Do Same-Sex Unions Qualify as Kiddushin, or Jewish Marriage?
Having explored the nature of kiddushin, this 1997 Reform responsum asks whether kiddushin can also apply to homosexual and lesbian unions.
The first part of this responsum explores the nature of kiddushin from both a traditional and a Reform perspective. Despite the conclusions drawn in this piece, a resolution adopted by the Central Conference of American Rabbis (CCAR) three years later, in March, 2000, gave Reform rabbis the individual choice of whether to officiate at same-sex unions, affirming "that the relationship of a Jewish, same gender couple is worthy of affirmation through appropriate Jewish ritual, and…that we recognize the diversity of opinions within our ranks on this issue." This responsum was issued by the Central Conference of American Rabbis (CCAR) Responsa Committee, chaired by Mark Washofsky.
At this juncture we should ask ourselves whether and to what extent we continue to accept this halakhic [Jewish legal] notion of kiddushin [the betrothal section of the Jewish marriage ceremony] in our Reform practice. For if our understanding differs substantially from that of the rabbinic tradition, we might have strong ground on which to claim that very different sorts of "marriage" qualify as kiddushin "from a Reform perspective."
Again, differing perspectives exist among us [the writers of the responsum].
On the one hand, some of us would argue that Reform Jewish marriage is essentially different from the biblical and rabbinic institutions of erusin [another name for kiddushin] and kiddushin. We do not regard marriage as a kinyan, an act by which the woman is "acquired" by her husband and passes into his legal domain. We reject the association of marriage with the other "acts of acquisition"--of land, chattel, Hebrew and Canaanite slaves--redacted together in the first chapter of Mishnah Kiddushin. And the widespread custom among us for the bride to "sanctify" the groom, just as he "sanctifies" her, by offering him a ring and pronouncing the formula harey attah mekudash li [behold you are sanctified unto me] suggests that we have transformed marriage into an egalitarian, reciprocal reality that differs substantially from the structure of kiddushin in the halakhic tradition.
The tradition's linkage of marriage to the arayot [a partner to whom one is prohibited by Leviticus 18] is also problematic for us. It is a fact, first of all, that we no longer observe the laws of yibum [laws of levirate marriage], halitzah [release from levirate marriage], and mamzerut [children of adulterous unions who traditionally are allowed to marry only other mamzerim or converts]. And, as we discuss [in the first part of this article], the very notion of arayot has been reconstructed in our discourse from a ritual to a moral problem. Thus, while we without any doubt acknowledge that numerous sexual relations remain forbidden, our primary concern is that the union between spouses be one that expresses our deepest moral conceptions of marriage, that it be one of exclusive sexual commitment.
And there is no reason why gays and lesbians cannot establish such a union. When we stand under the huppah [marriage canopy], we celebrate a joining together of two individuals in a relationship of equality and of love, one that promises emotional as well as sexual fulfillment, one that allows them to build a home that expresses Jewish values. This, in its essence, is what we mean when we call our marriages by the name kiddushin. If gay and lesbian couples, no less than their heterosexual counterparts can aspire to that kind of relationship, it would seem that kiddushin or "marriage," as we Reform Jews understand those terms, are fit names for it.
Yet the majority of us would argue that this definition of Reform Jewish marriage, while accurate, is but part of a wider picture. The classical rabbinic conception of kiddushin retains much of its relevance for us. We note, first of all, that the language of kinyan or acquisition is the mechanism by which Jewish law creates legal obligations of any kind; thus, even if we no longer hold that the husband "acquires" the wife, both parties do indeed "acquire" from the other all the legal obligations that flow from the formation of marriage.
In addition, we would claim that the reciprocal act of "sanctification" that takes place under a Reform Jewish huppah indicates the strengthening rather than the abandonment of the concept of kiddushin. It is our conviction that both bride and groom pass into the other's domain. The exclusivity of the marital relationship, the "setting apart" that lies at the heart of the idea of holiness and kiddushin itself, is now a mutual reality. We have not discarded the idea of kiddushin. On the contrary: we have extended its definition and its essence so that all its power and stringency apply to the husband as well as to the wife.
The issue of arayot, too, remains central to our conception of marriage. It is certainly true that, when standing under the huppah on the day of their great joy, the bride and the groom in all likelihood do not think about the laws of incest, adultery, and divorce. Their minds and those of the community are rightly centered upon the more aggadic [non-legal] and poetic elements of the union they are forming. Yet the legal facts of personal status continue to define the structure of Jewish marriage as we understand it.
We may not discuss the arayot in our wedding sermons, but they are no less real to us on that account. We abhor incest and marital infidelity, and we do not remarry either husband or wife until they have brought an end to their marriage by legal means. The marital ceremony, as the birkat [blessing of] erusin teaches us, comes to establish the contours of the arayot; it draws lines and sets boundaries that we continue to respect. Kiddushin is therefore more than an exalted moment of spirituality. It is as well a legal institution, whose structure and boundaries, no less than its feelings and emotions, are legitimate matters of rabbinic concern.
Given that the function of kiddushin has always been to draw lines that separate us (i.e., "sanctify us") from the arayot, it is implausible to suggest that this legal act can actually permit a sexual relationship that the Torah and all of tradition so define [as a prohibited relationship]. Moreover, as we have noted, kiddushin effects a change in the legal status of the parties by making them subject to the laws of adultery and divorce and by expanding the range of the prohibited incestual arayot.
Whatever the potential of homosexual couples to establish loving and stable relationships, these laws do not apply to them. The partners in a homosexual union cannot legally commit incest with each other's relatives; they cannot legally commit adultery; and neither requires a divorce should he or she desire to enter into a Jewish marriage. It therefore makes little sense to use the term kiddushin to describe a union that involves none of these matters and does not alter the legal status of its participants.
Most of the members of this Committee oppose the use of the term kiddushin to describe a gay or lesbian union, precisely because the historic definition of that term, its legal content, and the notions of kedushah [holiness] that lie at its foundations rule out its application to anything but heterosexual Jewish marriage.
We accept the traditional understanding of Jewish marriage as that kind of marriage that recognizes and is contracted within the sexual boundaries set by the Torah's law of arayot. Even those of us who believe that kedushah, sanctity, can exist in gay and lesbian relationships and who would recognize those unions as a form of Jewish marriage concede that the word kiddushin is difficult to separate from its heterosexual connotations.