Marriage

NARR 343-344

CCAR RESPONSA

New American Reform Responsa

215. Marriage with a Unitarian Universalist

QUESTION: A young Jewish couple wishes to marry. The woman is of Jewish parentage and was raised as a Jew. She was married for twelve years to a non-Jew and has two children age seven and fourteen. For the past four years she has been affiliated with a Unitarian Universalist Fellowship and for eighteen months has been employed as their Director of Religious Education. She is active in this fellowship as are her children yet all of them consider themselves to be Jews and conduct some Jewish rituals in their household. The couple is also active in a Jewish congregation and they intend now to raise their children as Jews and send them to the Jewish Religious School. Is it within the framework of Reform Judaism for me to officiate at the wedding? (Rabbi Richard D. Agler, Boca Raton FL)ANSWER: The background and pattern of life of this young woman indicate doubt, searching, and a measure of confusion. Tradition would consider her a Jew, but an apostate. As the children have been enrolled in a “religious school” program of this fellowship, and as she has served as Director of “Religious Education”, this indicates more than a casual affiliation, but a well thought out religious response. You mentioned in your letter that the young couple has now decided that the children would attend the Jewish Religious School. This shows us the future path of the next generation and should be welcomed. However, the young woman’s continued service as Director of Religious Education of the Unitarian Universalist Fellowship would exclude her from the Jewish community. She has left us willingly, without duress, and so we must look upon her and others who have joined various Christian groups in the United States as willing, conscious converts and honor their new religious affiliation. Technically according to our tradition such individuals would continue to be considered as Jews by descent (W. Jacob Contemporary American Reform Responsa #66, 68), but we would not include them in our congregation. Although Unitarian Universalists are not in the same category as Messianic Jews who frequently misrepresent their true affiliation, the Unitarian movement also poses some danger to us. We should therefore not confuse our congregants by creating the impression that members of a Unitarian Universalists group may at the same time be members of our congregation. This is not a philosophical discussion group which provides intellectual stimulation, but a religious fellowship which seeks to continue its tradition into the next generation. The young lady has taken an initial step toward Judaism through the enrollment of her children in the synagogue school. That step should be honored and applauded. However, as long as she remains Director of Religious Education of the Unitarian Universalist Fellowship, a rabbi should not participate in her marriage. Perhaps she can be persuaded to give this up and to return fully to the Jewish community where her new husband and her children, by a former marriage are now affiliated.January 1989

If needed, please consult Abbreviations used in CCAR Responsa.

ARR 404-406

CCAR RESPONSA

American Reform Responsa

132. Jewish Marriage Without Children

(1979)QUESTION: Is it possible to have a valid Jewish marriage without children? Should a rabbi perform such a marriage when a couple specifically states that they plan to have no children? (Michael A. Robinson, Croton-on-Hudson, New York)ANSWER: First, we should address the validity of a marriage without children. There is no doubt that procreation, companionship, joy, unity of the family, etc., are basic elements of marriage as seen by the Jewish tradition (Ket. 8a). Procreation was considered essential as already stated by the Mishna: “A man may not desist from the duty of procreation unless he already has children” (Yev. 6.6). The Gemara to this concluded that a man may marry a barren woman if he has fulfilled this mitzvah of procreation, as in any case he should not remain unmarried (Yev. 61b). If the parties marry beyond the years when child-bearing is possible, or if one of them is sterile, the same wedding blessings are, nevertheless, recited (Abudarham, Birchot Erusin, 98a). There was a difference between the schools of Hillel and Shammai about what was required to fulfill the mitzvah of procreation. The tradition followed Hillel, who minimally required a son and daughter, yet the codes all emphasize the need to produce children beyond that number (Tos. Yev. 8; Yad, Hil. Ishut, 15.6; Shulchan Aruch, Even Ha-ezer 1.5). Tradition emphasized the need for a greater number of children as the fulfillment of two Biblical verses: Is. 45:18, “He created the world for habitation (lashevet),” and Eccl. 11:6, the obligation to sow seed in the evening (la-erev) as well as in the morning. In other words, one should constantly expand the Jewish population (Yev. 62a,b). This was also in keeping with the thought that before the Messiah could come, all the souls waiting for bodies will have to be placed into the world (ibid.; Nidda 13b). During our entire history, persecution and natural disaster have decimated our people, and so repopulation has always been emphasized. Lack of children was considered grounds for divorce after a decade of childless marriage, but Isserles indicated that nowadays we do not force the issue and permit the couple to remain together (Isserles to Shulchan Aruch, Even Ha-ezer 1.3 and 8; also Isserles to 154.10). This was particularly true if the man had already had children by a previous marriage. All of this makes it clear that children were considered essential to a marriage, and it was considered desirable to have a large number of children, but a marriage without them was also condoned (Abraham di Boton, Lechem Mishneh to Yad, Hil. Ishut 4.10; Yair Hayyim Bacharach, Chavat Ya-ir, #221). The strictest interpretation of the traditional Halacha which makes a distinction between the obligations of men and women (a distinction not accepted by Reform Jews) would allow a woman to marry a sterile male, since the obligation of procreation was not incumbent upon her. When the husband or wife was sterile and it was not possible to have children, the marriage was always considered valid (bedi-avad); i.e., since it had been entered in good faith, it need not be terminated, as mentioned earlier. This was stressed by Maimonides, who considered such a marriage valid under any circumstances (Yad, Hil. Ishut 4.10), whether the individual was born sterile or was sterilized later. Later authorities went somewhat further, and Yair Hayyim Bacharach stated that as long as the prospective wife realized that her prospective husband was infertile, though sexually potent, and she had agreed to the marriage, it was valid and acceptable (Chavat Ya-ir, #221). Isaac b. Sheshet (Responsa, #15) permitted a couple who knew that they would not have children to become married. As long as both were fully aware of the situation, it was permissible, even lechatechila. In sum, the traditional attitude was as follows: our tradition encourages marriage for the purpose of procreation and would strongly urge all couples to have children. However, if they enter the marriage fully aware of the refusal of one or the other to have children–either because of a physical defect or because of an attitude–the marriage can be considered valid, either lechatechila or bedi-avad. Nothing should prevent a rabbi from conducting such a marriage; although some rabbis would refuse to officiate. In light of the Holocaust and the current diminution of the world Jewish population, it is incumbent upon each of us to urge Jewish couples to have two or more children. Although young people may marry reluctantly and late, the marriage at least represents a step in the direction of children. In Jewish law, the marriage is valid, yet given the Reform emphasis on the underlying spirit of the law as a guide to modern practice, marriage without children is very distant from the Jewish ideal of marriage. The letter may permit it, but we must encourage every couple to have at least two children.Walter Jacob, ChairmanLeonard S. KravitzW. Gunther PlautHarry A. RothRav A. SoloffBernard ZlotowitzSee also:S.B. Freehof, “A Wife Who Cannot Bear Children,” Recent Reform Responsa, pp. 155ff.

