Jacob A Moss & Rivka B Kern Ulmer. Journal of Homosexuality. Volume 55, Issue 1. 2008.
Statement of the Problem: Biblical and Talmudic Positions
You shall not lie with a male as with a woman; it is an abomination. (Leviticus 18:22)
The biblical passage in Leviticus 18 is the locus classicus for any discussion of homosexual marriage in Judaism. Those Jews who are opposed to homosexuality invariably rely upon this passage, although it is difficult to determine the exact meaning and the cultural context of this verse. According to Kenneth A. Locke, “Abomination is a translation of the Hebrew toevah, which can be rendered into ‘uncleanness,’ ‘impurity,’ or ‘religious/ ritual taboo’” (Locke, 2004, p. 133). This biblical text was written when behavioral boundaries for ancient Israelites were established; the prohibition was a sufficient justification to outlaw homosexual behavior which by implication could include marriage between two members of the same sex. Furthermore, there is no case precedent for homosexual marriage between two Jews within traditional Jewish sources. Even the case of an androgynous Jewish person (a person that has both male and female organs) does not address the issue of homosexual marriage because the Mishnah (a Rabbinic document codifying Jewish law, early third century) states that a person who has two genders may only marry a woman and not be taken as a wife. (Mishnah, Bikkurim 4:2).
Nonetheless, we have reason to assume that homosexual marriage contracts were known to the Rabbis of the Babylonian Talmud (Rabbinic discussions of the Mishnah and Jewish law, fifth and sixth century Babylonia); in a Talmudic sugya (unit of discussion) that is concerned with the ritual fitness of meat, the following debate is set forth:
Rav Judah said: These (thirty shekels) refer to the thirty righteous men among the nations of the world by whose virtue the nations of the world continue to exist. Ulla said: These (thirty shekels) refer to the thirty commandments which the Noahides took upon themselves but they observe only three of them, namely, they do not write a ketubah (marriage contract) for homosexuals, they do not weigh flesh of the dead in the market, and they respect the Torah … (Talmud Bavli, Hullin 92b)
According to Rav Judah in the above passage, the nations of the world only exist due to thirty righteous people. In this Talmudic passage, another opinion in the name of Ulla states that the lemma “thirty” refers to the 30 commandments that were accepted by the Noahides, the descendants of the biblical figure of Noah. However, according to Ulla, of these 30 commandments the Noahides actually only fulfilled the three commandments mentioned in the Talmudic text. One of the three commandments mentioned in the Talmudic text is, “they do not write a ketubah for homosexuals.” In respect to the above Talmudic passage, the medieval commentator Rashi (Solomon ben Isaac, 1041-1105) assumes that some of these 30 gentiles are suspected of homosexuality; nevertheless, they do not write a marriage contract between homosexuals. (A review of the variant Talmudic manuscripts confirms the reading “ketubah” (marriage contract); see Dikduke sofrim, 16, 124b.)
For the purposes of this article, the most significant fact in this Talmudic sugya (unit of discussion) is that the rabbis explicitly state that there was no written homosexual marriage contract among righteous Noahides. This implies that the rabbis of the Talmud knew about the possibility of such a contract of marriage between male homosexuals, and we may further assume that such a contract actually existed elsewhere, possibly in the cultural context of Sassanian Babylonia. Unfortunately, the Talmudic sugya does not provide the text of such a gentile homosexual marriage contract.
Definitions of Homosexuality in Judaism
Defining homosexuality in Judaism has been a constant struggle, because of the minimal amount of texts mentioning homosexuality. The above-mentioned biblical passage, “lie with a male as with a woman,” is transformed in Rabbinic literature to mishkav zakhur (a male lying with a male) as referring to homosexuality. In Tosefta (Sotah 6:9), the term to’evah (“abomination”) is explicitly defined as homosexuality, mishkav zakhur. Kirschner (1988, p. 456), adds to the Talmudic definitions of homosexuality that “halakhah assumes that sexual orientation is dichotomous and permanent” (p. 456) he remarks that “sexual reality is variable” and that homosexuality may be an expression of diversity (p. 457). One modern Orthodox view applies terms such as “phenomenon” and “sexual fashion” to homosexuality, implying that it is a reversible illness or condition (Lamm, 2004). Another Orthodox view is expressed by Feldman (1983) who argues: “The ‘illness’ attitude has served as a welcome device enabling the rabbi or Jewish law to be compassionate rather than judgmental.” (p. 427) A key Jewish value in regard to a person suffering from any illness is that all attempts should be made to cure the illness. This places orthodox Rabbis and certain Jewish scholars in the following limited perspective: The “sinful nature” of homosexuality is not acceptable, but since it is an illness, it should be cured. In Feldman’s opinion, homosexuals have to be cured because their sins arise from their own free will.
However, the vast majority of scientific inquiries in the last few decades have confirmed that homosexuality is not an illness. An entire new body of evidence has to be considered in respect to the issue of a marriage contract between two Jewish male homosexuals. For example “there is an existing gene that influences homosexuality” (Newman, 1997), suggesting that genetics may play a significant role in a person’s sexual orientation. Friedman and Downey (1994), for example, write, “Enough data have accumulated to warrant the dismissal of incorrect ideas once widely accepted about homosexual people. Many areas of law and public policy are still influenced by views discarded by behavioral scientists …” (p. 928).
Taking a closer look at homosexuality within the general population, a common definition states that it is, “sexual interest in and attraction to members of one’s own sex.” (“Homosexuality,” 1998). However, as will be shown later in this article, most Jewish legal texts have not considered the issue of “sexual interest” or “attraction” between males. Therefore, this modern definition did not play a role in the development of Jewish law concerning homosexual behavior. Homosexuality in Judaism can be defined in a number of ways that may be of assistance in our discussion of a homosexual marriage between two males. The Babylonian Talmud seeks to provide a simple explanation; it states that homosexuality has occurred, “if a man engaged in homosexual intercourse with another man” (Talmud Balvi, Sanhedrin 54a). This basic definition suggests that intercourse with a member of the same sex constitutes homosexuality, and, furthermore, the text indicates that such sexual conduct is grounds for punishment. The passage even goes on to state that if a man commits a homosexual act he should be stoned to death. Homosexuality was understood to be completely unnatural behavior. The Talmud asserts that homosexual acts are never consensual and always distinguishes the “perpetrator” and the “victim.” The male who performs the penetration is the “perpetrator.” This assumption that all homosexual acts are nonconsensual implies that homosexuality is a coercive relationship that is flawed from its inception. Still another example of a perpetrator-victim relationship is found in a rabbinic passage (Talmud Bavli, Sotah 13b) that states that the Egyptian Potiphar purchased Joseph, the biblical figure, as a domestic homosexual partner. This comment refers to homosexual cohabitation in a foreign culture, namely Egypt.
