CCAR RESPONSA COMMITTEE – 2014
Same-Sex Marriage as Kiddushin
In states where same-sex marriage and civil unions are legal by civil law, is it appropriate for Reform rabbis to officiate at a ceremony of marriage of two Jews of the same sex, and to consider the union kiddushin? Is it appropriate for Reform rabbis in states that have not yet legalized same-sex marriage to officiate at a ceremony of marriage of two Jews of the same sex, and to consider the union kiddushin?
1. Background. Our sh’elah is a complex one, consisting of several discrete issues: rabbinical officiation at weddings between two Jews of the same sex where such unions are legally recognized as marriage; whether such unions are considered kiddushin under the Reform Jewish conception of that Jewish legal term; and the Jewish legal status of same-sex unions in jurisdictions that as yet do not recognize them as legal marriage. Our answer begins with a historical summary of the CCAR’s stance in this arena.
The Central Conference of American Rabbis has for many years been fully supportive of social equality for lesbians and gays. In 1977 the Conference adopted a resolution calling for the decriminalization of same-sex intimacy between consenting adults and the prohibition of discrimination against gays and lesbians as persons. In 1996 the CCAR endorsed a resolution supporting the right of gay and lesbian couples to share fully and equally in the rights of civil marriage. The resolution, apart from repeating the call for full civil rights for homosexuals, also calls for complete civil marriage equality and opposes any attempt to amend the U.S. Constitution to facilitate discrimination against homosexuals and their families.
Our stance on officiation has changed sharply during the last quarter century. In 1990, the majority of an ad hoc committee of the Conference declared that only heterosexual relationships qualify as kiddushin and that special ceremonies solemnizing same-sex unions “are matters of continuing discussion and differences of opinion.” The final clause of the 1996 resolution stated explicitly that it was not addressing the question of rabbinic officiation at same-sex marriages, thus leaving that question open. Also in 1996, the Responsa Committee issued a t’shuvah that explored the question of whether a “Reform rabbi [may] officiate at a wedding or ‘commitment’ ceremony between two homosexuals” and whether such a union may be considered kiddushin from a Reform perspective. The responsum was unusually long, encompassing two extensively argued opinions, one speaking for the majority and one speaking for the minority of the Committee. Its discussion ranged over a number of topics, including the attitude of Jewish tradition and of Reform Judaism toward homosexuality and the rights of gay and lesbian people, the history of the CCAR’s stance on the subject of homosexual marriage, the nature of rabbinical authority, the definition of kiddushin, and the need recognized by both the majority and the minority opinions to find ways to bring same-sex couples into full and active participation within our communities. In the end, the majority held that “We do not understand Jewish marriage apart from the concept of kiddushin, and our interpretation of rabbinic authority does not embrace the power to ‘sanctify’ any relationship that cannot be kiddushin as its functional equivalent,” while the minority expressed the view that “a Reform rabbi may officiate at a wedding or ‘commitment’ ceremony for two homosexuals, although for important historical and theological reasons, that ceremony should perhaps not be called kiddushin.”
In 2000 the CCAR resolved that, “the relationship of a Jewish, same gender couple is worthy of affirmation through appropriate Jewish ritual” and called for support of colleagues who officiate at “rituals of union for same-gender couples” as well as those who do not. This resolution, which is currently the latest statement by the CCAR on the issue, establishes its official position of the Conference and as such supersedes all previous statements of the Conference and of its constituent committees to the contrary. In particular, the resolution’s language overturned the majority opinion in the 1996 t’shuvah of this Committee, which had explicitly held against such ritual affirmation.
The 2000 resolution answers the first part of our sh’elah: since that date, the CCAR and all its constituent committees have approved of rabbinical officiation at same-sex marriage ceremonies. Yet the resolution does not explicitly address the Jewish legal status of same-sex unions: can they be considered kiddushin? The majority opinions of both the 1990 resolution and the 1996 responsum answered in the negative. Now, in 2013, it is time to revisit this question. Much has changed, even since 2000, in our understanding of homosexual partnerships, and this change significantly affects the way in which we use the terms “marriage” and kiddushin to describe them.
2. Same-Sex Marriage as Kiddushin. Our sh’elah pertains to two individuals of the same sex. Both are Jews, both members of the covenant of Israel, and they wish to be joined in marriage in a ceremony — specifically kiddushin — in which a rabbi serves as officiant (m’sader). Our starting point is the recognition that homosexuality is neither a chait (sin) nor a to’evah (abomination), as was long a prevailing opinion. There is abundant scientific and psychological evidence that homosexuality is an inherent sexual orientation (and not a “lifestyle choice,” as has often been erroneously claimed). Our tradition is grounded in justice and ethics, and both demand that we recognize not only the full humanity and equality of homosexuals, but that their love and commitments are no less than those of heterosexuals. The minority view of the 1996 t’shuvah cited above noted:
The tradition’s linkage of marriage to the arayot is also problematic for us. It is a fact, first of all, that we no longer observe the laws of yibum, chalitzah, and mamzerut. And, as we discuss above, 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 chupah, 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 which 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 [emphasis in original].