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 338-341

CCAR RESPONSA

New American Reform Responsa

213. Second Marriage Ceremony

QUESTION: I was recently asked to officiate at the marriage ceremony of congregants who had already been married to each other for more than twenty years. He is Jewish by birth, she converted to Judaism, but without tevilah. The idea of the second marriage emerged because the woman in question has undergone a more traditional conversion with tevilah under the auspices of a liberal Orthodox rabbi. Should there be a second wedding ceremony in accordance with the wishes of this woman? (Rabbi Daniel S. Alexander, Charlottesville VA)ANSWER: This question demands that we look at the nature of our conversion ceremony and at the implications of a repetition of the berakhot for our marriage ceremonies. Conversion within Reform Judaism has placed less emphasis on ritual and more on a course of study required of the converts. Through our courses we familiarize prospective converts with Jewish life, liturgy, history, literature, Hebrew, and the mitzvot which are incumbent upon us as Reform Jews. The course of study has changed over the generations, but not significantly as we have sought to emphasize both ideas and practice. Ultimately, of course, it is the commitment of the respective convert which is decisive. The ritual for conversion has changed through the years. As a general practice both miqveh and circumcision were not customary in the United States by the latter part of the last century. Sometime colleagues, nevertheless, continued to require both, and neither were ever officially abolished; they simply fell into disuse. At the present time judging by congregations with which I am familiar in the United States and in Canada, tevilah either in a miqveh or in an appropriate body of water is widely practiced and in many communities it has become mandatory for conversion. We would, however, not consider a conversion conducted in the past or present without tevilah or tipat dam as invalid. That is true even in communities where these rituals have been mandated. Anyone coming from another community would, bediavad, be considered as having a valid conversion. For that matter this kind of question should never be asked by any of our colleagues. Such inquiry would be dangerous not only for us, but for everyone within the Jewish community for there are always individuals who consider themselves “more pious.” Even among the Orthodox, the conversions of a whole group of traditional colleagues have been rejected by other Orthodox rabbis. Our approach would state that immersion in a miqveh has gained new meaning for us and therefore many among us have re-adopted this practice, however, we honor the mood of a former generation which understood it differently. This line of reasoning would preclude a second wedding ceremony as that would be tantamount to stating that the former conversion was invalid, something which we certainly do not wish to do. We should also remember the nature of the Jewish wedding. There are three ways of effecting a marriage: (a) The most common form featured a document witnessed by two competent individuals and handed by the groom to the bride (Kid 9a; Shulhan Arukh Even Haezer 32.1-4) . This has remained the essential covenant of the modern wedding. The document is the modern ketubah signed by two witnesses. (b) In addition, it was possible to effect a marriage through the transfer of an item of value (kesef) in the presence of two competent witnesses. This remains as part of the modern wedding in the form of presenting a ring with the formula “harei at mequdeshet…” (Kid 2a, b; Shulhan Arukh Even Haezer 27.1). (c) Finally, marriage can be effected through intercourse (biah) preceded by a statement indicating the wish to take this woman as wife in the presence of two witnesses who saw the couple leave for a private place (Kid 9b; Shulhan Arukh Even Haezer 33.1). The last method was severely frowned upon by the rabbis, but, bediavad, it was valid. Marriage simply through intercourse with proper intent would be akin to “common law” marriage. Even if we discounted the first two of the three above it is clear that this couple intended to be married and their intention has been witnessed by the community, and so the marriage would be recognized on these grounds alone. This would present an ancillary reason for not having a second wedding ceremony, however, the primary reason remains that of not invalidating the Reform conversion which occurred some years ago. The wishes of the couple may, perhaps, be accommodated in a different fashion through a ceremony of rededication which often nowadays accompanies an important wedding anniversary. There is no Jewish tradition for such ceremonies, but neither is there anything which would prohibit our going in this direction. We should encourage this as nowadays family life is frequently in jeopardy. Whatever we can do to strengthen family ties and to bring successful marriages to the attention of our people is welcome. A simple ceremony without the original berakhot would be appropriate and would fulfill the wishes of the couple without creating the problems mentioned above.February 1990

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5756.14

CCAR RESPONSA

A Non-Traditional Marriage

5756.14

She’elah

I have been asked to officiate at the wedding of a couple who, while living in the same city, plan to live in separate domiciles after the wedding. This is due to the prospective bride’s desire to live “in her own space” and to the couple’s feeling that such an arrangement will, in any case, allow them to avoid many of the petty squabbles that so often disrupt marital relationships. They are, to the best of my knowledge, sexually intimate with each other, and they have no plans to have children. They are not committed to living separately permanently; however, they also have no intention or goal at present of moving into the same home. May a rabbi, under these circumstances, officiate at the wedding? (Rabbi Peter B. Schaktman, New York)