Another notable point from the above Talmudic text is the perceived relationship between homosexuality and incest. While the two subjects are not commonly discussed together in modern circles, the Talmud offers examples of the coalescence of these actions. In Jewish sources, sex with one’s father or father’s brother constitutes two separate punishable offenses; one for incest and one for homosexuality. This demonstrates how unacceptable homosexuality has been throughout history. A common problem for the modern reader of the Talmudic texts is the premise that it was inconceivable that a Jew would actually be homosexual. It is apparent that at the time of the writing of the Talmud it was an immense struggle for people to come to terms with homosexuality; this struggle continues within our own contemporary era.
The Talmudic perspective of homosexuality can be seen in conjunction with Greenspahn’s (2002) statements regarding the Bible and its categorical nature. He contends, along with many other biblical scholars, that the Bible demands that virtually everything be maintained within specific categories. Women should act according to the established female categories of the Bible and men should act according to the male categories. Any crossing of these boundaries was punishable or made a person unfit for service to the divine. This biblical code of law created dichotomies, an almost “binary” system; for example, materials such as linen and wool could not be mixed, which is a basic example of dual categories compared to the complex categorical laws of permitted foods.
In respect to homosexual marriage, it should be noted that the passage in Genesis 2:24, “cling to his wife,” is understood to exclude a male spouse for a man; this is also the intention of a passage in Talmud Yerushalmi, Kiddushin 1:1. Dresner (1991), states that the “husband-wife relationship is axiological” (p. 309) and he will not consider the possibility of homosexual spouses. In addition to the prohibition in Leviticus, which may be viewed as referring to the case of penetration (insertion of the male organ into another male body; see Talmud Bavli, Yevamot 54b; Sanhedrin 55a; see also Olyan, 1994), one should consider the narrative concerning the inhabitants of Sodom (Genesis 19:5; based on the Hebrew text in Biblia Hebraica, 1992), who either broke the laws of hospitality and/or were violent homosexuals, and who demanded that Lot hand over the male guests. A parallel situation is found in the violent story of the Levite’s concubine or wife (Judges 19:20). The concept of homosexuals as violent is the prevailing view in midrash, Rabbinic interpretive literature (see, e.g., Pirke de-Rabbi Eliezer 25:5). Homosexuality is the practice of the “others,” such as the inhabitants of Nineveh or generally “the idolaters.”
Generally, homosexual acts were deemed to be criminal offenses in the Torah. Both parties who engaged in homosexual acts were threatened with capital punishment (Leviticus 20:13). This capital punishment for homosexual acts is continued in the Talmud; however, minors are exempt (Talmud Bavli, Sanhedrin 54a). The reader should keep in mind that the threat of the death penalty in the Talmud is discussed primarily for didactic purposes; it probably was not implemented. Generally, most Talmudic discussions are concerned with hypothetical questions. This Talmudic passage states that “there are two ways of lying with a woman” and applies these two positions to homosexual intercourse. Homosexual behavior is explained as “the lying with a man like with a woman.”
A halakhic (“legal”) midrash (the particularly Rabbinic approach to interpreting the Hebrew Bible) contends that homosexuality and homosexual marriage were part of the practices of the Canaanites and the Egyptians: “What were they doing? A man would marry a man” (Sifra, aharei mot 9:8). This is an example of self-definition and individuation, in which the “other” is labeled as engaging in sinful behavior; this condemnation of the “other” relies on the wider context of the biblical injunction: “You shall not imitate the practices of the land of Egypt … or the land of Canaan” (Leviticus 18:3). The medieval philosopher and codifier of Jewish law, Maimonides (1135-1204), refers to marriage between homosexuals in his discussion of lesbians and their behavior. He quotes the Halakhic midrash sifra (see above) and writes: “The Sages said: What did they (the Egyptians) do? A man married a man and a woman married a woman and a woman married two men. Even though this (lesbianism) is forbidden practice, one does not apply lashes because it is not specifically prohibited and because there is no intercourse …” (Maimonides, Hilkhot Issurei Biah 21:8). Otherwise, Maimonides codifies the law in respect to homosexuality as prohibited intercourse (Issurei Biah 1:14; 21:8). The penetration issue is pivotal in Maimonides’ decision. This passage in Maimonides again alleges that the “others,” that is, gentiles, had the custom of homosexual marriage; we might also speculate that Maimonides, who lived in Old Cairo, had direct knowledge of homosexual unions from his own Egyptian environment.
Based on a passage in the Talmud Bavli, Kiddushin 82a, one may assume that there was no need for a safeguard against homosexuality, because it did not occur among Jews; the absence of homosexual behavior by Jews was presumed by the editors of the Talmud and its commentators. (Rashi on Kiddushin 82a mentions that there is a safeguard against homosexuality.) The premise of this passage, and many others in Jewish legal texts, is that Jews are not even suspected of homosexuality. The ban on homosexuality was also supported by the Talmudic claim that one of the seven Noahide laws, universal laws that applied to all people, was a prohibition against homosexuality (Talmud Bavli, Sanhedrin 57b-58a; Munich manuscript, Cod. Hebr. 95). A medieval commentator in respect to Talmud Bavli, Nedarim 51a states that a homosexual man abandons his wife (Tosafot, R. Asher [1250-1337]). This may be viewed as recognition of the fact that homosexuality existed and that homosexuals would only live with their male sex partners.
In several Talmudic passages homosexuality is discussed in sexually explicit ways. The descriptions used to explain these sexual acts include the distinction between so-called “natural” and “unnatural” intercourse. Both “natural” and “unnatural” intercourse relies on penetration as the defining moment of the sexual activity. Thus, in the Rabbinic perspective, male homosexuality was limited to sexual acts of penetration. Two males engaging in intimate relations only actually commit homosexual acts at the time of penetration. The mental and emotional feelings of the homosexual participants are not taken into account. One act out of the many components of the relationship, the act of penetration, would be the difference between an acceptable relationship and a punishable offense (Roth, 1993, p. 29). According to Rabbinic literature, the defining moment of homosexuality is “penetration.” Similarly, according to halakhah, a heterosexual marriage is not complete or valid until “penetration” occurs. Expanding on this idea, it could be argued that the prerequisite of penetration could be a factor in establishing a complete and valid homosexual marriage.
Another contemporary scholar, Greenspahn (2002), argues that “marriage entails far more than sex, and it is surely not the sex act per se that the ceremony of kiddushin seeks to sanctify so much as the relationship within which it is expressed” (p. 39). The act of penetration between homosexuals is the only action prohibited, yet kiddushin (marriage) seeks to sanctify the relationship between two people rather than their sexual intimacies.
The voluminous collections of Jewish legal opinions that interpret the Talmudic statements concerning homosexuality, and that may illuminate the issue of homosexual marriage, are found in further codifications of Jewish law and in the responsa literature (She’elot u-teshuvot, i.e., legal questions and responses). The code of Jewish law, Shulhan Arukh, Even Ha-Ezer 24, states that “one should abstain from being alone with another male, since lewdness is rampart in our times.” “Our times” is a reference to the codifier’s time (Joseph Caro, 1488-1575). This statement implies the possible occurrence of homosexual acts; however, the Shulhan Arukh does not mention marriage or domestic partnership between homosexuals. In fact, it does not even mention the prohibition of homosexuality. It is interesting to note that the commentator Sirkes (Joel ben Samuel Sirkes, 1561-1640) on the passage in Talmud Bavli, Kiddushin 82a, states that it is a sign of piety to share one’s cloak (cover, blanket) with another man in the same bed, because homosexuality is unheard of in Poland. Still another legal Rabbinic authority, in a responsum in regard to synagogue furnishings, Elijah ben Avraham Mizrahi (1455-1526) mentions that the head of the synagogue in Aragon (Spain) engaged in homosexual acts with a young man in the synagogue building; however, this did not render the building “unclean” in the same way as idolatry would have and the building was deemed fit for worship (Mizrahi, She’elot u-teshuvot, responsum no. 81).
