Vows

This is the idea of one of my halakha teachers, who prefers to remain an anonymous formulator of ideas rather than a known promulgator of particular methods.

This, like R. Ner-David’s proposal in her book, involves playing with nedarim, vows. The first thing to say about vows is that they’re dangerous; there’s a pretty strong Rabbinic tendency to avoid going there if one can. They’re binding, powerful, and one wants not to be in a position where one can’t fulfill what was promised.

In any case, it does offer one way out of the kiddushin dillemma. If one violates a vow, one has committed a sin d’Oraita [of Torah law, rather than rabbinic law], so it has the same level of seriousness as traditional kiddushin. One needs to go to a beit din [legal court] to undo one’s vow–so there’s a way out, and/though it involves community consent. If a marriage ritual involves two separate vows of monogamy, care, providing economically and so forth, each party can undo his/her vow without concern for the other party. This, then, avoids some of the problems that arise if a woman wants a divorce and her husband won’t grant a get.

ADVANTAGES: Can be fully egalitarian, a solution for the get issue, is significantly legally binding, nobody gets acquired.

DISADVANTAGES: It’s not “romantic” feeling, there’s no kiddushin (as always, a pro or a con), one needs the backup of a local beit din to undo, vows are dangerous and not to be treated lightly.

Invoking Rebbeinu Gershom

Another thing some people do is that, after the groom gives the bride the ring and says, “Harei at mikudeshet li c’da’at Moshe v’Yisrael” (Behold, you are set apart for me according to the laws of Moses and Israel), the bride then says, “Harei, atah mikudesh li c’da’at Rebbeinu Gershom v’Yisrael” (Behold, you are set apart for me according to the laws of Rebbeinu Gershom and Israel.)

Rebbeinu Gershom is, among other things, famous for issuing a ban (“takanah”) on polygamy in the 11th century. At first it was understood as binding on specific Ashkenazi communities, but now it’s more or less accepted accross the Jewish world (with a few communities here and there who don’t hold by it). As such, for Ashkenazi Jews in particular, Rebbeinu Gershom acted as the agent of more or less equalizing the male and female pieces of the marriage agreement–just as the bride, through marriage, was prohibited to other men, the groom, through marriage, is prohibited from taking other wives. (The issue of adultery is complicated, and I won’t get into it here).

The big problem with a woman handing a man a ring and saying, “Harei, atah.. c’da’at Rebbeinu Gershom” is that it’s technically not correct. The takanah (forbidding him to marry other women) kicks in when he acquires her, NOT when she gives him a ring. It may be a nice, symbolic way to acknowledge their respective sexual limitations on each other, but it has no halakhic status.

ADVANTAGES: Halakhic marriage, ring exchange, the woman publicly declares her husband’s monogamy just as he declares hers, it’s kind of cute.

DISADVANTAGES: Her statement and ring-giving have no halakhic status, she’s still acquired (and he’s not, really), even the limitations on seuxality in the two situations aren’t exactly parallel.

The Da’at Factor

One of the more unassailable requirements of kosher kiddushin is דעת המקנה, consent/knowledge on the part of the one being acquired as to what’s happening. Traditionally this was so that one couldn’t marry a woman off without her consent, but now, the question lingers: if a woman gets married without knowing that her wedding ceremony includes a kinyan and requires a get to be given by her husband, has she given informed consent?

There’s also a principle of “mekach ta’out” in play, aka agreement under false pretenses.

R. Meir Simchah Feldblum, in an article titled, “Ba’ayot Agunot uMamzerim” in Dine Yisra’el, XIX (5757-5758), argues that, were women aware of the technical nature of their marriage (ie, that receiving a ring equals being acquired in some sense), they would not consent to a halakhic wedding ceremony. He uses this principle as a way of annulling many weddings, in situations in which a woman is left stranded without a get. They didn’t know that they were being bought, therefore it doesn’t “count” as a kosher wedding.

This isn’t a shita (method) for weddings so much as a factor to keep in mind through all of this. Many rabbis fail to mention the kinyan factor to prospective couples as marriage planning begins–for understandable reasons, since the rabbi wants the couple to have a kosher wedding, doesn’t want them (particularly if they’re not very Jewishly engaged) to freak out and refuse to have anything to do with the religion, etc. But said rabbi may be doing them a great disservice, since the status of their eventual marriage, if the bride doesn’t have knowledge of what’s happening, is in question. On the other hand, it’s a handy loophole if there’s concern about ever needing to annul the marriage because a divorce isn’t being granted.