Teshuvah

There is no question that this marriage, if entered into, would be valid under Jewish law. The halakhah does not require that the couple live under the same roof in order for their relationship to be a legally binding one. All that is necessary in this regard is that the couple be halakhicly capable of contracting a valid marriage and that the ritual which establishes the marital bond (ma`aseh kiddushin) be conducted according to proper form. To be “capable” of Jewish marriage, the couple must both be Jewish[1] adults[2] of sound mind[3] who are not forbidden to each other as arayot, that is, the prohibited sexual unions of Leviticus 18.[4] The “proper form” of kiddushin[5] requires that in the presence of two witnesses,[6] 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 which clearly manifests his intent, that he wishes her to he his wife.[7] If she accepts the ring or object in a manner which indicates her freely-given consent to the marriage,[8] the couple are betrothed, though the marriage process is not completed until the ceremony of chupah or nisu’in.[9] One might argue that although their kiddushin may be valid, the couple’s decision to live separately negates the very concept of nisu’in. This is based upon the definition of chupah as the act by which the groom brings his bride into his home and spends time alone with her there, “setting her apart as his wife.”[10] We of course would interpret “his home” to be “their home,” but the point is the same: so long as there exists no identifiable marital home for the couple, no nisu’in has taken place.[11] The problem here is that the tradition knows of other definitions of chupah, some of which do not require that the bride enter the groom’s home at all. Indeed, one of these alternative definitions is our own custom of setting up a bridal canopy as a chupah.[12] Thus, it is quite possible that this couple are validly “married” as well as “betrothed,” even though they have not established and do not intend to establish a common marital home.[13] The question our sho’el poses, however, is one of lekhatchilah, not bedi`avad. It does not concern the validity of the proposed marriage but rather its desirability. He asks whether a rabbi should refuse to officiate at a wedding ceremony when the marital arrangement contemplated by the couple runs counter to the ideal of marriage as put forth by Jewish tradition. Their proposal to live separately, each dwelling in his or her private “space,” and to refrain from having children differs markedly from that ideal. We would not want their particular version of marriage to become a model for others to imitate, and one might argue that a rabbi’s officiation at their wedding would suggest, however inaccurately, that Judaism looks with favor upon the choices they have made. We might add that, as a matter of general principle, rabbis do have discretion in these issues. Rabbis are not mere dispensers of religious services; they are teachers of Torah and interpreters of Jewish tradition. Their function in the community is to draw the attention of their people to a perception of the ideal, whether in thought or in practice. As such, there may be times when a rabbi will find it necessary to refuse a request for rabbinic service when, in his or her considered judgment, to accede to that request would violate either the rabbi’s conscience or understanding of Jewish religious propriety. It is entirely proper for rabbis to say “no” under such circumstances, and we vigorously support their right to do so. We are dealing, however, with a particular case rather than with a general principle. And in this particular case, we do not believe that the rabbi should refuse to officiate at the wedding. It is a long-standing rabbinic practice to show tolerance toward “unusual” marital relationships, even those which may transgress the dictates of halakhah. A clear expression of this position is a responsum authored by R. Yitzchak b. Sheshet Perfet (Rivash), who flourished in Spain and Algeria during the late-14th and early-15th centuries. Responding to a she’elah from the communal leadership of Tunis,[14] he offers his opinion concerning the prospective marriage between a young man and a ninety-year-old woman. The man, who according to the Tunisian authorities was interested primarily in the woman’s wealth, had yet to fulfill his Toraitic requirement to “be fruitful and multiply.” Rivash notes that such a man is forbidden by Talmudic law to marry a woman who was no longer capable of bearing children[15] and that the beit din may coerce him to divorce her.[16] He adds, however, that “I have never heard of a beit din which actually practices coercion in matters like this,” and he refuses to counsel coercion here. For if we wereto insist on the letter of the law (shurat hadin) in this case, we would have to demand divorces in every case where a less-than-ideal marriage has been contracted.[17] The courts would groan under the weight of litigation as the divorced women would sue for their ketubot. In fact, says Rivash, we do not intervene into these marriages, and so long as there is no Toraitic prohibition against them and so long as the couples are happy together, it is best to leave them alone. In the she’elah before him, he suggests that this woman desires a husband who can be a help and a comfort in old age; as this is not a disgraceful thing, we ought not to exercise coercion in an effort to separate them. Rivash’s ruling, in turn, is cited by R. Moshe Isserles as the common rabbinic practice.[18] Rivash’s words apply quite well to our she’elah. This couple wish to enter into a marriage which, though it does not correspond to our conception of the ideal, is indisputably valid under Jewish law.[19] We presume that the rabbi’s refusal to officiate, which constitutes the nearest thing to coercive power that rabbis in our community possess, would not cause them to reconsider their proposed living arrangements. If anything, the rabbi’s negative response would probably provoke them to ask why they are being singled out for tough treatment, why we rabbis do not refuse to solemnize all marriages which depart in some significant respect from the traditional Jewish ideal of home and family. There are today, as in the days of Rivash, any number of such marriages. Yet were our “rabbinic authorities” in the name of consistency to say “no” to all marriages where the couple maintain unusual living arrangements or do not intend to have children, there would be no end to the matter. By refraining from exercising a heavy hand, the rabbi does not thereby “endorse” the couple’s idea of marriage. Rather, as in Rivash’s time, we show tolerance toward their decision because we have no other decent and practical alternative. Yet alongside “tolerance” we would add “understanding.” Note Rivash’s words to his correspondents: although the marriage in question runs afoul of what we consider proper, the couple themselves desire it. A less-than-ideal union, in other words, must not be despised, for it can be a source of much that is good. The same is true in our case. We should not measure this couple’s union exclusively according to our ideal picture of marriage but against the standard of what they themselves wish, of what will bring them happiness and fulfillment. We presume, in the absence of any indication to the contrary, that they love each other and maintain an exclusive sexual relationship. Whatever our feelings concerning their marital arrangement, their intention to stand under the chupah testifies that they seek to affirm the permanence of their mutual commitment. This, without any question, is something we ought to encourage. The rabbi should therefore officiate at the ceremony. In doing so, he or she can maintain communication with the couple and perhaps offer them counseling. We certainly hope that they will some day reconsider their intention not to ring children into the world. And we suspect that their desire to be married nd yet avoid the “petty squabbles” of married life indicates that they have yet to confront with full maturity just what marriage, like any complex human relationship, is all about. There is much they need to consider about themselves and about each other. Like all of us, they have some growing and learning to do. And we believe that their rabbi can be of much help to them along their way. NOTES 1. M. Kiddushin 3:12. 2. Kiddushin performed by minors (i.e., under 13 years for males and under 12 years for females) is invalid. See BT Kiddushin 50b; Yad, Ishut 4:7; SA EHE 43:1. Different rules apply, of course, in the event that the parent “marries off” the child, and these rules vary for males and females. The present discussion, however, refers to a ma`aseh kiddushin performed by the couple themselves. 3. BT Yevamot 49b; Yad, Ishut 4:9; SA EHE 44:2. 4. M. Kiddushin 3:12. 5. M. Kiddushin 1:1 lists three methods of effecting the kinyan: kesef (money); shetar (written document); or bi’ah (sexual intercourse). While any of these methods is halakhicly valid, the use of kesef is the universal custom; Yad, Ishut 3:21. Out of moral concern, the early Babylonian amoraim forbade the use of bi’ah as a method of contracting marriage; BT Kiddushin 12b. 6. BT Kiddushin 65b-66a; Yad, Ishut 4:6. 7. BT Kiddushin 5b-6a; Yad, Ishut 3:1. The wife is the passive party here; she neither gives the money nor recites the formula. If, however, he gives the money and she recites the formula, some authorities suggest the marriage may be valid. See SA EHE 27:8. 8. Marriage, unlike any other kinyan, requires the clear consent of the “acquired” party, the wife; BT Kiddushin 2b and Bava Batra 48b; Yad, Ishut 4:1. 9. BT Kiddushin 10a; Yad, Ishut 10:1. See M. Ketubot 5:2: if nisu’in does not take place (that is, if the betrothed couple do not establish residence together), the husband must provide for the wife’s financial support. The marriage, therefore, remains valid, and many of the legal consequences stemming from marriage are in force. 10. Yad, Ishut 10:1; SA EHE 55:1. 11. See Chelkat Mechokek to SA loc. cit., no. 4: if the groom simply brings his wife to his home for yichud and then sends her back to her own (or her father’s) residence, “this is not nisu’in.” 12. See Isserles, EHE 55:1. Since some authorities define chupah as yichud (bride and groom being alone together), the yichud practiced at the conclusion of a wedding ceremony comes to insure that a valid chupah has taken place according to all opinions. 13. See Derishah to Tur EHE 61, no. 1, who suggests in the name of the Tur that chupah is any special place where the betrothed bride and groom spend time together, even if it is not “his home” and even if they are not totally isolated. 14. Resp. Rivash, no. 15. 15. BT Yevamot 61a; Yad, Isurey Bi’ah 21:26 and Ishut 15:16; SA EHE 1:3. 16. BT Ketubot 77a; Yad, Ishut 15:7; SA EHE 1:3. 17. Rivash mentions the many instances where a father agrees to the kiddushin of his minor daughter despite the Talmud’s warning to the contrary (BT Kiddushin 41a), as well as marriages between the daughters of kohanim or scholars and men ignorant of Torah. “The sages have averted their gaze from such couplings.” 18. Isserles, EHE 1:3. 19. It is this point, of course, which distinguishes this question from that of mixed marriage. The CCAR opposes rabbinic officiation at mixed marriages; see CCAR Yearbook 83 (1973), 97, and American Reform Responsa, no. 149.