In short: a union of marriage between two Jews deserves to be called kiddushin, the tradition’s term for Jewish marriage. We agree. The remainder of this sh’elah will explain why.
Mishnah Kiddushin 1:1 stipulates that Jewish marriage can be contracted in any of three ways: with money (as when a man gives a woman an object of value, such as a ring or a coin, and in the presence of two witnesses she freely accepts the object); through a sh’tar, a written deed in which the phrase “through this deed” establishes the marriage; or by sexual congress with the intention of creating a marriage bond. The Rabbis strongly disapproved of the third method. Today, kiddushin (betrothal) is transacted through the giving and acceptance of an object of monetary value (usually a ring).
At the core of this legal contract lie the underlying Jewish values that characterize kiddushin. These flow, we believe, from the verse “It is not good for a person to be alone” (Genesis 2:18), by which we understand that Torah supports loving and committed marital relationship as a natural state of human existence. We would hope that such relationships are a source of joy for the two people involved, and a blessing to family members, friends, and the Jewish community. Our tradition strongly frowns on celibacy and encourages life partnerships. Finding an ezer k’negdo (Genesis 2:20), a mutually supportive and enriching life partner, is an enduring Jewish value, as is living in a loving and committed relationship.
Our tradition understands such a partnership contracted between two Jews as kiddushin. What are the salient and defining values of this institution? We hold that they include three essential commitments:
- The commitment of two Jews to establish a Jewish home together.
- Their commitment to support and nurture one another physically, financially, emotionally, psychologically, and spiritually.
- Their commitment, should their union be blessed with children, to raise those children together as Jews.
The union of a same-sex Jewish couple, no less than that of an opposite-sex couple, can be defined by these commitments. It therefore qualifies, in our view, as kiddushin. For this reason, we are not persuaded by the suggestion raised by some that same-sex marriages be designed by a different term. On the contrary: kiddushin is the term that designates Jewish marriage. Same-sex Jewish couples who forge a loving and devoted union and who commit themselves to establishing a Jewish home and raising a Jewish family should not be denied the rites that define marital status in the Jewish tradition. In all that we do and consider, we must operate by the halakhic principle Gadol k’vod ha-briot she-docheh lo ta’aseh she-ba-torah (“So great is the requirement of human dignity that it supersedes a negative commandment of Torah”). Human dignity requires that same-sex couples be afforded the same opportunities as heterosexual couples to sanctify their marriages with kiddushin and the presence of their rabbi.
3. Kiddushin and Reform Judaism. The above, obviously, stands at odds with our traditional literature, which never applies the term kiddushin to same-sex unions. Yet it is quite consistent with our own Reform Jewish tradition, in which the understanding of kiddushin has long diverged from the way that institution was originally defined and structured in our sources.
In its most original formulation, kiddushin is non-egalitarian and follows the model of kinyan (acquisition): the man actively acquires the woman whose role in the exchange is passive except so far as she accepts the token of her acquisition. The man presents the object to the woman and she accepts it, her acceptance serving to bind her in marriage to him. Reform Judaism, by contrast, has always defined kiddushin as an egalitarian and therefore mutual institution. The Philadelphia Conference of 1869 resolved that: “The bride shall no longer occupy a passive position in the marriage contract, but a reciprocal avowal should be made by the bridegroom and the bride, by pronouncing the same formula, accompanied by an exchange of rings.” As Rabbi Moses Mielziner explains: “By this innovation it is intended to express the full equality of woman with man in the conjugal relation and in moral life, so that, just as he consecrates her to be his alone, so she consecrates him to be hers alone, in person and affection.” Accordingly, it has long been the practice in Reform Jewish weddings for two rings to be exchanged and for both of the couple to recite the traditional marriage formula harei atah/at m’kudeshet/m’kudash li. In addition, we should consider developments in the ketubah, the legal document that traditionally served as a woman’s lien on the man’s property or estate upon dissolution of the marriage through divorce or death. Like the language of the ceremony and the exchange of rings, this aspect of Jewish marriage has long been equalized in Reform practice, which favors the use of modern, liberal ketubot texts that express equality in the relationship.
These aspects of Reform Jewish marriage underscore a critical point. We are not now suddenly “changing” the traditional definition of kiddushin in order to accommodate same-sex marriage. Reform Judaism departed from that definition at least a century and a half ago when it restructured and reimagined kiddushin in accordance with our movement’s fundamental commitment to justice, equity, and egalitarianism. What has changed since 1869 – and 1990, and 1996 – is our recognition that same-sex unions, no less than opposite-sex unions, are a form of marriage. Given this recognition, it is clear to us that the same commitment to justice, equity, and egalitarianism applies in this case. Same-sex marriages therefore meet the long-standing Reform definition of kiddushin as a mutual and egalitarian marital covenant between two Jews.