Kinyan Shtar

The Mishneh Torah, Hilchot Ishut 3:21 writes that though “the children of Israel have accustomed themselves to betroth with money or its equivalent… if a man wants to betroth with a document, he may do so.” The Shulchan Aruch (Even HaEzer 32:1), echoing the language of the Rambam’s Hilchot Ishut 3:3-4, details the nature of the document that can be used for kiddushin: “He [uses] paper or pottery shard, even if [the paper’s value] is not equal to a peruta, and writes for her, “Behold, you are betrothed to me,” and gives it to her before witnesses, and he needs to write it in the name of the woman to be dedicated [ha-isha hamikudeshet], as one would in a get….”

There isn’t a lot of detail in the sources (at least the ones I’ve encountered–please comment if you know something) about what is forbidden to write on such a document so long as the above requirements are met. As such, the shtar [document] of kiddushin could be framed as a parallel document to the ketubah, in which the bride promises not only monogamy, but also to feed, shelter, care for her groom and what the financial (and possibly legal) implications of the marriage dissolving might be. In such a case, the standard ketubah would only require a clause promising the groom’s monogamy for the parallel to be complete.

In this solution, the groom would effect kiddushin by handing the bride the document detailing her responsibilities—or she could accept it through kinyan sudar[acquiring through taking up an object] with a scarf or pen—and the bride would hand the groom perhaps the ketubah and a scarf or pen, thereby effecting the kinyan through which his ketubah responsibilities are acquired. If the couple wished to do an exchange of rings, they could do so after this, to be clear that shtar [a document], not kesef [money/a ring], is the means of acquisition.

This solution has the advantage of being kosher kiddushin, and for having parallel responsibilities or promises “sold” in the respective documents—there are two kinyanim, one representing each party’s “selling.” It lacks, perhaps, the romantic or “traditional” feeling of a ring being used to effect kinyan, but of course avoids that method’s many drawbacks.

Unfortunately, with this solution, the groom is still the only party engaging in acquisition—he acquires the bride (or at least her sexuality and other ketubah-like promises) through kiddushin, and then acquires the responsibilities of his own ketubah through kinyan sudar. Though the bride’s level of participation and responsibility is much more on par with the groom’s level, he is still fundamentally the actor in this drama. Please see the article by R. Dov Linzer for more information on some of the underlying concepts, here.

ADVANTAGES: Halakhic kiddushin, enables bride and groom responsibilities to be relatively parallel, makes the ring-for-ketubah exchange of the Linzer model much more parallel.

DISADVANTAGES: Doesn’t “feel” like traditional kiddushin and the ring exchange, the woman is still technically acquired, couples lose the opportunity to detail each party’s responsibility to the other in one ketubah, one single document.

Let Halakha Follow Minhag

The Reconstructionist-ordained Rabbi David Mivasair argues (Beckerman, Cheryl. “Kiddushin and Kesharin: Toward an Egalitarian Wedding Ceremony.” Kerem vol. 5, Spring 1997.) that, as more heterosexual couples embrace a ceremony in which both male and female parties use the traditional formula of acquisition–harei at[ah] mikudesh[et] li… (“Behold, you are set apart for me with this ring according to the laws of Moses and Israel”). This statement, plus a ring exchange with the intention of mutual kinyan (acquisition), the minhag (custom) will, as many minhagim have, eventually be transformed into halakha (law) with a corresponding weight. He writes, “As more and more couples have the women say these words under the huppah at their weddings, doing so [is becoming] dat Moshe v’Yisrael. (the law of Moses and Israel)”

While this is a nice sentiment, one that might one day come to pass, it certainly does not reflect our contemporary world. For the moment, the bride’s utterance of the harei atah mikudesh li formula is, by most authorities, either irrelevant (because she does it second, after she has been acquired already, and it’s thus an utterly meaningless statement with no legal weight) or it’s understood to cancel the kinyan transaction, as it is parallel to the groom’s gift and can be read as a “giving back” of the ring. In no way, at least according to traditional halakha, can the woman acquire the man with this formula.

Secondly, even if we hope and trust that this minhag is incorporated eventually into halakha, we still remain with the problem of the halakhic status of weddings performed until this happens. Nonetheless, as a form of civil résistance and protest for halakhic change, this might be quite powerful.

ADVANTAGES: Feels equal, everybody gets a ring and a voice under the chuppah, it’s same-sex friendly, and it has an activist dimension to it.

DISADVANTAGES: It’s either irrelevant to kiddushin of bride or it cancels the kiddushin of the bride (and one should know which one it is!), as a “minhag trying to create halakha,” it’s not likely to be recognized by authorities as halakhic, has somewhat of a confused attitude about whether this is a halakhic ceremony or a non-halakhic ritual.

Pilagshut

A relatively recent article by Dr. Tzvi Zohar in Akdamot has seemingly raised the whole pilagshut (concubinage) issue again, but, really, people have been talking about it for a while, now. Hirhurim notes a few other sources (and rebuttals), and I’m pretty sure R. Arthur Waskow was supporting this notion as a replacement for kiddushin a while back as well.