If needed, please consult Abbreviations used in CCAR Responsa.

ARR 435-436

CCAR RESPONSA

American Reform Responsa

139. Marriage of a Cohen to a Divorcee Prohibited

(Vol. LIII, 1943, pp. 85-86)QUESTION: There is a problem which I am trying to help a young couple solve. The young woman is a divorcee; the boy is a Cohen. The man’s father objects to the marriage. I wonder: Is there any argument, based on Jewish law, which I can use with the father to keep him from making his son’s life miserable because of this marriage?ANSWER: The status of the modern Cohen has long been questioned by leading authorities in Jewish law. As early as the 14th century, Isaac ben Sheshet differentiated between the ancient Priest and the modern Cohen in no uncertain terms. He contended that the Cohen of his time, lacking any documentary evidence of his rightful claim to the priestly title, owed his special privileges and obligations, not to the express mandate of the law, but rather to the force of custom or common usage: “Kol sheken kohanim shebedorenu she-ein lahem ketav hayachas ela mipenei chezkatan nahagu hayom likro rishon baTorah. Kohen afilu am ha-arets lifnei chacham gadol shebeYisra-el” (Sefer Bar Sheshet, Responsum 94, Lemberg, 1805). Solomon Luria, the well-known 16th century authority, states it categorically that because of the frequent persecutions and expulsions of the Jews, the original priestly families, in most instances, failed to preserve the purity of their descent: “Uva-avonoteinu, merov arichut hagalut, gezerot vegerushim, nitbalbelu. Vehalevai shelo yehe nitbalbel zera kodesh bechol, aval zera kohanim uleviyim karov levadai shenitbalbelu, ve-im lo kulo, harov nitbalbel” (Yam Shel Shelomo, B.K., ch. 5, sec. 35). Likewise, the author of the Magen Avraham assumes the impurity of the modern Cohen’s descent when he seeks to account for the doubtful status accorded him in the law: “She-ein machazikin oto kechohen vadai dedilema nitchalela achat me-imotav” (Magen Avraham, Orach Chayim, Hil. Pesach, sec. 457). Jacob Emden was so impressed with the questionable character of the Cohen’s claims that, while hesitating to invoke the power of the law, he urged upon the Cohen the wisdom to refund the sum given him for the redemption of the first-born, and thus preserve his own moral integrity. Since he could not be sure of his priestly origin, Emden declared, the Cohen, in keeping the redemption fee, ran the risk of pocketing money to which he had no legal claim: “Nir-eh she-ein kohen yafeh lehafkia mamon bechezkato hageru-a. Vechim-at she-ani omer demidina tserichin lehachzir, ulefachot kol kohen yachush la-atsmo lifrosh misafek gadol shema eino kohen” (She-elot Ya-avets, part I, Responsum 155). When, therefore, Reform Judaism chose to ignore the nominal distinction between the ordinary Israelite and the Cohen–a distinction which has persisted to this very day–it did not so much depart from tradition as it did display the resolute will to surrender a notion the validity of which eminent Rabbinic authorities had repeatedly called in question.Israel Bettan

If needed, please consult Abbreviations used in CCAR Responsa.