The Dynamics of Jewish Law
We are citing Jewish legal literature, because Judaism is to a large extent defined by the discussion and the decisions found in this literature. Jewish law is based on three major sources: The Hebrew Bible, Rabbinic law and the vast body of codifications and further interpretations of law. Halakhah (Jewish law) is the way that the Jewish people are obligated to live their lives. According to Rabbinic Judaism, God gave the Torah—the first Code of Jewish Law—on Mount Sinai. Subsequently God relinquished the right to interpret and change the law. This responsibility was given by God to the sages of each generation who were charged with interpreting the law according to the needs and problems of their own time (Talmud Bavli, Bava Metziah 59a-b; Eruvin 13b). It is critical to emphasize that the Talmudic system of analysis frequently includes a majority and a minority opinion. Thus, the divine law is conceived to be pluralistic. Rabbinic reasoning, as found in the Talmud, is based on the principle that every legal dispute will contain a number of logical possibilities. Questions may be asked: What happens if contradictory rulings emerge, as frequently transpires in the Talmud, or if neither side is able to persuade the other? What is the particular claim of the Rabbis to sole legal authority? The response of the Rabbis is that their special training gives them critical insight into the nature of the Torah; these insights are unavailable to lay people. Rabbinic argument requires complete familiarity with the already received corpus of Rabbinic law and argumentation. This requirement of extensive expertise in Rabbinic literature is premised on the belief that the Rabbinic decisions reached in each generation will be based on the received material and result in a single coherent system of legal principles. Rabbinic legal authority is based on the following three points: a) the Rabbis carry forward the revelation received at Sinai; b) the Talmudic Rabbis are trained in a particular mode of articulation; c) their decisions give the tradition uniformity. This is a classical statement regarding the development of Jewish law (For discussions of Jewish law, see Golinkin, 1991; Ginzberg, 1955; Siegel, 1977b). Furthermore, the Rabbis utilized Jewish law in the same manner they use scriptural exegesis to instill in their readership the validity and authority of Rabbinic perspectives. The Rabbis were also fully convinced that their vision of Judaism was God’s will for the world as expressed in the Torah.
However, the implications of Jewish law—that is, the specific way in which Jewish law is to be observed—has not been the same in all periods of history. On the contrary, there have been many changes in Jewish law, including additions, deletions, and modifications. All three types of changes have constantly occurred in Jewish law. Some of these changes transpired gradually, but many were consciously designed by Rabbis in order to make observance of Jewish law possible and relevant in their time. One may argue that the Rabbis of the Talmud and the Middle Ages concluded that it was their responsibility to make such changes under the authority entrusted to them.
As mentioned above, one important change in Jewish law is modification or revision, Hebrew “takanah.” Revisions in respect to the laws of marriage were enacted by synods or councils that took place in the Middle Ages and in early modern times. The takanah, revision, against polygamy is ascribed to Rabbenu Gershom (ben Judah, 950-1028). (See Or Zarua (Yitzhak ben Mosheh of Vienna, c. 1180-1250), She’elot U-teshuvot, responsum no. 182.) Polygamy had not been common among Jews for centuries, especially after Rabbi Ammi in the third century laid down the rule that no one may marry a second wife against the will of the first wife (Talmud Bavli, Ketubot 65a). Nevertheless, there must have been some specific instances of polygamy that prompted the prohibition. It was officially binding only on French and German communities represented at the synod, but the prohibition achieved such wide respect that Spanish Rabbis often felt compelled to enforce the takanah in respect to German Jews who came within their jurisdiction.
From the perspective of Jewish advocates of homosexual marriage, an optimal solution to this issue would be for a “synod” (or a Jewish law committee) to issue a takanah that sanctions homosexual marriage. Such a takanah would reframe the issue of penetration between males and determine that it is no longer an “abomination.” Presently, there is no coherent Jewish legal structure in respect to the marriage of two men; Jewish law in respect to homosexual intimacies only suggests recommended values and behavioral patterns.
In addition to the major decisions by synods, there is the vast literature of the responsa, legal opinions by individual Rabbinic authorities, referred to above. The method of these responsa changed over time from their first inception in the eighth century to present-day legal opinions on Jewish law (Haas, 1996). Thus, for example, early responsa will cite the Hebrew Bible and the Talmud exclusively. For these early writers the law consisted only of the written and oral traditions. By the Middle Ages, Rabbis cite not only the bible and the Talmud but also other Rabbinic literature. With few exceptions, a further shift is to be noticed at the dawn of the modern era that continues into our own time. For approximately the last four centuries, the authors of the responsa have been citing not only Rabbinic sources but non-Rabbinic sources as well.
The major purpose of an article by Gordis (1979) is to document that the halakhah has a dynamic history. Gordis utilizes the Hegelian terminology that for Jewish law past tradition constitutes the thesis, contemporary life is the antithesis and the result of these two becomes the new synthesis. He characterizes the halakhah as a dialectical process, continuity with the past and change that is influenced by the present. In theory and in practice, when applied to homosexual marriage, this position sounds like a viable, continuous system. However, most of the examples furnished by Gordis, and the other examples listed in this article, occurred many centuries ago; this does not demonstrate that halakhah is dynamic in the case of homosexuality.
The halakhah grew as a result of external and internal pressures. External conditions were social, economic, political, or cultural, and internal pressures were new ethical insights and attitudes. For example, social conditions eliminated the sotah (the testing of a wife suspected of adultery). The question remains, whether halakhah today is responding to the social reality of homosexuals. The Conservative and the Orthodox movements presently do not sanction homosexual marriage. Approximately 19 centuries ago, economic conditions resulted in the halakhah developing the prosbul of Hillel. It can be argued that the halakhah no longer has the flexibility and responsiveness that it once had.
