CCAR RESPONSA COMMITTEE

5764.4

Commitment Ceremonies for Heterosexual Couples; Jewish Wedding Ceremony in the Absence of a Civil Marriage License

She’elah.

A retired heterosexual couple has approached me to perform a commitment ceremony for them in lieu of a wedding, since they wish to avoid losing social security benefits but still want to have a ceremony affirming their mutual love and commitment. They wish for their relationship to be validated in the eyes of our faith and also in the eyes of their family. They have cited the gay/lesbian commitment ceremonies as precedent. Should such a ceremony be conducted? (Rabbi Michael Sternfeld, Chicago, IL)

Teshuvah.

Our she’elah raises the issue of a commitment ceremony, in lieu of a wedding, for a heterosexual couple. In this responsum, we wish to deal as well with the question of whether a Jewish wedding should be provided for a couple who, though eligible to marry under Jewish law and tradition, do not wish to obtain a marriage license from the government.[1] While these situations differ, they both involve a desire on the part of the couple to achieve Jewish religious recognition for their union and simultaneously to avoid becoming husband and wife in the eyes of civil law.

1. Jewish Wedding Ceremony in the Absence of a Civil Marriage License. We begin with the second question because it affords us a basis from which to analyze the first. Rabbi Solomon B. Freehof, in a teshuvah published in 1974,[2] rules that a rabbi[3] should not officiate at a wedding when the couple, seeking “to avoid reduction in the total of their Social Security,” do not take out a marriage license. He bases this decision upon the Talmudic principle dina demalkhuta dina, “the law of the state is valid in Jewish law.”[4] That is, Jewish law holds as binding upon Jews all laws enacted by the civil state that fall within its legitimate domain. By the government’s “legitimate domain,” as Rabbi Freehof reminds us, the tradition means “civil matters, taxes, business law, etc., but not… ritual matters.”[5] Jewish law would never countenance an effort by the civil government to restrict our freedom of worship or ritual observance, and since “marriage and divorce are deemed spiritual matters in which the law of the state does not apply,”[6] we would properly resist any effort by the government to interfere in these areas.[7] On the other hand, “if the state imposes a tax on the entire community, it is a valid mandate in Jewish law that the tax must be paid.” A rabbi should not officiate at such a wedding, not because the state has the right to define rabbinical prerogatives, but because “Social Security legislation is a civil matter…valid in Jewish law.” Therefore, even from the perspective of Jewish tradition, “the Rabbi may not assist in contravening the laws of Social Security.”

Rabbi Freehof also notes that it may well be a violation of state law for a clergyperson to officiate at a wedding where no license has been issued.[8] This legal prohibition is also valid under the principle dina demalkhuta dina, for state has a legitimate interest in regulating the monetary and familial aspects of marriage: ownership of property, issues of inheritance, child custody and the like. Therefore, the state may legitimately require a couple to register their marriage with the proper authorities, and we rabbis would be expected under Jewish law to honor this requirement.

This Committee affirms the decision of Rabbi Freehof, which is also endorsed by the Central Conference of American Rabbis: we do not officiate at weddings in the absence of a valid marriage license.[9] We would simply add that the principle dina demalkhuta dina has been justified in halakhic tradition on the theory that the residents of the community “willingly accept the king’s laws and statutes upon themselves.”[10] Other justifying theories are offered as well,[11] but we find this one, which emphasizes the will of the people as the basis of the law’s validity, to be the most congenial to our own democratic temperament. Indeed, as citizens of the state in which we reside, we are the malkhut, the state itself; its laws are our laws, which we as citizens have enacted by taking part in its democratic processes and which we have stipulated in advance to accept as valid and binding. Since we have participated in the establishment of Social Security legislation as well as the rules that enable the state to regulate the monetary aspects of marriage, it would be hypocritical for us to aid individuals or couples in the contravention of these laws.

Against this conclusion, it might be argued that when we rabbis officiate at weddings we do so primarily as representatives of the Jewish tradition and not as agents of the state. Thus, when a marriage license has not been issued, a rabbi might legitimately perform a wedding ceremony on the grounds that this is a purely “religious” ritual, so that the marriage might be valid in the eyes of Judaism even if not recognized by civil law. We disagree, because the Jewish tradition that this rabbi represents does not make such a distinction between “religion” and “state.” In Judaism, the wedding is both a ritual and a legal ceremony, one that forges monetary bonds, as well as spiritual ones, between the couple.[12] These aspects of marriage are inseparable in our law; there is no such thing as a Jewish marriage that is valid “religiously” but not “legally,” that has spiritual but not material consequences. To suggest otherwise is to distort the essential content of Jewish marriage as well as to encourage couples to “marry” while evading the law.

2. Commitment Ceremonies for Heterosexual Couples. We can now turn to the present she’elah: granted that a rabbi should not perform a wedding that is not recognized by state law, may he or she arrange a “commitment ceremony” in its stead? Such a ceremony, though “affirming” a couple’s union, is emphatically not a wedding and therefore creates no marriage, either in Jewish or in civil law. Since the state, which would not recognize this union as a marriage, requires no license for it, no evasion of the law is involved. As our she’elah notes, rabbis may perform this non-marriage ritual for same-gender couples.[13] Why, then, should they deny it to heterosexuals?