ARR 440-441

CCAR RESPONSA

American Reform Responsa

144. Marriage of a Negro Man to a jewish Woman

(Vol. LXIV, 1954, pp. 77-79)QUESTION: My question has to do with the marriage of a Negro man to a Jewish woman. The man is a writer and a university graduate; the woman is still a student at the university. They are both over 21, and have been engaged for a year and a half. The man wishes to convert to Judaism. He attends services and writes reports on the Jewish books he reads. I have endeavored to discourage the union, but the couple remains steadfast in their emotions and convictions. The woman’s family is violently opposed to the marriage, and insists that I do not officiate. I am seeking a response from you as to whether Judaism sanctions such a union, and whether you feel that it is incumbent upon a rabbi to officiate.ANSWER: The Jewish attitude to intermarriage, all through history, has been conditioned by religious, in some instances even by political, but never by purely racial considerations. Even in the “racialism” of Ezra, the motivating force was religion, i.e., to safeguard the purity of the ancient faith. In the Rabbinic Halacha, conversion to Judaism gives the convert the status of a Jew, qualifying him for marriage with members of our religious group. Since the young man in question, though of Negro race, is desirous of adopting the religion of his Jewish fiancee, there is no valid reason, having its basis in Jewish law, why the couple shall not be united in matrimony by a rabbi. Obviously, the laws of the given State interpose no objection to mixed racial marriages, or the requisite license would not be issued. Empowered by the State to sanctify the union, and satisfied that the religious conditions have been met, the rabbi who solemnizes the marriage will be doing no more than duty requires of him. If, because of personal relations with the members of the young woman’s family, the rabbi concerned deems it inexpedient to act as the officiating minister, he can arrange with another rabbi in the area to perform the service.Israel Bettan

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ARR 412-415

CCAR RESPONSA

American Reform Responsa

136. Marriage on Shabbat or Yom Tov

(Vol. LXXXVII, 1977, pp. 97-99)QUESTION: May a marriage be performed on Shabbat or Yom Tov? (Referred to the Responsa Committee by the Central Conference of American Rabbis, June 1976)ANSWER: The question before us deals with the sanctity of Shabbat as understood and encouraged by the Reform Movement and the social and religious context of modern Jewish marriage. The Shulchan Aruch twice states that marriages are not to be performed on Shabbat and Yom Tov (Orach Chayim 339.4 and Even Ha-ezer 64.3). This prohibition is based on the Talmudic statement (Beitsa 36b) and the underlying mishna. These prohibitions mentioned in the several texts do not relate to Biblically prohibited work, but were issued by the Rabbi in an effort to protect the sanctity of the Shabbat*. This, however, engenders a contradiction between the Mishnaic prohibition and the weighty and esteemed mitzvah of marriage. The problem was resolved by stating that the prohibition referred only to an individual who had already been married and had children by that marriage. In that case, if he wished to be married a second time, the wedding could not be held on Shabbat. The brief Talmudic discussion led to a controversy between Rashi and Rabbenu Tam. Rashi would prohibit any marriage on Shabbat while Rabbenu Tam might be permissive; he, nevertheless, refrained from conducting such a marriage because of the injunction against writing on Shabbat, and he would permit it only in an emergency. The entire matter is also touched upon in the case of the High Priest, ministering on Yom Kippur, who must remarry immediately, even on Yom Kippur, if his first wife died, or else be unfit to continue as High Priest (Yoma 38b). There the Jerusalem Talmud asks how such a marriage could occur, since marriage involves an act of acquisition, which is prohibited on Shabbat. The specific case of the High Priest was solved by stating that Rabbinic prohibition had no validity with the High Priest serving in the Temple. The general prohibition against marriage on Yom Tov is discussed in Shulchan Aruch, O. Ch. 546.1. Our tradition has also dealt with the rare emergency in which a wedding has occurred or could occur on Shabbat, and with the pressing circumstances leading authorities to violate the Shabbat in order to conduct a marriage. Moses Isserles stated (note to Orach Chayim 339.4) that “it was permitted under certain conditions,” and gave as his authority Rabbenu Tam, who followed the Talmudic line of reasoning and stated (Sefer Hayashar 101.10): “I have permitted the marriage of a woman on Shabbat to a man who had no children from a previous marriage,” and then continued that he had also made exceptions for other unusual circumstances. Isserles himself dealt with such an exception in his Responsum #125, where he reported that he had conducted the wedding of an orphan bride on Friday evening, two hours after Shabbat had commenced (a disciple also reported that Isserles did not say his Shabbat prayers until after the wedding). There had been a lengthy argument about the dowry to be furnished by relatives of the orphan, and rather than shame the girl, Isserles insisted that negotiations continue until the groom was satisfied; then the marriage was performed. The occasion must have led to considerable complaints, for the responsum reports them. The mitzvah of marrying the girl overrode any objection which might have been raised in this case, especially since the Rabbinic prohibition was made only to keep individuals from writing the Ketuba on Shabbat or acquiring property (as the man might do in this case). Isserles did not feel that the general rule against marrying on Shabbat was challenged by him as he had acted only under the pressure of an emergency. Here the “honor of people” took precedence. He cites, in addition, Hagahot Asheri and the Semag, while acknowledging that Alfasi, Rambam, and others opposed such leniency. It is clear from these sources that under emergency conditions weddings were certainly permissible on Shabbat. It is equally clear that the bedi-avad weddings conducted on Shabbat were to be considered completely valid. We, however, are not concerned with an emergency, but with the usual social context for a modern wedding planned well in advance in the largest number of cases. From the sources cited above, we can see that the traditional prohibition against marriage on Shabbat as given in the Shulchan Aruch rests on foundations in the Talmudic tradition which we, as Reform Jews, no longer observe. One might, therefore, be led to argue that inasmuch as marriage is a mitzvah, it should override any objections to its performance on Shabbat. We disagree with that point of view for the following reasons: (1) Despite weak foundations, the custom of refraining from conducting weddings on Shabbat has been universally accepted for many centuries. Although the Talmudic foundation is slim, the statement in the Shulchan Aruch is clear, and has had the support of Reform Jews. It continues to receive such support now. (Although technically such a marriage may reflect only a minor infringement of Shabbat, it is a major matter, especially when related to the general level of Shabbat observance.) Since it has the weight of a widely observed minhag which supports the spirit of Shabbat, it should not be dismissed or disregarded. (2) The Reform Movement has encouraged Shabbat observance in creative ways for more than a decade. We have published a Shabbat Manual, and we encourage our members to make Shabbat a “special day” upon which we do not carry out duties and acts performed on other days. Countenancing marriages on Shabbat would detract from this objective and weaken our efforts. We would, therefore, go further and discourage weddings being held even on Saturday evening, for they involve preparations on Shabbat which are not in keeping with the spirit of rest and holiness of Shabbat. (See Ket. 2a: “Wedding preparations should not disturb the Shabbat.”) (3) We have a great respect for Kelal Yisra-el and wish to do everything possible to advance the unity of the Jewish people. There are, to be sure, certain matters of principle for which we must stand alone, but this does not qualify as one of them. We are here discussing a matter of mere convenience, because a marriage can easily be performed on any other day except in extreme emergency caused by persecution or war. (4) Our tradition has always emphasized that in addition to all else, marriage has as its basis companionship, procreation, and family life; but there are also various economic aspects which form an important element of the traditional Ketuba, and are not stressed by us. However, economic considerations do play a considerable role at a time when the family is about to be established in terms of property rights, insurance benefits, etc., in many states, and an equally large role when such a family is dissolved. These may not be readily apparent to the couple. Although they may not be “transactions” in the ordinary sense, Shabbat is not the time to initiate them. Economic considerations prompted Isserles to act boldly, but he kept some distinction between the financial negotiations and Shabbat by delaying his evening prayers. His act does not seem to be a precedent for interrupting Shabbat. We should not engage in transactions with these overtones on Shabbat. (5) We should not elevate an emergency procedure to a normal standard of conduct. We are opposed to the performance of marriages on Shabbat, as we prefer to give allegiance to a hallowed tradition rather than to honor mere convenience. For all these reasons, we, as a committee, after due deliberation, recommend that the generally prevailing practice be continued, that is to say, marriage ceremonies should not be conducted on Shabbat or on Yom Tov.Walter Jacob, ChairmanSolomon B. Freehof, Honorary ChairmanStephen M. PassamaneckW. Gunther PlautHarry A. RothHerman E. Schaalman* The Rabbinic arguments against a marriage on Shabbat rest on weak foundations. The arguments are paralleled by those which prohibit climbing a tree, riding an animal, or swimming on the Sabbath. See also:S.B. Freehof, “Wedding on Saturday Before Dark,” Recent Reform Responsa, pp. 167ff.

