. Some Christian groups today believe these principles continue to apply (Roman Catholics, officially at least, and some Fundamentalist Protestants for example), but most of us realize this was a cultural/contextual situation, not a binding principal for all time.

Summary of looking at Leviticus 20:13

While the core of the action commanded against in chapter 18 has not changed, I think we've been able to ask some good questions in this second section.

1. What we have added to the first mention of the prohibition two chapters ago is the focus on punishment, specifically on the death penalty in chapter 20.
2. The death penalty is applied to a number of different violations of the law, is quite disturbing in theory, yet has been interpreted for practice in a rather more restricted manner by both 1st century and modern Judaism.
3. By cross-referencing the death penalty, we have discovered some further connections to temple prostitution rituals.

What do you think about what I found in my research in this area?

Next, we move into the New Testament age by looking at some of Saint Paul's writings.