In short, a pilagesh is a woman permitted to sleep with a man, and (see Sanhedrin 21a) there’s no ketubah and no kiddushin involved. With no contract and no responsibility, there’s also no certainty of duration–the encounter can be for a night or a lifetime. The only thing that makes it “kosher” is that the woman can’t be in niddah (a state of menstrual “impurity”) and has to go to the mikveh after niddah and before intimate relations.

For some people, perhaps, there’s interest in making up an offical “pilgashut” agreement, wherein the woman becomes the pilegesh of the man, in lieu of kiddushin or its variations.

ADVANTAGES: Nobody gets bought, there’s no get issue, it’s a way of putting very modern idea into an ancient Jewish framework, it’s a way of giving a ritual a Jewish flavor if one primarily wants a civil/secular, rather than halakhic marriage.

DISADVANTAGES: There’s no ritual/legal binding, nobody is responsible or obligated to anyone else (which, at least to me, gives the thing a lot less weight and meaning, but I suppose others might see this as a pro), setting this up in a ritualized way is almost superfluous, since the whole point of pilagshut is that you don’t need the bells, whistles and contracts.

Brit Ahuvim

Rachel Adler, in chapter 5 of her Engendering Judaism, details a wedding ceremony meant to be a “lover’s contract,” based on shutafut, a traditional model for partnership (usually business partnerships) rather than the traditional model of marriage.

I don’t have the book handy–it’s in another country–so I’m not going to write about the ritual’s mechanics in detail. If someone does, feel free to email me; otherwise, anyone interested should just check the book for oneself.

It’s not clear to me whether a couple using her ceremony would be legally obligated as a business partnership (and what that might entail). I don’t know enough about hilchot shutafut to know how, halakhically, one might end a partnership. I suspect that there’s more than simply walking away, but this isn’t something I’ve studied in detail. Anyone who knows, please email me or comment here!

ADVANTAGES: Does not require a get, is fully egalitarian, is same-sex marriage friendly, has a historical connection to Jewish ritual history (ie, it’s not a ceremony invented whole-cloth). Is possibly binding legally.

DISADVANTAGES: It’s not kiddushin, so halakhically one is not fully married (I recognize that, re: the get issue, this is a plus for some people), it doesn’t “feel” like the traditional ceremony. Unclear (to the author of this site–I need to go learn this) what needs to hapen to “unbind” a partnership.

Kinyan via Pleasure

It’s written in Kiddushin 7a:

Raba said, ‘What [if a woman declares,] ‘Here is a maneh and I will become betrothed to you’? Mar Zutra ruled in R. Papa’s name, she is betrothed…. In return for the pleasure [she derives] from his accepting a gift from her, she consents to the betrothal.

In her book Life on the Fringes: A Feminist Journey Towards Traditional Rabbinic Ordination, R. Haviva Ner-David suggests that this could be a useful basis for a wedding ceremony.

While the woman is still unilaterally acquired–here, through receiving the pleasure of gift-giving rather than through an object–the kinyan according to this logic is affected by means of her active giving of an object (say, a ring) to her husband-to-be.

Ner-David, in the book, suggests that this might be taken further, to make the ceremony more parallel on all sides. In her formulation, after the bride gives the groom a ring (and receives pleasure from doing so) he then takes a vow of monogamy to parallel the sexual dedication of his wife-to-be. She declares that she has received pleasure from giving a ring and hearing this vow, and then he can give her a ring, declaring her betrothed by means both of this second ring, and the pleasure she had received.

R. Ner-David herself acknowledges the problems inherent in this solution. She writes, “this ceremony… would not solve the problem of the unilateral nature of the marriage, since a kinyan is still the basis of the ceremony…Nevertheless, it does give a different feel to the ceremony….”

ADVANTAGES: It’s halakhic kiddushin, the bride’s giving of a ring has an integral halakhic role in the ceremony, the groom (in Ner-David’s addition) obligates himself to monogamy just as he obligates the bride to monogamy.

DISADVANTAGES: The kinyan here is still very much the acquisition of a woman, vows are tricky in Jewish law (see link below).

More on vows here.

The Linzer Model

Rabbi Dov Linzer, Rosh Yeshiva at the left-leaning Orthodox Chovevei Torah, wrote this article on increasing women’s roles under the chuppah.

The practice in Sephardic communities and in Jerusalem is for the groom to assume his ketubah obligations under the chuppah, immediately following the kiddushin. This obligation is assumed through an act of kinyan, classically performed by the groom taking an object (often a handkerchief or a pen) from the officiating rabbi in the presence of witnesses. However, since the groom is obligating himself to the bride, it is actually more appropriate that the bride, and not the rabbi, give him the object. This object can be a ring…. Such a ceremony makes it explicit that the bride is not doing an act of kiddushin, but rather initiating the groom’s acceptance of the ketubah obligations. It allows for the bride’s giving of the ring… to play a central halakhic role.