Our answer is that the two situations are not analogous. Same-gender couples do not enjoy the legal right to marry in virtually any of the communities in which we live.[14] A commitment ceremony is their only Jewish recourse, the only ritual means available to them for affirming their union. Rabbis who perform commitment ceremonies urge the couples to take all legal steps available to them to demonstrate and enact their mutual social and legal obligations. In other words, these ceremonies are the closest possible existing equivalent to legal marriage for same-gender couples in most jurisdictions. A heterosexual couple, by contrast, need search for no “equivalent” to marriage, for marriage itself is the means by which, in our tradition, a couple establish their union and build a household together. Among all other human relationships, marriage is unique in that, through the wedding ceremony, a couple sanctify their bond by declaring it to be an exclusive and inviolable one, not open to other partners. It is for this reason that the ceremony of marriage is termed kidushin, a word that denotes holiness and consecration, separateness and exclusivity.[15] Similarly, marriage is a union that aspires to stability and permanence. Through the ceremony of marriage, the couple commit themselves to one another, legally and financially as well as spiritually and emotionally, pledging to maintain the household they form in the face of all but the most insurmountable difficulties.

We presume that the couple in question wish to define their own relationship in these terms. They see themselves, in other words, as husband and wife, as a couple in the fullest, most permanent sense of that word. Yet while Judaism offers marriage as the means of establishing such a relationship, the couple have chosen to reject that option for themselves. We are not insensitive to the reason they cite for their decision. As we have written, financial duress ought not to prevent couples from fulfilling the mitzvah of marriage, and Judaism calls upon us, as individuals and as an organized community, to help remove the monetary obstacles in their path. As Jews have always done, we can offer financial assistance to couples in need.[16] If we regard the Social Security law to be unfair in its treatment of married couples, we can work to change the law. The fact remains, however, that though this couple seek to “validate” their relationship “in the eyes of our faith,” our faith offers no other ritual means than marriage for “validating” — i.e., sanctifying– a heterosexual relationship.[17]

We stress, again, that this couple seek to affirm a relationship that is tantamount to marriage. By arranging a “commitment ceremony” instead of a wedding, they wish to declare themselves married in the eyes of everyone but the state. For this reason, their device is in substance an attempt to evade the law. It also runs counter to our own Jewish tradition, which does not recognize a “marriage” that is spiritually but not legally binding. The rabbi should not arrange a commitment ceremony for them.

