Perhaps no issue is more misunderstood within the context of halakhah, Jewish law, than gay marriage. On the one hand, those such as my friend and teacher Rabbi David Ellenson, President of Hebrew Union College, has radically argued that “a tradition that demands ‘You shall do that which is upright and good’ can surely be construed in such a way that the ethos of Jewish tradition can be said to trump a single statement in Leviticus 18:22 that condemns homosexual behavior as an ‘abomination.’ ”
On the other hand, those such as Rabbi Tzvi Hersh Weinreb, who has brought back a great deal of sanity and sobriety to the much-maligned Orthodox Union, has contested Ellenson’s claims and argued: “The position of Judaism on marriage is equally clear. Judaism recognizes marriage as a fundamental human institution, and affirms marriage only between a man and woman.”
Each of these rabbis has the issue only half right. Weinreb is wrong, because Jewish law “recognizes” the marriage of Joe and Marry as much as it recognizes the matrimony of Jon and Sam. That is, it does not “recognize” either union in any way. Ellenson is wrong because to ask an Orthodox Jew to halakhically sanction gay marriage is simply put not fair or reasonable. You can’t just gloss over the word “abomination.”
But what both sides fail to realize is that halakha only recognizes one type of union, kiddushin, or betrothal, in which a Jewish man and women are joined in front of two halakhically observant individuals. It includes the blessing over wine; the birkat erusin, the betrothal blessing; the drinking of wine by the bride and groom; and the giving of a ring by the groom to the bride as he recites “Harei at mekudeshet li b’taba’at zo k’dat Moshe v’Yisrael,” (“With this ring you are now betrothed to me by the faith of Moses and Israel”).
Any other form of union is meaningless in the eyes of halakhah.
Let me be clear: “kiddushin” does not equal “marriage.” One is the domain of halakha and can be enacted only by Jews; the other is a technical term granted to something sanctioned by the state that provides a certain economic and political status to specific individuals.
Halakhah has very little to say about state marriage and the civil rights and economic privileges that go along with such a status. One need not halakhically permit gay kiddsuhin to feel that in the name of ethical and economic equality it is important that gay couples be granted civil union or marriage status. Likewise, one could argue that for non-halakhic reasons, gay marriage should be banned. But whatever side you take, do everyone a favor and leave halakhah out of what is already a far too complicated issue.