3. Same-Sex Weddings in Jurisdictions That Do Not Yet Recognize Such Unions as Legal Marriage. It is CCAR policy that Reform rabbis should not officiate at weddings in the absence of a valid civil marriage license. This does not prevent a rabbi from officiating at a ceremony of union for a same-sex couple in a state that does not recognize such unions as legal marriage, provided that the rabbi make clear to the couple that the ceremony as a matter of law is not a legally-binding marriage. Still, the situation is ripe for confusion. The current state of civil law in the United States is similarly confusing. Since June 26, 2013, when the Supreme Court struck down DOMA (the “Defense of Marriage Act”), same-sex couples who marry in states that legally recognize and register same-sex marriages are guaranteed equal protection under the law with respect to federal marriage benefits, including Social Security survivors’ benefits, insurance benefits, immigration, and tax filing. These protections are of great importance and value. However, there are important rights and protections not assured by the Federal Government in the realms of inheritance, medical care, and children. While couples who marry in states that recognize same-sex marriage enjoy these protections, couples in states that do not recognize same-sex marriage do not.
In response to this situation, we strongly encourage Reform rabbis who live in such states to advise same-sex couples who seek a wedding to contract a civil marriage, prior to the chupah, in a jurisdiction that recognizes the legality of same-sex marriage. This will remove any objection that the rabbi is officiating at a wedding for a couple that lacks a valid civil marriage license. It will also insure that the couple will be entitled to federal benefits even should they choose to live in a state that does not recognize same-sex marriage. We also encourage Reform rabbis who officiate at same-sex marriages in states that do not provide for civil same-sex marriage to advise same-sex couples to seek legal advice and services in order to set in place legal mechanisms including estate planning, durable power of attorney, health care proxy, wills, and anything else required to protect the couple, as well as children the couple has or plans to have.
1. Since 2000, Reform rabbis in North America have officiated with the full support of the CCAR at the marriage ceremonies of Jews of the same sex.
2. We now affirm that, in light of the underlying purpose and values of Jewish marriage, as well as of our historic Reform Jewish understanding of the concept of kiddushin, Reform rabbis may consider these same-sex marriages to be kiddushin, utilizing in the marriage ceremony the Jewish forms and rites that are most appropriate to the Jewish partners involved.
3. Couples who marry in jurisdictions that grant legal recognition to same-sex marriages are entitled to, and protected by, both federal and state laws. In jurisdictions that do not grant such recognition, rabbis should advise couples who request their officiation to first seek civil marriage in a state that recognizes same-sex marriage
- “Rights of Homosexuals,” http://ccarnet.org/rabbis-speak/resolutions/1977/homosexuals-rights-of-1977.
- “On Gay and Lesbian Marriage,” http://ccarnet.org/rabbis-speak/resolutions/1996/on-gay-and-lesbian-marriage-1996.
- “Report of the Ad Hoc Committee on Homosexuality and the Rabbinate, http://ccarnet.org/rabbis-speak/resolutions/1990/homosexuality-and-the-rabbinate-1990. A minority dissented, holding that “the relationship, not the gender, should determine its Jewish value – Kiddushin.”
- See note 2, above: “BE IT FURTHER RESOLVED, that this is a matter of civil law, and is separate from the question of rabbinic officiation at such marriages.”
- Reform Responsa for the Twenty-First Century (New York: CCAR, 2010), vol. 1, no. 5756.8, “On Homosexual Marriage,” pp. 213-256, http://ccarnet.org/responsa/nyp-no-5756-8.
- Note the statement at ibid., p. 227: “We would point out that no resolution of the CCAR has expressed its approval of [rabbinical officiation at same-sex marital unions].” That state of affairs, a critical element in the reasoning behind the responsum’s majority opinion, changed in 2000; see below.
- “Resolution on Same Gender Officiation,” http://www.ccarnet.org/rabbis-speak/resolutions/all/same-gender-officiation.
- It hardly needs to be stated – although for purposes of clarity we shall state it anyway – that a policy position adopted by the Central Conference of American Rabbis in convention assembled is the official policy of the Conference and, therefore, of all institutional elements of the Conference. While individual Reform rabbis may dissent from th Conference’s official policy as a matter of rabbinical autonomy, the policy is binding upon the Conference as an institutional entity. This includes all constituent committees of the Conference, which exist and operate under the institutional authority of the CCAR.
- CCAR Responsum no. 5756.8 (see note 5, above) at pp. 238-239.
