Kiddushin 68: How to Create Exceptions to the Rule of Exclusion

The Gemara explores our past Mishna: how do we know that the children of certain kiddushin follow the status of their mothers?  A number of proof texts are offered to provide us with possibilities.  Some are verbal analogies - because the word im, with, sounds like the word am, people/nation, we can use one of Avraham's statements to prove who is a part of our nation.  Another proof text uses the verse, "If a man has two wives, and one is loved and the other hated", all of their offspring should be treated equally regarding inheritance, etc.  Who would be loved and who would be hated?  Because G-d loves all of G-d's people, the 'hated' wives are those who are prohibited to betroth their husbands.

Throughout today's daf we are offered different ideas regarding which relationships produce children that are included or excluded from the larger Jewish community.  What is most fascinating to me are the leniencies.  We learn that the children of women who are betrothed (through intercourse, I imagine) while menstruating, women who are accused of adultery as a sota, women who marry priests when they are non-virgins - are treated leniently.  Thus their children are not necessarily mamzerim.  Other, more vulnerable members of this ancient society, follow stringent guidelines.  An Egyptian who marries a Canaanite slave, for example.

Yes, it is true that the rabbis find proof texts to justify their decisions about children. But I argue that the rabbis could not be objective in their search for meaning.  They were creating the society that they wanted to create.  This means that while certain activities were forbidden - sex with a menstruating woman, sex with a sota, sex between a priest an a non-virgin, they were considered to be acceptable behaviours.  Why?

First: menstruating women.  There are many, many rabbinical laws regarding niddah.  There is an entire masechet dedicated to those halachot!  The rabbis must have understood that many couples would not follow those laws. In particular, a betrothal uniting two people who are ultimately permitted to be together might be difficult to revoke.  Would the community become irate if the laws were too punitive?

Next: a sota.  A sota is married to her husband.  Once he accuses her of adultery, having spoken with witnesses, he is not permitted to have sex with her until they make their way to the Temple and complete the ritual of the sota, exonerating her from this accusation.  The temptation to be intimate along the journey was addressed by insisting that a witness accompany the couple to Jerusalem.  However, the rabbis knew that a married couple might still succumb to their desire to be intimate.  Should that act be punished through a long-lasting mark on their child?  Isn't the entire sota ritual designed to ensure that men keep their jealousy in check; that husbands and wives stay together?

Finally: a priest and a widow or another non-virgin.  Such a union should produce a mamzer, but it produces its own special category of child: a chalal (also the status of the mother).  It is explicitly taught in Leviticus (21:7-15) that priests must not marry widows or divorcees.  How could the rabbis justify their decision to treat such relationships with leniency?  

My guess: priests had great power in ancient times.  If the rabbis were to tell priests that they could not marry widows, the priests might revolt.  Perhaps priests would argue that their wives had not had intercourse with other men whether or not that was the case.  Rabbinical authority was dependent upon its acceptance by the larger community.  The larger community's acceptance of Rabbinical law required that those in authority - the priests - accepted the rabbis' views.