The modern Conservative movement has attempted to remedy this in part by revising some of the onerous provisions in the ketubah (marriage contract); for example, the Lieberman codicil to a Conservative ketubah provides for the contingency of an automatic get (bill of divorce) and the power to annul the marriage. Some scholars contend that the Conservative movement is attempting to deal with the entire body of halakhic decision making on an ad hoc basis rather than restructuring and reevaluating the underlying premises of the law. Novak (1976) concisely states the basic problems of the Conservative movement—which is located between Orthodoxy on the right and Reform on the left—are comparable to that of any movement that is subjected to a centrist dilemma of credibility. The question may be asked: Can Conservative Judaism objectively justify its own claims to religious coherence? Often Orthodox Jews attack the Conservatives’ reliance on the inherent necessity of historical development in Judaism that undercuts the revealed authority of the halakhah. Reform, on the other hand, has abandoned the binding nature of the Jewish legal system. Similarly, the Reconstructionist movement does not accept rigid boundaries of Jewish law. According to Novak, a legal system may be defined as stable if it is able to provide a set of rules that transcend any particular case; a legal system is flexible, if it presents several rules that may be combined in variable ways in order to decide new circumstances. An additional factor in such a legal system would require that it be open, in that the adjudication of a new class of cases leads to the inference of rules previously unexplored. Novak concludes that Orthodoxy has stability but lacks flexibility, while Reform has the flexibility but lacks stability; however, Conservative Judaism combines these two essential elements. Ben Menahem (1996) differentiates halakhah from the Western conception of law, which has laws belonging to a unified system. In contrast, Ben Menahem contends that the halakhah is not such a unified system. In respect to halakhah, he finds a “pluralistic attitude towards the sources of Jewish law,” while at the same time rejecting the view “that any valid application of the law must be justified by reliance upon the sources which are regarded, by the rules of the system, as the authoritative one” (p. 421).
Siegel (1977a) supports the idea that Jewish law is an expression of the covenant between God and the people of Israel. Furthermore, it is a covenantal obligation to practice justice and compassion, which leads him to conclude that the authority of any norm that results in unethical outcomes, cannot be sustained. In respect to changes in marriage customs, Siegel makes the point that the marriage of a divorcee and a male descendant of a kohen (priest), which is prohibited in an Orthodox setting, is accepted by Conservative Judaism, because the notion of a divorcee being flawed and, therefore, not marriageable to a kohen (priest) does not concur with contemporary ethical norms. Siegel also justifies the right to reject and to modify halakhah, because the specific formulation of the laws may not be God’s revelation; that is, they were transmitted through a human filter. According to Siegel, Jewish laws are responses to revelation and they are not the precise content of revelation; he suggests that the ethical component of Judaism may take precedence over the legal component of Judaism, if they are in conflict. The problem inherent in these approaches of Conservative Judaism is how one is to determine just when that conflict occurs. Is the debate over the marriage of two males in Judaism part of this conflict? It appears that any approach to the rewriting of a ketubah may be quite subjective and arbitrary. (See, e.g., the textual changes in regard to a ketubah in Gordis, 1983.) Does the halakhic system in either the Conservative or the Orthodox world provide an individual with the option to reject certain provisions of the law which he or she determines to be unethical, or no longer justifiable? Can a legal system still retain its authority, if such an option is unavailable?
Rabbi Isaac Klein (1975), who was active in the Conservative movement in the 20th century, routinely cited medical and technical literature when he grappled with such issues as the kashrut, the ritual fitness, of cheese and Jell-O. Similarly, in order for homosexual marriage to be sanctioned within Jewish law, a reliance upon medical and technical literature could also be utilized. Since Jewish law should be dynamic (see, e.g., the essays in Jacob and Zemer, 1991), and since it has changed over time, perhaps the law in respect to marriage could utilize insights from science and sociology to develop a Jewish approach to homosexual weddings that would be consistent with the halakhic stipulations pertaining to a Jewish marriage. Since the term kiddushin (marriage) cannot be applied to homosexual marriages according to traditional Jewish legal sources, it would need to be reframed and a creative selection of legal remedies would also be required, including the above-mentioned scientific investigation that homosexuality may be genetically determined. We would like to point out that one may consider an argumentum ex silentio in respect to homosexual marriage: Jewish law in Rabbinic sources does not mention the marriage between a man and a man; neither is this type of marriage listed under the prohibited categories of marriage cited below. Due to the absence of case precedent of homosexual marriage in Jewish law we will have to address a case of first impression.
Kiddushin: A Short Definition of Marriage in Judaism
In Judaism, marriage has been viewed as God’s plan for humanity; thus, it is an institution with cosmic significance. It is considered a sacred bond between a man and a woman, legitimized through divine authority. The usual purpose of a Jewish marriage is to create a family and to perpetuate society. Reciprocal marital rights and duties are designed to sustain the marriage. In the Hebrew Bible, marriages were arranged by the fathers; the sections dealing with the patriarchs and the matriarchs of Israel are filled with examples of finding the right wife for a son or the right husband for a daughter. The marriage involved a mohar (payment) by the bridegroom or, rather, the father of the bridegroom paid this price in money and/or in kind to the father of the bride. A period of engagement preceded the marriage and the wedding festivities lasted for a week. The marriage ceremony was based upon the rules regulating transfer of property rights. Marriage in Biblical Israel was an alliance between two families or clans for the purpose of producing legitimate heirs. Women could not initiate a divorce and polygamy was permitted. In the post-biblical period, in Rabbinic literature, the payment by the bridegroom developed into a different type of legal transaction. The wife was awarded more protection when the institution of ketubah (marriage contract) was established. The ketubah set forth the rights of the wife to monetary payments upon termination of the marriage by divorce or death.
According to the Mishnah, a wife, but not a husband, could be acquired by money, deed, or sexual intercourse. Additionally, during Mishnaic times, the private civil procedure of marriage was changed into a public religious ceremony, which required the presence of a prayer quorum (minyan). In Talmudic Judaism, the marriage occurred in two acts: betrothal (erusin or kiddushin) and nissuin (marriage ceremony). For the purposes of our investigation, it is important to specify the differences between these two acts, because some of the steps outlined in the following are part of modern “commitment ceremonies,” but not of “weddings” of two homosexual men. The betrothal part of Jewish marriage has two stages: (1) the serious commitment of two people to marry (shiddukhin) and settling the terms of the financial obligations of the future spouses by their parents; (2) the erusin (betrothal) part, which is also called kiddushin (sanctification). The two terms utilized in reference to the latter part of the marriage, erusin and kiddushin, are at times confusing, because nowadays they are combined in one ceremony. Furthermore, they represent a critical area of dispute in regard to homosexual Jewish weddings.
In order to clarify this matter, we must turn to the Talmudic usage in respect to the various legal and ritual obligations resulting in a marriage. The terms negotiated by the parents during shiddukin were written down in a document; this document in effect constitutes a modern prenuptial agreement. The acceptance of the obligation to marry was separated into the symbolic acceptance of the agreement (acquisition, kinyan) and the writing of terms which included setting the marriage date. Kiddushin, the betrothal ceremony, indicated that the bride was forbidden to all men except her husband. Nowadays, traditional Jewish weddings between a man and a woman practice kiddushin immediately preceding nissuin; during the kiddushin part, the bridegroom places a ring on the bride’s extended finger and declares: “Behold, with this ring you are consecrated to me according to the law of Moses and Israel.” This is followed by blessings and the nissuin (marriage ceremony), involving seven blessings. (Falk, 1966, p. 43, mentions that erusin and nissuin were combined in the Middle Ages.)