If needed, please consult Abbreviations used in CCAR Responsa.

ARR 401-403

CCAR RESPONSA

American Reform Responsa

131. A Layman Officiating at a Jewish Wedding

(1979)QUESTION: May the president of a congregation or any other designated layman perform Jewish marriage ceremonies? In South Dakota there are no rabbis except in Sioux Falls, nor is there any rabbi available east or west for hundreds of miles. Under these circumstances, can weddings be performed by an authorized layman? (Mr. Stanford M. Adelstein, Rapid City, South Dakota) ANSWER: The Talmud cited three ways of effecting a marriage–through a document, through money, or by intercourse (Kid. 2a; Shulchan Aruch, Even Ha-ezer 26.4). (a) The most common form featured a deed witnessed by two competent individuals and handed by the groom to the bride (Kid. 9a; Shulchan Aruch, Even Ha-ezer 32.14). This has remained the essential covenant of the modern wedding. The deed is akin to the modern Ketuba signed by the two witnesses. (b) In addition, it was possible to effect a marriage through the transfer of an item of value (kesef) in the presence of two competent witnesses. This remains as part of the modern wedding in the form of giving a ring with the formula “Harei at mekudeshet…” (Kid. 2a, b; Shulchan Aruch, Even Ha-ezer 27.1). (c) Finally, marriage can be effected through intercourse (bi-a) preceded by a statement indicating the wish to take this woman as wife and with two witnesses who saw the couple leave for a private place (Kid. 9b; Shulchan Aruch, Even Ha-ezer 33.1). This last method was, of course, severely frowned upon by the Rabbis, but bedi-avad it was certainly valid. Consent was, of course, necessary (Shulchan Aruch, E.H. 42.1). The wedding in Talmudic times was also divided into two segments, Erusin and Nisu-in; the latter often took place up to a year after Erusin. In the Middle Ages, both parts of the marriage ceremony were united, as mentioned by Simhah of Vitry, 11th century (Machzor Vitry, pp. 587f). In the Eastern lands, this union of the two ceremonies already occurred in Gaonic times (Otsar Hage-onim, Yev. 381). It is clear from these statements that Talmudic law did not stipulate the presence of a rabbi, nor did it, in this connection, mention many other matters which have later become important (e.g., Minyan, Chupa, etc.) The matter of who may actually conduct the ceremony was hardly discussed, though there is a reference in the apocryphal book Tobit to the father conducting the ceremony which united the couple (Tobit 7:12). Among the Samaritans, the priest participated in the ceremony, but we do not know how ancient this practice may be (Mann, Texts, vol. II, p. 184). It seems that in earliest times any knowledgeable individual could conduct the ceremony (Kid. 6a, 13a). A little later, emphasis was placed on having a Minyan present, so that the ceremony was conducted in public, and, therefore, could not be taken lightly as was possible before merely two witnesses at home (Ket. 7b). Some Geonim suggested that the groom might be considered as one of the ten in order to make the Minyan a little easier (Otsar Hage-onim, Ket. 7b). Furthermore, the same Gaonic text stated that if no one sufficiently expert to pronounce the blessings was available, then the groom himself might pronounce them for himself. As the Jewish legal system in the entire Near East developed, the Nagid (head of the community) was given judicial powers, including the appointment of rabbis to various cities and towns within his jurisdiction. They supervised the religious life throughout the land, including marriages. Eleventh and twelfth century documents show this clearly (Abraham Freiman, Seder Kiddushin Venisu-in, p. 22ff). Maimonides, therefore, decreed that there could be no marriage or divorce except by an ordained rabbi within the Jewish community (Maimonides, Responsa, 156). By the 14th century, this practice had spread to Europe and was subsequently generally accepted (Maharil, Hil. Nisu-in). In the succeeding centuries rabbinic involvement in weddings has become virtually automatic. Thus, it has been customary for a rabbi (or occasionally a cantor) to officiate at weddings for the last six centuries, and it would be wrong to change that practice nowadays, especially with the ease of transportation from one place to another. A rabbi five hundred miles away is today no more distant than was a rabbi in the nearby town for our Polish or Russian ancestors a century ago. A rabbi should be asked to perform such weddings. The reason for the insistence that rabbis officiate at weddings, of course, involved much more than the ceremony itself and was already indicated by R. Judah. He said in the name of Samuel (Kid. 6a) that those who are not well acquainted with the procedures of weddings and divorce should not deal with them; this means the ability to deal with all the ramifications of marriage, which include pre-nuptial counseling, as well as the ability to counsel afterwards. It would extend to assistance in the establishment of a Jewish home, which would be even more important in a remote area than in large Jewish centers. It would also involve, in such a location, more assistance with the ceremony itself and the nuances involved with weddings. We must, of course, also insist that the requirements of the State in which the ceremony is to be performed must always be met; and many, though not all, insist on ordained clergy.Walter Jacob, ChairmanStephen M. PassamaneckW. Gunther PlautHarry A. RothRav A. SoloffBernard Zlotowitz