This practice, if not detailed explicitly as such, has philosophical roots in the Hatam Sofer, who very much envisions the taking on of the ketubah as a parallel to kiddushin. He writes,

In the case of betrothal, there is no buyer or seller, but rather halifin [exchange]. The groom ‘sells’ himself, giving over his person to his betrothed by assuming specified obligations, namely, sustenance, clothing and cohabitation. In return, [the bride] ‘sells’ herself, giving over her person by assuming the obligation of cohabitation by Torah law, and handing over her handiwork by rabbinic law. This is halifin. (Hiddushei ha-Hatam Sofer to Bava Batra 47b.)

Note the Hatam Sofer’s use of language, shifting the emphasis from acquisition to sale, emphasizing the fact that both parties are “selling” something, and de-emphasizing the fact that the groom is, in both places, doing the “buying.”

While Linzer’s model is not bad, there remains still a discrepancy between the kinyan of the male and the kinyan of the female—he acquires the responsibility for food, clothing and sheltering her, and he also acquires her monogamy.

There are ways that this idea can be extended to make the exchange more equal on both sides, as will be discussed in other posts.

in brief:

ADVANTAGES: This kiddushin is halakhically sound, gives the woman more agency under the chuppah, and there is a feeling of equal trade going on, the woman gives the man a ring that is halakhically significant.

DISADVANTAGES: It’s not technically equal; the groom still buys the bride, and though he also acquires his ketubah responsibilities (as he does in every traditional Jewish wedding), she acquires nothing from him, technically, and his sexuality is not regulated in any way.

Welcome to The Kiddushin Variations

As a rabbinical student, I became interested in a question that has both interesting theoretical layers and serious practical implications.

In the first part of the traditional Jewish wedding ceremony (called Kiddushin), the groom hands the bride a ring, and, by doing so, acquires her (the technical word for this transaction is kinyan.) Some (Judith Romey Wegner, among others) argue that he is “just” buying her sexuality, the right to monogamy, and others argue that the aquisition is more general than that. But in any case, the sources are pretty clear about what’s happening.

My question was, is there any way to have an egalitarian, kosher (halakhic) wedding ceremony–in which nobody is bought or, possibly, both groom and bride buy each other?

I wrote a little research paper on the question, and then discovered that I couldn’t escape it. Friends getting married were asking me for help, I took a class on the halakah [Jewish law] that turned out to be all about the problems of kiddushin. I was invited to join a feminist study group, and it turns out they were already knee-deep in the question of kiddushin.

In short, I’ve started to hear a lot of ideas on what Jews who are both committed to tradition and to a more egalitarian sensibility might do in a wedding ceremony. I don’t agree with all of them, but for the purposes of the site, that’s not the point–rather, it’s a space to catalogue all of the various ideas people are having on this question, and to make space for discussion and debate.

I’m pretty sure there’s not one perfect solution, certainly not one that’s perfect for everybody. For some, a more traditional kiddushin might be important, and perhaps folks’ll be happy to see some ways to do that give the bride more of a role in the ceremony. For others, discarding the notion of acquisition altogether is important, and they’re looking for a meaningful substitution. And other folks might want to have their cake (a halakhically binding ceremony) and eat it too (that is also feminist). Filter the advantages and disadvantages as you like; my bias is all over this project, and you’re encouraged to chuck it for your own biases instead.

As I get the time (and then, as I hear of more ideas), I’m going to post what I know on this site, so that it can be a good general resource for people who might be looking for something like this. I’ll more or less describe the idea, offer whatever I might have in terms of its textual basis, and offer some very off-the-cuff thoughts on its advantages and disadvantages for couples who are trying to figure out how to do this, from my own vantage as a feminist committed to the tradition. Obviously, the gender thing looms large in a lot of these suggested rituals, but some should also be of interest to same-sex couples as well.

If you’re reading this site and not the type who’s well-versed in the ins and outs of Jewish law, please discuss whatever you’re thinking re: your own ceremony with a rabbi who is. I don’t claim authority or halakic purity for any of these methods; they’re just things that smart people have suggested to me, and I wrote them down. Please do not try to operate this heavy legal machinery without a serious understanding of how it works.

It’s not meant to be comprehensive or the final word on anything–it’s more of a sketchbook of the ideas I’ve been hearing in various places. I’ll cite the idea’s author whenever I have one (and/or I’ve been given permission to do so). For more information about me, and who the heck I am, feel free to check out my personal site here.

If you have a shita (method) that you don’t see posted here, please, by all means–contact me!! And, obviously, please offer comments on these ideas–other factors that I haven’t mentioned, information I don’t have, and so forth.