The Jewish marriage “contract,” (ketubah) is presently read before the above-mentioned seven blessings and is part of the wedding ceremony (nissuin). The forms of this document have evolved over millennia (at least since the first century of the Common Era) and there are major variations between the different Jewish denominations. Slight variations are even found between different Orthodox groups. Conservative Judaism uses the traditional wording of the document, but the ketubah frequently incorporates a stipulation for the contingency of divorce procedures in front of a Rabbinical court of three observant Jews, in the event the husband refuses to initiate Jewish divorce proceedings. The Reform and Reconstructionist movements often use documents that do not fulfill the requirements of a legally binding ketubah; these texts are promises or “wedding vows” written by the couple.
Following the pattern of change that has occurred in respect to the content of the ketubah, we have incorporated changes into the generally accepted Jewish wedding contract—the traditional version—in order to implement a marriage (kiddushin) between two males. The husband and his husband (the case of two grooms versus a groom and a bride) are publicly sanctified to each other in an exclusive relationship between two Jews. The declaration of marriage includes the phrase that the homosexual marriage is being carried out by the law of Moses and Israel.
Since marriage between two Jewish males is viewed by us as a Jewish marriage worthy of kiddushin, almost everything that is stipulated in respect to heterosexual marriage should apply to homosexuals. In Jewish law one finds the categories of prohibited and void marriages. An example of a prohibited and void marriage is the “incestuous” marriage between persons related to one another within the categories of prohibited kinship (based on Leviticus 18:6; Talmud Bavli, Kiddushin 67b). The category of “prohibited kinship” pertains to one’s mother/father, brother/sister, and daughter/son. This should apply to the marriage of two Jewish homosexuals as well; a homosexual cannot marry within gillui arayot, an incestuous relationship.
The marriage between a man and the sister of his wife is void under Jewish law while the wife is still alive. In order to be consistent with this principle of a void marriage, in terms of homosexual marriage, the brother of his husband would be forbidden, as long as his husband is alive. The marriage to a man’s brother’s widow and to his brother’s divorced wife is void under Jewish law. The punishment of karet, exclusion from the Jewish community (Shulhan Arukh, Even Ha-Ezer 15:22), is applicable to these void marriages, the exception is the requirement of levirate marriage. In terms of homosexual marriage, the marriage of a man to his brother’s widower or to his brother’s divorced husband, assuming the brother himself was in a homosexual marriage, would be void. However, the question of levirate marriage that has the purpose of producing offspring for the deceased, who died childless, could also be raised in homosexual marriage. In this case, cloning of the brother’s widower or adoption of a child together with the brother’s widower would be an option.
There are many other categories of Jewish marriage that are either considered prohibited, void, or both (Further cases of invalid marriages are mentioned in the Shulhan Arukh, Even Ha-Ezer 15.) Under Jewish law the marriage between a man and a married woman is void. Similarly, the homosexual marriage between a man and a married man, if it occurs, would be void. Thus, no divorce document is necessary. According to Jewish law, the marriage between a Jewish man and a non-Jewish woman or the marriage between a Jewish woman and a non-Jewish man is void (Even Ha-Ezer 44:8). In order to be consistent with this principle, a homosexual marriage between a Jewish man and a non-Jewish man would also be void.
Certain marriages that do not constitute gillui arayot, incestuous relationships, are also prohibited in Jewish law. If they occur, however, they are considered valid. Examples include: incest of a secondary degree determined by Rabbinical enactment and the marriage with a divorced woman or widow which is prohibited within 90 days from her acquiring the status. The 90 day waiting period after a previous marriage had terminated either by death or divorce was necessary to determine a pregnancy. This 90 day rule is probably not applicable to homosexual marriages. However, the case may be different, in the event of scientific developments, for example, if a man was capable of cloning himself in a previous relationship for the purposes of procreation. If Reuven cloned himself with Shimon and then decided to marry Abraham, do they have to wait for ninety days? We assume that they would have to wait to determine with which man the child was cloned.
In heterosexual marriage, a man is prohibited to marry another woman while the marriage continues to exist. Although such a marriage is prohibited, Jewish law has considered such cases. By Rabbinic enactment, in such a case, the second marriage is valid for the limited purpose for enforcing the terms of the ketubah, but nevertheless the divorce of the second marriage is enforced. In a homosexual marriage the legal ramifications would be similar; a homosexual man who is married and marries a second person has to divorce the second person and pay the requirements of the ketubah to the divorced spouse. A divorced woman, who has remarried and her second marriage was terminated by divorce or death, is prohibited to remarry her first husband based on a prohibition in the Torah (Deuteronomy 24:4). By analogy, a divorced man, who has remarried and his second marriage to another man was terminated by divorce or death, would be prohibited to remarry his first husband. Still another scenario within heterosexual marriages prohibits a male descendant of a kohen (priest) from marrying a divorced woman, a zonah or a widow; such marriages are prohibited but nevertheless they are valid, if they occur. These legal principles should apply to homosexual marriages as well, although on occasion it is difficult to determine whether or not one is a descendant of a kohen (priest).
Jewish law in regard to issues of homosexuality divides along denominational lines. The Reconstructionist Rabbinical College was the first to ordain openly declared homosexual rabbis, starting in 1984, and presented their rabbis with the option of officiating at homosexual marriages in 1993. The Reform movement has been ordaining openly declared homosexual Rabbis since 1990. Several Reform Rabbis have been performing same sex-ceremonies since the 1970s, and in 2000 the movement passed a resolution permitting Reform rabbis to officiate at such ceremonies. Since 2007 The Jewish Theological Seminary (Conservative movement) has started to accept openly gay and lesbian candidates; the Orthodox do not ordain openly homosexual clergy and do not permit homosexual marriage.
Orthodox View
The limited amount of Orthodox texts on homosexual marriage is a direct result of their reluctance to discuss this issue and the firm stance that they have always taken against homosexual acts. In an article in the Journal of Family Law, the Orthodox opinion condemning homosexuality is asserted by Orbach (1975-1976). Another orthodox Rabbi, Lamm (2004), suggests that homosexuality should be compared to a “drug addiction.” A negative view of homosexuality from a psychological perspective was also voiced by Weishut (2000). It should be noted that some Orthodox authorities advocate celibacy as the final option for homosexuals (). Stern (2004) believes that homosexuality is a sin. He states, “It is one thing to tolerate sin in the name of toleration and liberty; it is quite another to foster the impression that a sin is no sin at all” (p. 127). Stern tolerates homosexuals as long as they do not engage in homosexual acts. Based on the bible, homosexual behavior is considered to be a sin, and one should not overlook or tolerate sin (p. 127). Stern maintains that it is a moral issue, which implies that he views homosexuality as a reversible condition, and he writes that allowing homosexual marriage undermines the morality of society. Stern further explains that at Yeshiva University, there is a “married only” policy that discriminates against homosexuals by not allowing them to live in the buildings that house married couples. This is a blatant form of discrimination against homosexuals because they are not provided with equal housing opportunities.