If needed, please consult Abbreviations used in CCAR Responsa.

TFN no.5751.12 197-198

CCAR RESPONSA

Marrying One’s Ex-Wife’s Sister

5751.12

She’elah
A man who has divorced his wife now wants to marry her sister. While the traditional law of consanguinity

forbids it, is it appropriate in our age to continue being strict regarding this particular relationship? If it remains

objectionable and the couple are nonetheless married by civil authority, should they be accepted into the synagogue

and should their children be educated in the school?

Teshuvah
The biblical prohibition regarding marrying one’s ex-wife’s sister (Lev. 18:18) states: ve-‘ishah el

achotah lo tikach litsror aleiah … be-chayyeiah , which the JPS translation broadly renders as “Do

not marry a woman as a rival to her sister…in her lifetime.” The objective of the prohibition is clearly not

consanguinity but peace between the sisters. Note that the Hebrew literally says that the marriage is prohibited

because its effect would be litsror aleiah , to make life narrow and mean for the first wife.1 Thus, the

purpose of the law is to avoid sibling discord.

The Talmud already posits the question whether the relationship is allowed if the first wife has been

divorced, and answers that the addition “in her lifetime” prohibits this.2 Thus, the reason for the biblical stricture is

seen not as permanently inherent in the relationship itself, as it does in all other prohibitions of the chapter

as the rests on plain inter-personal considerations, which disappear once the first wife is dead, but

not before.3

To be sure, the Torah law proceeds from a stance of polygamy, forbidding a man to take sisters as wives at

the same time.4 But, as indicated, rabbinic tradition goes beyond ancient sociology and tries to avoid a situation

which cannot help but create bitterness between the sisters. This configuration has not lost its potency in our time,

and our Rabbi’s Manual maintains the prohibition.5 We therefore urge that the rabbi not officiate at the

marriage.

What about membership in the synagogue if the marriage is contracted before civil authorities? Despite

their flaunting of Jewish tradition the two people are and remain Jews and should therefore be admitted,

and so should their children, whom we are obligated to provide with a Jewish education.

Notes

  • So Rashi, who points out that the expression litsror (to make narrow) is related to tsarah,(trouble, misfortune).
  • TB, Yevamot 8b.
  • Rambam. Mishneh Torah , Issurei Bi’ah, 2:9; Jacob ben Asher, Arba’ah Turim, Even Ha-ezer,Hilkh. Pirya ve-rivya, # 15, et al.
  • TB, Kiddushin 50b.
  • 1988 ed., p. 235.If needed, please consult Abbreviations used in CCAR Responsa.

CARR 293-296

CCAR RESPONSA

Contemporary American Reform Responsa

199. Marriage of Transsexuals*

QUESTION:

May a rabbi officiate at a marriage of two Jews, one of whom has undergone a surgical

operation which has changed his/her sex? (Rabbi D. Gluckman, Family Life

Committee)ANSWER: Our responsum will deal with an individual who has

undergone an operation for sexual change for physical or psychological reasons. We will

presume (a) that this has been done for valid, serious reasons and not frivolously; (b) that the

best available medical tests (chromosome analysis, etc.) have been utilized as aids; (c) that this

in no way constitutes a homosexual marriage. There is some discussion in traditional

literature about the propriety of this kind of operation. In addition, we must recall that tradition

sought to avoid any operation which would seriously endanger life (Shulhan Arukh Yoreh

Deah 116; Hul. 10a) . The Mishnah has dealt with the problem of individuals whose sex

was undetermined. It divides them into two separate categories, tumtum and

androginos. A tumtum is a person whose genitals are hidden or undeveloped and

whose sex, therefore, is unknown. R. Ammi recorded an operation on one such individual who

was found to be male and who then fathered seven children (Yeb. 83b). S. B. Freehof has

discussed such operations most recently; he permits such an operation for a tumtum,

but not for an androginos (Modern Reform Responsa, pp. 128 ffl. The

androginos is a hermaphrodite and clearly carries characteristics of both sexes

(M. Bik., IV, 5). The former is a condition which can be corrected, and the latter, as far as

the ancients were concerned, could not. So, the Mishnah and later tradition treats the

androginos sometimes like a male, sometimes like a female, and occasionally as a

separate category. However, with regard to marriage, the Mishnah (Bik 4.2) states

unequivocally, “he can take a wife, but not be taken as a wife.” If married, they are free from the

obligation of bearing children (Yad Hil. Yibum Vehalitzah 6.2), but some doubted the

validity of their marriages (Yeb. 81a; Yad Hil. Ishut 4.11; Shulhan Arukh Even

Haezer 44.6). The Talmud has also dealt with ailoni, a masculine woman who is

barren (Nid. 47b; Yeb. 80b; Yad Hil. Ishut 2.4). If she marries and her husband was aware

of her condition, then this is a valid marriage (Yad Hil. Ishut 4.11), although the ancient

authorities felt that such a marriage would only be permitted if the prospective husband had

children by a previous marriage, otherwise he may divorce her in order to have children