- Such an act was considered licentious behavior (B. Kiddushin 12b and Rashi ad loc., s.v. d’rav mangid). While a marriage contracted in this way would retain its legal validity, the husband was subject to severe punishment by the Jewish courts; Yad, Ishut 3:21 and Shulchan Aruch Even Ha’ezer 26:4.
- Although our translation “betrothal” follows general practice, we should note that while the word “betrothal” in our society usually signifies a promise to marry (“engagement”), kiddushin bears a much firmer legal status. Kiddushin creates the marital bond, which can be severed only through divorce or the death of either spouse. Although the marriage exists at Jewish law from the moment of kiddushin, however, it is not consummated until the time of nisu’in (or chupah), a separate legal ritual that symbolizes the bride and groom establishing a common household. It has long been customary to combine these two rituals into one ceremony.
- See B. Y’vamot 62b on Genesis 2:18: marriage is a social ideal, a source of goodness to those involved quite apart from its procreative function.
- See the preceding note. We call these “values” because, as a matter of technical law, the absence of these elements from the marriage of two Jews does not technically render their union invalid. But they are central to our conception of what the rabbi, by virtue of his or her officiation at the act of kiddushin, ought to be affirming.
- B.Berakhot 19b; B.Shabbat 81b and 94b; B.Eruvin 41b; B.Megillah 3b; and B.Menachot 37b. There is a long dispute in the halakhic tradition over the precise scope of this principle: just which “negative commandment of the Torah” is superseded by the principle of human dignity? We need not enter that discussion here. We need say only that the concern for human dignity must guide our actions when no substantive considerations would demand another response.
- See the last sentence of the section of the 1996 CCAR responsum quoted above at note 9: we are speaking of marriage and kiddushin “as we Reform Jews understand those terms”.
- A woman’s consent is required for marriage; B. Kiddushin 2b; Yad, ishut 3:1; Shulchan Aruch Even Ha’ezer 42:1.
- Rabbi Gail Labovitz describes kiddushin as a fundamentally hierarchical institution in which a man acquires a woman; see her Marriage and Metaphor: Constructions of Gender in Rabbinic Literature (Lanham, MD: Lexington Books, 2009), chapter 2. (For a very different view of kiddushin and of the Rabbinic conception of Jewish marriage see Judith Hauptman, Rereading the Rabbis: A Woman’s Voice [Boulder, CO: Westview Press, 1988], pp. 60-76. An application of that view to Reform Jewish marriage can be found in Mark Washofsky, Jewish Living: A Guide to Contemporary Reform Practice [New York: URJ Press, 2010, pp. 152-154 and 406-407.) Traditionally, the woman’s acceptance of the ring or coin sanctifies or designates her exclusively for the husband, but since Judaism developed in an ancient and polygamous society, he is not sanctified or designated exclusively for her. Much of the subsequent history of Jewish marriage law has been taken up with efforts to rectify this inequity. While that history is much too complex to be summarized here, we would mention as but one example the edict (gezeirah) of Rabbenu Gershom b. Y’hudah (11th century) banning polygamy and the divorce of a wife without her consent. This edict became widely accepted among Ashkenazic Jews. Other communities, meanwhile adopted their own solutions to these problems.
- Protokolle der Rabbiner-Conferenz, abgehalten zu Philadelphia vom 3.bis zum 6. November 1869 (New York, 1870), p. 39. The translation appears in Moses Mielziner, The Jewish Law of Marriage and Divorce in Ancient and Modern Times (Cincinnati: Bloch, 1901), p. 59. The double-ring ceremony, understood as an expression of the egalitarian conception of Jewish marriage, was officially instituted in German Reform by the Augsburg Synod of 1871; see W. Gunther Plaut, The Rise of Reform Judaism (New York: World Union for Progressive Judaism, 1963), pp. 217ff.
- Mielziner, loc. cit.
- The reciprocal formula spoken by the bride – הרי אתה מקודש לי, in either Hebrew or English – has been in use at least as far back as the Minister’s Handbook (New York, CCAR, 1917), pp. 37-38, and has appeared in every subsequent edition of the CCAR Rabbi’s Manual.
- See Rabbi’s Manual (New York: CCAR, 1987), p. 237, and Washofsky (note 17, above), pp. 164-165 and 411.
- Rabbi’s Manual, p. 246; R. Solomon B. Freehof, Contemporary Reform Responsa (Cincinnati: Hebrew Union College Press, 1974), no. 21.
- Reform Responsa for the Twenty-First Century, “Jewish Wedding Ceremony in the Absence of a Civil Marriage License,” no. 5764.4, pp. 261-268, http://ccarnet.org/responsa/nyp-no-5764-4.
- United States v. Windsor, 570 U.S. ____ (2013) (Docket No. 12-307), http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf, accessed November 5, 2013.