Conservative View
The Committee on Jewish Law and Standards (CJLS) has been deciding Jewish legal issues for the Conservative movement since 1927; the law committee works in conjunction with the Rabbinical Assembly (RA), the association of Conservative Rabbis. A member of the RA, Schwartz (1978, 1988), described homosexuality as one of the practices that endangered the continuity of Judaism and therefore Jewish texts outlawed such practices. Furthermore, homosexuality is in breach of the ideal of a Jewish family. However, Schwartz is concerned about Jews who want to maintain their Jewishness and their homosexuality and he expresses his wish that the Conservative movement be welcoming to homosexuals, although he strongly supports the position that “Judaism cannot sanction homosexuality” (Schwartz, 1978, p. 114). He wishes to protect the individual rights of homosexuality, while not sanctioning their sexual behavior; “equating a defense of homosexual rights with an oblique sanctioning of their sex is a total mistake” (p. 114). In our opinion, this statement, presented during the Rabbinical Assembly Meeting in 1978, calls for social justice but not for a deeper consideration of homosexuality as a genuine expression of human sexuality.
Later, the discussion of homosexuality in the Conservative movement was undertaken within the framework of human sexuality (see, e.g., Dorff, 1996). Several responsa on homosexuality have been approved by the CJLS; these responsa were used to support a consensus position. The CJLS consensus position is, notwithstanding the current state of scientific, psychological, and biological information in respect to the nature of homosexuality, homosexual relationships nevertheless are not considered to be in accord with halakhah (Jewish law). However, more lenient readings of the halakhah need to be noted and the potential of future legal novellae discussed if new information concerning homosexuality may be discovered. The Conservative movement’s consensus position is as follows: (a) the Conservative movement does not ordain homosexuals as Rabbis or cantors, because these positions are considered to be the most important halakhic role models; (b) the Conservative movement does not approve of homosexual marriages or commitment ceremonies; (c) the Conservative movement allows homosexuals to participate in synagogue life and the larger Jewish community, but it will not marry two homosexuals. In 1992, the Committee on Jewish Law and Standards of the Rabbinical Assembly adopted a responsum that stated in part, “We will not perform commitment ceremonies for gays or lesbians” (Dorff, 1992).
Generally, the Conservative movement views homosexuality as the non-fulfillment of certain areas of divine commandments. Since homosexuals may be observing the other commandments, homosexual Jews should not be treated in any different manner than one would treat Jews who are not fully observant, such as those who drive on the Sabbath to places other than a synagogue or those who do not keep kosher, for example. Thus, Conservative Judaism affirms that homosexuals may lead prayers, read from the Torah during the worship service, and may serve as youth directors or Hebrew school teachers.
Additionally, the RA has approved the following proclamation affirming the inherent dignity of all homosexual Jews:
Whereas Judaism affirms that the Divine image reflected by every human being must always be cherished and affirmed, and
Whereas Jews have always been sensitive to the impact of official and unofficial prejudice and discrimination, whenever directed, and
Whereas gay and lesbian Jews have experienced not only the constant threats of physical violence and homophobic rejection, but also the pains of anti-Semitism known to all Jews and, additionally, a sense of painful alienation from our own religious institutions, and
Whereas the extended family of gay and lesbian Jews are often members of our congregations who live with concern for the safety, health, and well being of their children, and
Whereas the AIDS crisis has deeply exacerbated the anxiety and suffering of this community of Jews who need in their lives the compassionate concern and support mandated by Jewish Tradition,
THEREFORE BE IT RESOLVED that we, the Rabbinical Assembly, while affirming our tradition’s prescription for heterosexuality,
- Support full civil equality for gays and lesbians in our national life, and
- Deplore the violence against gays and lesbians in our society, and
- Reiterate that, as are all Jews, gay men and lesbians are welcome as members in our congregations, and
- Call upon our synagogues and the arms of our movement to increase our awareness, understanding and concern for our fellow Jews who are gay and lesbian.” (Rabbinical Assembly, 1991, p. 275)
Although in 1992 the CJLS upheld the biblical injunction against homosexual behavior, the committee emphasized the acceptance of homosexuals in Conservative congregations. However, openly homosexual Rabbis were not ordained (“Inside the Aron Kodesh,” 2002). The CJLS has not approved any form of homosexual Jewish weddings, but the committee has been seriously debating the issue of homosexual rabbis. In this debate, the CJLS in 2005 reaffirmed an inclusive approach to homosexuals, which means that homosexuals have the same religious obligations as defined by Conservative halakhah as other (heterosexual) Conservative Jews. The CJLS promotes the idea of extending synagogue membership and leadership roles to homosexuals.
A press release (April 11, 2005; see www.rabbinicalassembly.org) by the CJLS describes kiddushin as “the sanctification of love in heterosexual marriage” which is viewed as a centerpiece of Jewish life. In our opinion, the above Conservative position incorrectly relegates kiddushin as only appropriate in a heterosexual marriage. In our view kiddushin could be appropriate within a setting of a homosexual marriage. The CJLS recognizes that heterosexual marriage is an ideal that is not a reality for some Jews.
Within the Conservative movement the debate continues. The questions of same-sex commitment ceremonies and ordaining homosexual rabbis were brought before the CJLS which again upheld the biblical injunction against homosexuality (June 9, 2005). However, Rabbi Elliot Dorff, Rector of the University of Judaism, in our view, indirectly raises the possibility of kiddushin within a homosexual marriage. Dorff (quoted in Gruenbaum Fax, 2005, p. 1) comments on the Biblical injunction in Leviticus: “… we should understand those verses differently from our ancestors, who understood them to prohibit all homosexual sex. We should understand them to prohibit only promiscuous, oppressive or cultic sex, but loving monogamous homosexual sex would be outside of those verses and would be something we want to sanctify.” Dorff’s comment of sanctifying such a loving, monogamous relationship raises the possibility of kiddushin. In 2006 the CJLS (Rabbinical Assembly, 2006) issued a press release stating: “Rabbis Dorff, Nevins and Reisner, while retaining the Torah’s explicit prohibition, as understood by the rabbis banning male homosexual intercourse, argued in ‘Homosexuality, Human Dignity and Halakhah’ for the full normalization of the status of gay and lesbian Jews. Under this ruling, gay and lesbian Jews may be ordained as clergy and their committed relationships may be recognized, although not as sanctified marriage.” The Conservative movement offers homosexual Jews the opportunity to participate in religious communities and to participate in commitment ceremonies. We perceive that the Conservative movement may adopt a more lenient position in respect to homosexual marriage.
Reform/Progressive View
The Central Conference of American Rabbis (CCAR) welcomed the Massachusetts Supreme Court ruling that same-sex couples are legally entitled to marry one another under the state constitution (November 18, 2003; Goodrich v. Department of Public Health, 2003); the CCAR furthermore saw this ruling as an important step toward full equality for homosexual Americans. The reasoning was put forward by the former CCAR President, Rabbi Janet Marder. Rabbi Paul Menitoff, the Executive Vice President of the CCAR, further stated that this ruling confirmed the Jewish commitment to the fundamental principle “that we are all created in the divine image.” (The original statement was made by Dale Panoff at the Central Conference of American Rabbis, 2004.)
