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Orthodoxy, Halakhah, and Gay Marriage

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.

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posted May 9, 2006 at 1:46 am

Rabbi Stern- I found your exposition the most humane and clear halakhic approach to this question that I have found recently. Both your colleagues below try hard to be open and allowing but you make the clear distiction between Kiddushin- the sanctification and legal bond (only recent times have followed with ketubah immediately)- and the Ketubah which for many non-religious is the Rabbi exercising his State approved license. I remember learning the talmud that after kiddushin- the legal betrothal- it was as if she were married because any relations with an other man woud be adultery. You advocate breaking that there is a necesary pairing of kiddushin and a state marriage license. All state sanction does is provide Civil Union-if the couple wants the Ketubah and the sanctification, let them come to the Rabbi and see if he will provide it. But if one is committed to Judaism- in any of the movements- then let the couple go to the movement of which they are a part; to their Rabbbi. For Reform and Reconstructinist, their Rabbis will probably perform the ceremony. For Conservative, that struggle is going on now within the RA. For the Orthodox, it would be expected that the choice and understanding of what is possible has already been made when one identifies with an Orthodox shul. It seems to be the most religiously liberal jews who are most upset that the Orthodox and Conservative will not conduct same sex marriages- but why are they so adamently feeling rejected by a level of observance that they themselves refuse to accept. If one is a member of a community, and has good relationship with one’s Rabbi, I fully believe in most cases a very satisfactory recognition can be reached that can satisfy all parties level of reglious needs. Without Ketubos there are no Gittim.

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posted May 13, 2006 at 4:47 pm

There is nothing in Judaism which requires that kiddushin be the only form of marriage for straights or gays. As a woman committed to an egalitarian Judaism, I find some of the assumptions in kiddushin appalling – i.e. an exchange of funds for the promise that the woman will give her sexual favors only to her husband. If when I was married, 27 years ago, there was an egalitarian form of Jewish marriage in which my husband and I had officially accepted equal obligations to each other, in exchange for a commitment to spend our lives together, I would have opted for that. Gay couples want the same thing – a chance to make that commitment within the embrace of their faith. Nothing in Halakah would prevent development of an alternative form of marriage to kiddushin, and I for one would renew my vows with a new form as my old ketubah does not (and never did) reflect the commitments my husband and I actually made to each other which involve true mutuality and respect, and not a purchase. In fact, I imagine that if asked if they believed that the traditional Ketubah reflected the marriage contract they believed they were entering into, most Jewish women would say no. So is it even a valid contract?

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posted November 14, 2006 at 11:55 pm

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… Any other form of union is meaningless in the eyes of halakhah Crap. So much for reform erudition. Study the discussions in the Talmud of how divorce is effected by non-Jews. If there is no marriage, what divorce is necessary. The Talmud recognizes paternal descent by non-Jews. If there is no marriage and was no DNA, how was that to work? If there is no marriage, how is there a prohibition against adultery? Go back to hebrew school, do not pass go, do not collect 200 shekel.

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posted November 14, 2006 at 11:57 pm

reform erudition Oops. It appears the rabbi is “orthodox”. Am I to draw my conclusions of what they teach in YU? My YU acquaintances most definitely have their heads screwed on a little straighter…

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