(M. Yeb. 24.1; Yeb. 61a). Later authorities would simply permit such a marriage to

stand. We, however, are dealing with a situation in which either the lack of sexual

development has been corrected and the individual has been provided with a sexual identity, or

the psychological makeup of the individual clashes with the physical characteristics, and this has

been corrected through surgery. In other words, our question deals with an individual who now

possesses definite physical characteristics of a man or a woman, but has obtained them through

surgical procedure and whose status is recognized by the civil government. The problem before

us is that such an individual is sterile, and the question is whether under such circumstances he

or she may be married. Our question, therefore, must deal with the nature of marriage for such

individuals. Can a Jewish marriage be conducted under these circumstances? There

is no doubt that both procreation and sexual satisfaction are basic elements of marriage as seen

by Jewish tradition. Procreation is considered essential as already stated in the Mishnah:

“A man may not desist from the duty of procreation unless he already has children.” The

Gemarah to this concludes that he may marry a barren woman if he has fulfilled this

mitzvah; in any case, he should not remain unmarried (Yeb. 61b). There was a difference

between the schools of Hillel and Shammai about what is required to fulfill the mitzvah of

procreation; tradition followed Hillel who minimally required a son and a daughter, yet the Codes

all emphasize the need to produce children beyond that number (M. Yeb. 6.6; Ket. 8a;

Yeb. 61b; Tos. Yeb. 8; Yeb. 8; Yad Hil. Ishut 15.16, etc.) The sources also

indicate that this mitzvah is only incumbent upon the male (Tos. Yeb. 8), although

some later authorities would include women in the obligation, perhaps in a secondary sense

(Arukh Hashulhan, Even Haezer 1.4; Hatam Sofer, Responsa, Even Haezer #20).

Abraham Hirsh (Noam, Vol. 16, 152 ff) has recently discussed the matter of granting a

divorce when one party of a married couple has had a transsexual operation. Aside from

opposing the operation generally, he also stated that no essential biological changes had taken

place and that the operation, therefore, was akin to sterilization (which is prohibited) or cosmetic

surgery. Hirsh also mentioned a case related to our situation; a male in the time of R.

Hananel added an orifice to his body, and R. Hananel decided that a male having intercourse

with this individual had committed a homosexual act. This statement was quoted by Ibn Ezra in

his commentary on Lev. 18.22. We, however, are not dealing with this kind of situation, but with

a complete sexual change operation. Despite the strong emphasis on procreation,

companionship and joy play a major role in the Jewish concept of marriage. Thus, the seven

marriage blessings deal with joy, companionship, the unity of family, restoration of Zion, etc., as

well as with children (Ket. 8a). These same blessings are to be recited for those beyond the

childbearing age or those who are sterile (Abudraham, Birkhot Erusin,

98a). Most traditional authorities who discuss childless marriages were considering a

marriage already in existence (bediavad), and not the entrance into such a union. Under

such circumstances, the marriage would be considered valid and need not result in divorce for

the sake of procreation, although that possibility existed (Shulhan Arukh Even Haezer 23,

see Isserles’ note to 154.10). This was the only alternative solution since bigamy was no longer

even theoretically possible after the decree of Rabbenu Gershom in the eleventh century in

those countries where this decree was accepted; we should remember that Oriental Jews did not

accept the herem of Rabbenu Gershom. Maimonides considered such a marriage valid

under any circumstances (Yad Hil. Ishut 4.10) whether this individual was born sterile or

was sterilized later. The commentator Abraham di Boton emphasized the validity of such a

marriage if sterility has been caused by an accident or surgery (Lehem Mishneh to

Yad Hil. Ishut 4.10). Yair Hayim Bacharach stated that as long as the prospective wife

realized that her prospective husband was infertile though sexually potent, and had agreed to the

marriage, it was valid and acceptable (Havat Yair #221). Traditional halakhah

which makes a distinction between the obligations of men and women (a distinction not accepted

by Reform Judaism) would allow a woman to marry a sterile male since the obligation of

procreation do not affect her (as mentioned earlier). There was some difference of

opinion when a change of status in the male member of a wedded couple had taken place. R.

Asher discussed this, but came to no conclusion, though he felt that a male whose sexual organs

had been removed could not contract a valid marriage (Besamim Rosh #340 – attributed

to R. Asher). The contemporary Orthodox authority, E. Waldenberg, assumed that a sexual

change has occurred and terminated the marriage without divorce (Tzitz Eliezer, X, #25).

Joseph Pellagi came to a similar conclusion earlier (Yosef et Ahab

3:5). Perhaps the clearest statement about entering into such a marriage was made by

Isaac bar Sheshet who felt that a couple is permitted to marry and then should be left alone,

although they entered the marriage with full awareness of the situation (Ribash #15;

Shulhan Arukh Even Haezer 1.3; see Isserles’ note). Similarly, traditional authorities who

usually oppose contraception permit it to a couple if one partner is in ill health; the permission is

granted so that the couple may remain happily married, a solution favored over abstinence

(Mosheh Feinstein, Igrot Mosheh, Even Haezer #63 and #67; he permits marriage under

these circumstances). Our discussion indicates that individuals whose sex has been

changed by a surgical procedure, and who are now sterile, may be married according to Jewish

tradition. We agree with this conclusion. Both partners should be aware of each other’s condition.

The ceremony need not be changed in any way for the sake of these individuals.September

1977

If needed, please consult Abbreviations used in CCAR Responsa.

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