In the past, the CCAR struggled with the rights of homosexuals in respect to their right to marry under Jewish law; mainly, the CCAR advocated changes in civil law pertaining to same-gender relationships. (See the responsum by Freehof, 1973, in this collection of statements in which he rejects homosexuality; see pp. 31-33.) The CCAR adopted several resolutions that supported this issue. As early as 1977, the CCAR had adopted a resolution requesting legislation that would decriminalize homosexual acts between consenting adults; this resolution also called for an end to discrimination against homosexuals and to the development of programs to implement this agenda within Reform Judaism (CCAR, 1977). A 1986 responsum on “Homosexual Marriage” (Jacobs, 1987, no. 201) concluded that a rabbi cannot participate in the marriage of homosexuals. In 1990, the position of the Ad Hoc Committee on Homosexuality and the Rabbinate was endorsed by the CCAR (1990); this paper advocated that all Rabbis, regardless of their sexual orientation, be provided with the opportunity to serve as Rabbis, be admitted to the CCAR after graduating from the Reform movement’s seminaries, the Hebrew Union College-Jewish Institution of Religion campuses. The report of the Ad Hoc Committee noted that there were differing opinions within the committee in respect to kiddushin (Knobel, 1991, p. 172). In 1996, a CCAR resolution advocated that homosexual couples should have fully equal access to civil marriage and furthermore opposed the legal prohibition of homosexuals entering into a civil marriage (CCAR, 1996).
The question whether homosexuals may marry under Jewish law is partially dependent on whether or not a particular denomination within Judaism permits or prohibits their Rabbis to officiate at such a wedding ceremony. Responsa issued by the CCAR Responsa Committee specifically addressed the problem of whether a homosexual relationship may be defined as kiddushin, a Jewish marriage (CCAR Responsa Committee, 1998). The argument was made that it is “an offense against the foundations of the universe to lie carnally with another male” (p. 10). In response to this contention, the question should be raised within the Reform movement, why accept certain biblical injunctions concerning prohibited sexual behavior and at the same time reject the biblically mandated dietary laws? It appears that at this time some members of the Responsa Committee were engaged in a selective and arbitrary enforcement of the mitvot (the commandments). However, the same Responsa Committee recognizes “the possibility of committed, stable, monogamous, and loving relationships between members of the same gender” (p. 11). They also do not deem homosexual relations as a sin. If it is not a sin, it should not be punishable and should not be atoned for on Yom Kippur (Day of Atonement). It was also argued that, “It no longer makes sense to single out homosexuals for distinctive treatment when we acknowledge that we are liberals …” (p. 13).
The majority decision in this particular Responsa Committee was not based on Talmudic reasoning; nevertheless, the concept of a homosexual marriage was rejected. By a majority of seven to two, the committee concluded that it should reject kiddushin entirely within a context of a homosexual marriage. It should be noted that several law committees within the various Jewish denominations make their decisions based on a majority, for example, the RA (see Gordis, 1988). and the CCAR. The Reform Rabbi Zemer voted with the majority to oppose homosexual marriages in 1997, although he previously wrote a responsum to present the view of the minority and to reconsider the issue (Zemer, 1991). He suggests that, “if a same-sex couple and the rabbi must choose between a same-sex marriage or a commitment ceremony, and cannot avoid either alternative, they should choose the latter. The marriage ceremony can be considered a violation of Jewish Law” (p. 163). Based on our review of the issue of homosexual marriage in Judaism, we find that, although there may be distinctions between a homosexual marriage ceremony and a commitment ceremonies, they both nevertheless may be in violation of halakhah. This is all the more reason why halakhah should be modified or reinterpreted to sanction such ceremonies.
An ad hoc committee within the Reform movement further contributed to the development of the concept of kiddushin and homosexual marriage in 1998 (CCAR, 1998); this committee was concerned with human sexuality, and issued a report that mentioned that kedushah (which is related to the concept of kiddushin) may be present in a homosexual relationship, provided it is a committed relationship between two Jews. This suggestion was supported by a majority vote.
A major shift in the discussion of the applicability of the concept of kiddushin to homosexual marriages occurred in 2000. At its annual convention on March 29, 2000, the CCAR passed a resolution under which rabbis may officiate at a Jewish ceremony of same-sex partners. Since individual rabbis of the Reform movement have the liberty to decide what type of ceremony they will perform, the 2000 resolution may include the possibility of performing not only commitment ceremonies and abbreviated wedding ceremonies for homosexuals but also the performance of a regular wedding ceremony for homosexuals that is based on the concept of kiddushin. (Commitment refers to a commitment of love (brit ahavah), for such a document see, e.g., Adler, 1999, pp. 214-217, which includes the English and Hebrew text of “B’rit Ahuvim Lovers’ Covenant” and “Provisions for the Covenant.” See also Solomon, 2002, pp. 57f.) It is the individual rabbi’s decision whether or not to perform such ceremonies. This may be compared to intermarriage ceremonies in Reform Judaism; Reform rabbis are not compelled to officiate at interfaith weddings, it is their own decision to officiate, and they may refuse to do so. However, Reform rabbis in some cases were persuaded by the lay members of a congregation to officiate; in other cases, rabbis were not retained to serve the congregation, because they considered a ketubah between an interfaith couple to be in violation of Jewish law. One may speculate that a congregation that wishes to offer full Jewish weddings to homosexuals, may only engage a rabbi who would perform such ceremonies. One could imagine that pressure would be exerted upon individual Reform rabbis to officiate at homosexual weddings. The entire issue of individual rabbis’ decision making falls under the category of mara d’atra (local Rabbinic authority); this may accelerate the process of fully Jewish wedding ceremonies for homosexuals to supersede the already existing “commitment ceremonies.” Set forth below is the text from the 2000 CCAR resolution:
WHEREAS, justice and human dignity are cherished Jewish values, and
WHEREAS, in March of 1999 the Women’s Rabbinic Network passed a resolution urging the Central Conference of American Rabbis to bring the issue of honoring ceremonies between two Jews of the same gender to the floor of the convention plenum, and
WHEREAS, the institutions of Reform Judaism have a long history of support for civil and equal rights for gays and lesbians, and
WHEREAS, North American organizations of the Reform movement have passed resolutions in support of civil marriage for gays and lesbians, therefore
WE DO HEREBY RESOLVE, that the relationship of a Jewish, same gender couple is worthy of affirmation through appropriate Jewish ritual, and
FURTHER RESOLVED, 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, and
FURTHER RESOLVED, that we call upon the CCAR to support all colleagues in their choices in this matter, and
FURTHER RESOLVED, that we also call upon the CCAR to develop both educational and liturgical resources in this area.”
If rabbis officiate at Jewish homosexual marriages, one may raise the complicated issue whether they may only perform these ceremonies if the state or city permits them. The Jewish ceremony will only constitute a “marriage,” if civil law permits homosexual marriage, since rabbis officiate in some states as justices of the peace and as such they sign valid civil documents in addition to the ketubah. A rabbi may decide to marry two homosexuals in a Jewish ceremony and not be able to sign the civil license.