NOTES

1. As we will explain below, the “civil government” in question is the one in power today in the countries where we reside: a regime elected democratically and characterized by the rule of law. It is in such countries that the principle dina d’malkhuta dina has force.
2. Contemporary Reform Responsa (CTRR), no. 21.
3. Today, of course, this formulation would include the cantor and, for that matter, any m’sader kidushin, a “celebrant” of a Jewish wedding. According to Jewish law, the presence of a rabbi or other communal official is not a requirement for a valid marriage. On a minimal basis, explains Shulchan Arukh Even Ha`ezer 27:1, all that is required is the performance of an act of marriage (kidushin)–for example, the groom gives the bride an object of monetary value under the clear mutual understanding that this action is to effect a betrothal–in the presence of two witnesses. The marriage is valid without clerical sanction. Still, since medieval times it has been the universal Jewish custom to prohibit weddings unless they have been approved in advance by the local rabbi, most often with the rabbi (or a designated representative) serving as m’sader kidushin. For one example, see Rambam, ed. Blau, no. 348 (= ed. Freiman, no. 156), where Maimonides describes the takanah of 1187 in Egypt requiring that the local rabbi participate in all weddings. For a number of similar takanot spanning all the major centers of Jewish civilization, see Avraham Freiman, Seder kidushin v’nisu’in (Jerusalem: Mosad Harav Kook, 1964). This practice has usually been justified on the grounds that the legal and halakhic issues surrounding marriage are sufficiently complicated to warrant the supervision of a recognized expert in Jewish law. The usual citation is B. Kidushin 6a: “anyone who is not an expert in divorce and marriage law should not deal with these matters.” The Shulchan Arukh cites this statement as authoritative halakhah (EHE 49:3). The Talmudic context of this statement does not mention the issue of rabbinic supervision of or participation in the wedding. Rashi (s.v. lo y’hei) interprets it to mean that a non-expert should not presume to issue authoritative halakhic decisions (hora’ah) in these areas of the law. This says nothing about whether the m’sader must be an “expert.” The Turei Zahav commentary to Shulchan Arukh 49, no. 1, makes this point explicit: the Talmudic passage does not refer to the wedding ceremony itself and therefore does not mean that a rabbi or scholar must preside over it. On the other hand, R. Ya`akov Reischer (18^th-cent. Germany) reads the passage as well as Rashi’s interpretation of it to the opposite effect: the wedding itself may be conducted only by a competent scholar, either the local rabbi (mara d’atra) or his designate (Resp. Sh’vut Ya`akov 3:121).
4. The principle, attributed to the amora Shmuel, is found in Gitin 10b and parallels.
5. All citations of Rabbi Freehof in this paragraph are in CTRR loc. cit., at pp. 101-103. For a comprehensive analysis of the nature and limits of this legal principle, see Shmuel Shilo, Dina demalkhuta dina (Jerusalem: D’fus Akademi Y’rushalim, 1975).
6. With these words, Rabbi Freehof concedes the weakness of one of the major theories that Reform Jews have traditionally advanced in favor of the abandonment of Jewish divorce procedures (gitin and gerushin) and the acceptance of civil divorce as sufficient for remarriage. That theory, advanced during the nineteenth century by R. Samuel Holdheim in Germany and by R. David Einhorn in the United States, holds that divorce is a matter of monetary law (dinei mamonot) falling legitimately under the purview of civil authority according to the principle of dina d’malkhuta dina. This Committee has concurred with Rabbi Freehof; see our critique of the Holdheim/Einhorn theory in our responsum “Divorce of an Incapacitated Spouse,” no. 5756.15, https://www.ccarnet.org/ccar-responsa/nyp-no-5756-15/. There, we write: “[i]n recognition of these facts our movement has created a ‘Ritual of Release’ which, though it does not take the place of the traditional get, serves as ‘a form of religious divorce’ for couples who desire it and ‘may eventually lead us to reopen the matter of a Reform get’” (footnotes omitted).
7. For example, the civil government may not tell rabbis that they must officiate at a mixed marriage or at a marriage between two non-Jews. Similarly, the state may not determine the structure and content of a Jewish wedding service.
8. Rabbi Freehof, cit. at pp. 100-101, discusses the fact that the rules on this subject will vary among local jurisdictions.
9. Rabbi’s Manual (New York: CCAR, 1988), 246.
10. Rashbam, Bava Batra 54b, s.v. veha’amar shmu’el dina demalkhuta dina. The verb used by Rashbam (R. Shmuel b. Meir, 12^th-cent. France) is m’kablim: that is, the people accept the king’s laws as valid. A similar verb is used by Rambam (Yad, G’zeilah 5:18): hiskimu, that is, the people ratify the king and his laws. Rambam uses this same verb in the Introduction to his Mishneh Torah to describe Israel’s willing acceptance of the Babylonian Talmud as the standard of halakhah.
11. For the other theories, see our responsum no. 5757.1, “Loyalty to One’s Company Versus Love for Israel” (https://www.ccarnet.org/ccar-responsa/nyp-no-5757-1/), at notes 7-12.
12. See Yad, Ishut 12:1ff.: the wedding ceremony is the formation of a contract by which the husband and wife obligate themselves to a series of financial rights and responsibilities. While we have yielded to the state the power to regulate and to enforce these obligations, we are not neutral towards them. There is no such thing as a Jewish marriage without concurrent monetary rights and duties.
13. The CCAR has resolved that “the relationship of a Jewish, same gender couple is worthy of affirmation through appropriate Jewish ritual”; see “Resolution on Same Gender Officiation” at http://www.ccarnet.org/cgi‑bin/resodisp.pl?file=gender&year=2000 . The resolution adds, importantly, that “we recognize the diversity of opinions within our ranks on this issue. We support the decision of those who choose to officiate at rituals of union for same-gender couples, and we support the decision of those who do not.” For a fuller argument in favor of rabbinical officiation see our responsum no. 5774.4, “Same-Sex Marriage as Kiddushin,” https://www.ccarnet.org/ccar-responsa/same-sex-marriage-kiddushin/.
14. At this writing, the legal situation is in flux in a number of jurisdictions.
15. It is not clear why the Rabbinic Jewish tradition chose the word kidushin (from the Hebrew root k-d-sh, “holy; to sanctify”) to denote marriage. Biblical Hebrew, as the Talmud notes ( Kidushin 2b), does not use that term. The Talmud suggests that the Rabbis sought to make a point about the ritual nature of the marital union: by “consecrating” his wife, the husband “forbids her to all other as though she belonged to the Temple (hekdesh).” In our Reform Jewish wedding ceremonies, the bride “consecrates” the groom as well, testifying to our understanding that marriage is a mutually exclusive relationship. That which is holy or sacred–kadosh–is separate and distinct from all others. See, for example, Leviticus 19:2, “You shall be holy (k’doshim) because I, Adonai your God, am holy (kadosh),” and Rashi and Ramban ad loc.
16. On all of this, see our responsum “Marriage and Financial Distress,” Teshuvot for the Nineties, no. 5754.9, pp. 225-229, https://www.ccarnet.org/ccar-responsa/tfn-no-5754-9-225-229/). Providing financial assistance to couples wishing to marry is referred to by our tradition as the mitzvah of hakhnasat kalah .
17. See our responsum no. 5756.10, https://www.ccarnet.org/ccar-responsa/nyp-no-5756-10/. As discussed there, Jewish law once recognized–but has long since rejected–the institution of concubinage (the pilegesh) as a form of non-marital, long-term conjugal relationship.

If needed, please consult Abbreviations used in CCAR Responsa.