Balancing a Concern for Gay Rights With a Commitment to Jewish Texts

A 2000 resolution by the Reform rabbinate supports affirmation of same-sex unions, but a 1997 responsum did not equate gay marriage with the betrothal portion of the Jewish marriage ceremony.

A resolution adopted by the Central Conference of American Rabbis (CCAR) in March, 2000, affirmed "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." Yet the choice of whether to officiate at such unions was left to the individual rabbi. Just three years earlier, however, a responsum issued by the CCAR Responsa Committee supported civil, but not religious same-sex marriage. For the Reform movement a responsum--traditionally a Jewish legal opinion--provides "guidance, not governance" and represents "a broad consensus as to mainstream Reform Jewish thinking on important issues," yet individual rabbis and communities retain responsibility for taking a stance on particular issues.

 

The excerpt below from the responsum explores the nature of kiddushin (betrothal) from both a traditional and a Reform perspective. The second part of the article examines whether same-sex unions qualify as kiddushin from a Reform perspective. Their struggle to find a balance between Jewish texts and contemporary ethics reveals the complexity of developing a Jewish approach to homosexual and lesbian marriages. This responsum was issued by the CCAR Responsa Committee, chaired by Mark Washofsky.

Kiddushin, Reform Judaism, and Homosexuality

Do homosexual unions qualify as kiddushin from a Reform perspective? That is to say, given that we recognize the existence of stable and committed gay and lesbian relationships, do these unions display enough of the major characteristics of marriage so as to deserve that title? To put the question in this way entails that we define, as carefully and as fully as we can, what we mean by "Jewish marriage." Does our definition of that institution allow for its extension to gay and lesbian couples?

 

It is important to note that, when we refer in this section to "marriage," we do not mean the idea of marriage in the abstract or marriage as a cross-cultural anthropological fact. We mean rather Jewish marriage as an aspect of the social and religious life of a particular historical community.

 

Jewish marriage is an institution and a pattern of life with its own unique structure and history. It resembles, in many respects, other institutions of marriage, yet in many other ways it differs from them, and radically so. To say that a monogamous homosexual union is "like" a marriage does not prove, therefore, that it qualifies under the definition of Jewish marriage. Before we can ask whether to extend the possibility of marriage to gay and lesbian couples, we need first to understand the institutional nature of Jewish marriage and to consider the variations that Reform Judaism has introduced into the practice.

 

It is in this way, and only in this way, that we can begin to consider whether homosexual couples can be included within the circumference of a "Reform perspective" on kiddushin.

Kiddushin as Holiness

The word kiddushin, by which we designate Jewish marriage, is discussed as follows in an important Reform Jewish text [Gates of Mitzvah]:

 

"Nothing clarifies the Jewish attitude toward marriage quite as well as the traditional name for the wedding ceremony, kiddushin, derived from the Hebrew kadosh--holy…

 

" …while all relationships, like all time and space, should be considered essentially sacred, certain relationships are especially exalted. In Judaism the Holy of Holies of all relationships, to which the poetic genius of the Hebraic spirit turned most often for the paradigm of the covenant between God and Israel, was and is the covenant between husband and wife... A sacred entity comes into being in Jewish marriage. As in the Kiddush [blessing over wine] of Shabbat [Sabbath] we set apart a period of time as holy, in Kiddushin the husband and wife set each other apart...

 

"Kiddushin is the rooting of the human in the realm of the sacred, with the goal that all our relationships become holy, bearing the blossom and the fruit of life.

 

"A Jewish marriage, then, takes place when a man and a woman [say] to [each] other: 'Behold you are consecrated to me... according to the tradition of Moses and Israel.' It is as if each were saying to the other: 'I will do everything that I can to make our relationship sacred.'"

 

This passage speaks the language of aggadah, the evocative, lyrical, and metaphorical vernacular of Jewish lore. Taking as its point of departure a single word, kiddushin, it weaves a rich tapestry of religious ideas. What do we mean by "sacred, " kadosh? What can it mean to call the institution of marriage a "sanctification"? How do the images, feelings, and responses we associate with the concept of holiness shed light upon the nature and purpose of the marital bond?

 

To the extent that we adopt this aggadic approach to the definition of kiddushin, then surely it is possible to make a place for gays and lesbians within the institution of marriage. For if kiddushin, like its Hebrew root, implies a "setting apart"--the creation of a relationship of exclusive commitment and devotion similar to that which defines the relationship of Israel to its God--then homosexuals, who are as capable as heterosexuals of establishing exclusive and loving unions, deserve to be included.