The Goodrich decision by the Massachusetts Supreme Court recognized that a state marriage licensing statute restricting the issuance of a license to two people of the opposite sex violates the equal protection provisions of the Massachusetts Constitution and granted same-sex couples the right to marry as it applies only to civil marriage licenses, not to religious weddings, such as Jewish weddings. Even if a jurisdiction permits civil marriage between homosexuals, one cannot compel a Reform rabbi to marry homosexual partners who wish to be married in a Jewish ceremony, because the Reform rabbi may decline to marry a homosexual couple. Obviously, in these cases the laws of a given state or jurisdiction interposed no objection to same-sex marriages, or the requisite marriage license would not have been issued. Empowered by the civil authorities to sanctify the union, and satisfied that the religious conditions of Judaism have been met, the rabbi who solemnizes the homosexual marriage would be doing no more than duty requires of him or her.
Reconstructionist View
The Reconstructionist movement has rejected the traditional halakhic view in all areas relating to the issue of homosexuality; all restrictions on homosexuality are deemed to be null and void. Consequently, the Reconstructionist movement ordains homosexual Jews as rabbis and cantors. The Reconstructionist Rabbinical Association permits Jewish homosexual marriages and homosexual intermarriages (Reconstructionist Commission, 1993). A summary of a Reconstructionist approach to homosexual marriage and the relationship between homosexual marriage and civil rights has been outlined by Alpert (2003), who makes the case that same-sex marriage is a religious value, because it includes a stable and committed relationship. Furthermore, she acknowledges that same-sex couples are motivated by the same reasons as heterosexual couples to marry within the Jewish tradition (p. 37).
A statement by the Reconstructionist movement proclaims:
We were the first movement to publicly address this issue in our 1988 report on homosexuality. In addition we were the first movement to accept openly gay and lesbian students into the RRC (Reconstructionist Rabbinical College). We retain an unwavering commitment to forming inclusive communities, welcoming to gay, lesbian, bi-sexual and transgendered Jews, as well as multicultural families, Jews of color, and other groups traditionally excluded from full participation in Jewish communal life. Issues relating to the gay and lesbian family are included in religious school curricula. Our Rabbis are free to perform same-sex commitment or marriage ceremonies if it is their practice to do so. (The Reconstructionist statement on same-sex marriage may be viewed at: http://www.Jrf.org)
A Reconstructionist wedding ceremony for same-sex couples utilizes a ketubah; however, these particular marriage contracts do not follow the traditional stipulations and some of them may, therefore, become disqualified as valid Jewish wedding documents by other Jewish denominations.
Conclusion: “Two Men Under One Cloak”
As we argued above, there are no unified approaches in Judaism as to what the law mandates concerning homosexual marriage. Frequently, in Rabbinic literature there is an alternative opinion that may be comparable to a modern “minority opinion.” This practice of recording an alternative opinion is found in the case of two men sharing the same bed: “R. Judah says: an unmarried man may not herd cattle, nor may two unmarried men sleep under the same cloak. But the Sages permit it.” (Mishnah, Kiddushin 4:14). This passage states that the sages permit sleeping together under one blanket; this means that two men sleep in one bed, in one house, although the exact circumstances of their cohabitation are not elucidated in the text. A commentary on this passage by Ovadiah di Bertinoro (second half of the 15th century, Italy) states: “the halakhah is according to the Sages, because Israel is not suspected of homosexuality (zakhur)” (Kehati, 1977, ad. loc., states that the halakhah is according to the Sages.) The Tosefta, a parallel document to the Mishnah, states: “Rabbi Judah says: an unmarried man may not herd cattle, nor may two unmarried men sleep under the same cloak. The Sages said: Israel [a Jew] is not suspected of this” (Tosefta, Kiddushin 5:10; Talmud Yerushalmi, Kiddushin 66c).
The motivation for this explanation may be denial that Jews actually engaged in homosexual acts; sexual relationships between two men and any implication of establishing a same-sex household are inconceivable for Jews (Satlow, 1995, p.209). This denial was repeated numerous times in Jewish legal literature. However, the alternative opinion by the sages that two men may sleep under the same cloak is stated and transmitted in Rabbinic literature. The reason that the sages’ opinion is explicitly noted is that in Talmudic cases, in which the inability to decide on the merits of the case occurs, this inability is addressed by recording both opinions.
Advocates and opponents of same-sex marriage are in agreement about what is at stake: granting homosexual marriage equal status to heterosexual marriage. In respect to civil ceremonies, supporters say marriage is the only way to guarantee the constitutional right of equal protection under the law. Opponents claim that homosexual marriage will lead to nothing less than the unraveling of society. Social, religious, and legal arguments are intertwined in this debate. We tried to focus on the Jewish legal issues which are simultaneously religious issues. In fact, the debate in Judaism is often relegated to religious-based values; homosexual couples should be afforded the same legal protections and benefits as anyone else. If they are not given the same protection, then one religious definition of marriage over another could have an impact on the availability of governmental benefits; this raises the question whether such distinctions based upon different religious definitions of marriage would be unconstitutional. This could be in violation of church (synagogue) and state separation.
In opposition to these views, Dennis Prager (2005), at the University of Judaism—now referred to as “American Jewish University”—(which ordains Conservative rabbis), holds the position that the question has no connection with civil rights issues, since homosexuals are permitted to marry people of the opposite sex like everybody else. Opponents of same-sex marriage draw parallels to polygamy and incest, while advocates compare it to the ban on interracial marriage, which was first lifted in California in 1948. In order for the homosexual movement to continue to gain acceptance, they must be accorded equal treatment, even if it is a struggle. Details such as marriage contracts must be changed to address the needs of the specific parties, but it would be a small price to pay for sexual equality within the population. (A review of the Rabbinic sources in respect to homosexuality and homosexual domestic partners is found in Frankfurter & Ulmer, 1991.)
In several states, marriage between homosexuals is in the process of being approved. A similar process is concurrently transpiring in several Jewish denominations. There are rabbis, mostly Reform leaders, who support homosexual marriages. Dev Noily (personal communication, June 17, 2005), a Rabbinic intern states,
Same-sex marriages were “legal” for a brief period in San Francisco in 2004, but those marriages have been invalidated by the courts. Appeals are pending which, we hope, will pave the way for legal same-sex marriage statewide, but the San Francisco marriages would not carry through—those couples would need to do another civil ceremony to obtain legal recognition … Some rabbis have a “single standard” policy by which they offer all couples the same services and do not offer mixed-gender couples legal services which they are not permitted to offer same-gender couples.
In some instances there have been homosexual wedding ceremonies that have included kiddushin, but they are not binding under civil law. The “civil unions” that have been created do not provide couples with the legal benefits of a valid marriage and hold too many similarities to the “separate but equal” doctrine. Alpert (2003, p. 42) asserts that “clergy are not compelled to perform any marriage that their denomination deems inappropriate.” She goes on to state that “religious leaders have taken the initiative themselves of performing same-sex ceremonies over the past decade.” While civil union ceremonies may be enacted with completely good intentions, it seems in our opinion that they may be a step in the wrong direction. The ultimate priority should be for marriage ceremonies, not civil unions, and until this happens homosexuals will be at a considerable religious and civil disadvantage. If two Jewish homosexuals have committed themselves to each other as partners in life, they should have a right to marry under Jewish law; Judaism should not deny a homosexual the comfort and consolation of his/her life partner.