Marriage As a Legal Transformation of Status

Yet the aggadah does not define kiddushin, any more than poets define marriage. True, aggadah calls our attention to the most exalted possibilities inherent in the union of husband and wife. But it does not describe (because that is not its function) the nature of marriage as a legal institution, which it manifestly is. That is to say, the full meaning of kiddushin cannot be conveyed by means of a homiletical treatise upon the etymology of that word. It is a complex of law and custom that, like "marriage" in every other social tradition, effects far-reaching transformations in the legal status of the parties involved. Our hearts soar at the mention of the aggadic aspects of kiddushin. But to ignore the legal, halakhic aspects of Jewish marriage is to distort what kiddushin really is and the way it functions in the fabric of traditional Jewish life.

 

Kiddushin is the rabbinic legal term for "Jewish marriage," which means first and foremost a marriage contracted between two Jews. A marriage contracted with one of the arayot--a partner to whom one is prohibited by Leviticus 18--is invalid, and no get [bill of divorce] is required to permit the parties to remarry. The legal bond of kiddushin (also called erusin) is created by a ma`aseh kinyan, an act of acquisition performed between the couple. In its accepted, customary form, this act requires that, in the presence of two witnesses, the man give the woman a ring or some other object of monetary value and declare, either in an explicit verbal formula or by behavior that clearly manifests his intent, that he wishes her to be his wife. If she accepts the ring or object in a manner that indicates her freely given consent to the marriage, the couple are betrothed, though the marriage process is not completed until the ceremony of huppah or nissuin [the second part of the Jewish marriage ceremony].

 

Kiddushin creates the following legal consequences:

 

1.      The wife enters the husband's legal domain, or reshut, meaning that she is permitted sexually only to her husband. In so doing she becomes an ervah [prohibited] to all other men, and sexual intercourse between her and any of them is adultery. This, as far as the Talmud is concerned, is the original meaning of the word kiddushin:"he forbids her to all other men, as though she were hekdesh (consecrated property)." The wife's status changes only at the dissolution of the marriage, upon the husband's death or upon divorce, at which time the woman "acquires herself" and re-enters her own reshut.

 

2.      The list of arayot, of forbidden sexual partners, expands to include the relatives of the spouse, as mentioned in Leviticus 18 and 20. The offspring of any of those prohibited unions, whether incestuous or adulterous, is a mamzer [only able to marry another mamzer or a convert].

 

3.      Once the couple are betrothed, the laws of levirate marriage and release (yibum and halitzah) go into effect. [Levitate marriage requires the brother of the deceased to marry his childless widow in order to perpetuate the name of the dead husband by providing him with a child. The] widow is forbidden to remarry until her brother(s)-in-law perform either of these two rituals.

 

All the other legal consequences of Jewish marriage, primarily those relating to the financial arrangements between the husband and wife, come into being at the ceremony of nissuin.

 

Kiddushin, therefore, is a legal transaction that alters the conjugal status of the parties involved, making them subject to the laws of adultery, arayot, and mamzerut. The nature of kiddushin as a matter of legal experience is best summarized perhaps in the words of the blessing (birkat erusin) that the rabbis ordained for recitation at the time the transaction is carried out:

 

"Praised are You, Adonai our God, sovereign of the Universe, Who has sanctified us through mitzvot [commandments] and commanded us concerning the forbidden relations (arayot), Who has forbidden us to the betrothed (ha'arusot) and has permitted us to those whom we have married (hanesu'ot) by means of huppah and kiddushin. Praised are You, Adonai our God; You sanctify (mekadesh) Your people Israel by means of huppah and kiddushin."

 

In other words, Jewish marriage as a legal act establishes and transforms previously existing sexual boundaries. Two individuals who were previously forbidden to each other sexually are now permitted as husband and wife. Individuals who previously were potential marriage partners have now, due to their family relation to our spouse, become arayot, prohibited as incest. A formerly unmarried woman is now forbidden by the law of adultery to all men but her husband until he dies or the two of them are divorced.

 

It is through reference to the arayot that we can understand the meaning of kiddushin as a legal institution. It is a "sanctification," a "setting apart", the creation of an exclusive sexual relationship between husband and wife by which God sanctifies (mekadesh) Israel. Just as the early rabbis understood the commandment to "be holy" as a call to abstain from the arayot, so kiddushin rests upon a clear conception of the sexual relationships that the Torah has prohibited and permitted to the Israelite community. There is no such thing, in other words, as Jewish marriage in the absence of the prohibitions of the arayot, the recognition of the boundaries of permitted and prohibited sexual intercourse. And no marriage is a valid Jewish marriage if it is contracted between persons prohibited to each other as arayot.

For the continuation of this responsa, click here.