by Peter S. Knobel - August, 1999

[Click on numbers to see footnotes.]

The goal of this paper is to demonstrate the transformation of marriage in Reform Judaism from its classical form as kiddushinrooted in property lawinto an egalitarian partnership Brit Ahuvim, A Covenant of Lovers, a name coined by Rachel Adler. Dr. Adler makes explicit what has gradually been transpiring in Reform Judaism’s understanding of the marriage. Reform Judaism has reformulated the ceremony both in word and in symbolic action to recognize that words and symbols that are identified with traditional Jewish marriage do not accurately reflect contemporary Progressive Jewish marriage. Progressive Judaism has spiritualized the term kiddushin and mutualized the act of kinyan.

A primary ethical principle in Reform Judaism is the egalitarian principle. Rooting itself in the first creation narrative, humankind (adam) is created in the image of God both male and female are identified as adam.The halacha must be changed to reflect commitment of male female equality.If there is one agreed upon principle in Reform Judaism which is beyond compromise, it is the egalitarian principle. In marriage it means that husband and wife have equal worth and equal responsibility. At least in theory there are no predetermined role expectations or limitations.

In Judaism, sanctification is an act of separation which causes one to be in God’s presence and/or to live in relationship to God. Imitateo dei (the imitation of God) is a major mode of sanctification. It is a reciprocal process.

You shall sanctify yourselves and be holy for I am the Eternal your God. You shall faithfully observe my laws. I the Eternal make you holy.

In Reform Judaism, kedusha is primarily an ethical category but not exclusively an ethical category.For example, in Gen.2: 2-3 God rests, blesses, and hallows the seventh day thereby creating Shabbat. Each week the Jew does the same thing in order to create Shabbat. Without human action Shabbat does not come. The time remains in the category of chol (ordinary) rather than kadosh (holy). If the Jew does not do what God does Shabbat does not come. The Torah provides the primary rationale for Shabbat observance for itself as a reminder of Creation and Redemption. These theological concepts have important ethical implications and in relationship to marriage, Creation and Redemption are the basic themes of the Sheva Berachot (Seven Wedding Blessings). Holiness means living a life in relationship to and in the presence of God. Marriage is the sanctified relationship par excellence that sets the parameters of all other relationships. "Kedusha is acquired through fulfilling the mitzvot."

It is the meaning of the term kiddushin, which is essential to our understanding of Jewish marriage. Only when we understand the values that define the word will we be able to ask the appropriate halachic questions. Rabbi Herbert Bronstein finds one of the best descriptions of the meaning of marriage as kiddushin in Reform Judaism in an essay in Gates of Mitzvah. It does not define the halacha of marriage but it delineates the theological and ethical concepts which must be represented by the halacha.

In Judaism the Holy of Holies of all relationships, to which the poetic genius of the Hebraic spirit turned most often for the paradigm of the covenant between God and Israel, was and is the covenant between husband and wife ... A sacred entity comes into being in Jewish marriage. As in the Kiddush of Shabbat we set apart a period of time as holy, in Kiddushin husband and wife set each other apart. … In the view of Reform, this "setting aside" is mutual; both husband and wife are consecrated to each other.They create a sacred entity in the act of Kiddushin consecration.

In the Jewish marriage service, in the very act of consecrating a particular relationship as holy, the potential sanctity of all relationship is asserted. Husband and wife represent the bond between God and humanity, the ideal toward which all human relationships should strive. Kiddushin is the rooting of the human in the realm of the sacred, with the goal that all our relationships become holy, bearing the blossom and fruit of life.

It is the spiritualization of kedusha, which affects our halachic concept of marriage. Reform Judaism takes theology seriously and when its liturgical formulae and ritual actions do not accurately reflect its ethico-theological underpinnings the formulae and ritual actions are changed or re-interpreted.

The primary metaphor for marriage, which dominates Jewish theology, is brit.

The marriage metaphor is used to describe the covenant between God and the Jewish people. The wedding took place at Sinai with the Torah as the ketubah. It is this theme of covenant that dominates the thinking of Eugene Borowitz as Reform Judaism’s leading contemporary thinker. He has described marriage as the most appropriate ethical context for sexual relations because it is the best vehicle for expressing intimacy and perpetuating the Jewish people and because every Jewish marriage is a reflection of the covenantal marriage between God and Jewish people.

The Jewish community has found no more central and significant form for the individual Jew to live in… than the personal covenant of marriage. In its exclusiveness and fidelity it has been the chief analogy to the oneness of the relationship with God as the source of personal worth and development. In marriage’s intermixture of love and obligation the Jew has seen the model of faith in God permeating the heart and thence all one’s actions. Through children, Jews have found the greatest personal joy while carrying out the ancient Jewish pledge to endure through history for God’s sake.

Contemporary Jewish marriage is ideally an I-Thou relationship between the lovers. For Buber, the Eternal Thou (God) is present in every I-Thou relationship and the Rabbis believed that God was present in proper moments of sexual intimacy between wife and husband. Theologically Borowitz struggles with an understanding of relationship with God who is superior and more powerful than humankind and how the relationship to that deity is modeled in the marriage. Ultimately Borowitz maintains that human dignity depends on autonomy and freedom.He writes:

We have an old-new model for such open, unsettled but mutually dignifying relations, namely "covenant" now less a contract spelled from on high than a loving effort to live in reciprocal respect. As the pain of trying to create egalitarian marriages indicates we cannot know early on what forms and processes most people will find appropriate to such relationships. We can, however, accept covenantal relationship as a central ethical challenge of our time and pragmatically learn how we might sanctify ourselves by living it.

It is important to note that Borowitz realizes that marriage is undergoing significant change. Central to the covenant of marriage as Borowitz describes it is its egalitarian nature. This, he indicates, represents a substantial shift from the past. The relationship’s intimacy and egalitarianism is reflected in contemporary readings of Song of Songs. One of the most frequently invoked wedding texts is from Song of Songs Ani ledodi vedodi li "I am my beloved’s and my beloved is mine." The book seen as a whole is a description of an ideal mutual loving relationship in which both lovers initiate sex. The woman’s voice in the relationship is as prominent as the man’s voice. The rabbinic interpretation of Song of Songs as an allegory about the relationship between God and Israel only heightens the religious meaning of sexual intimacy. Love is the dominant emotion. The lovers freely choose one another. Song of Songs presents a loving relationship in which neither partner is dominant.

Marriage takes place between two equals who choose to marry one another. Each individual has reached the age of majority and commits her/himself to the other person. This is a far cry from the traditional concept of kiddushin where a woman moves from the authority of her father to the authority of her husband.

Judith Plaskow reflecting what is clearly the progressive Jewish ideal writes:

Marriage will not be about the transfer of women or the sanctification of potential disorder through the firm establishment of women in the patriarchal family, but the decision of two adults to make their lives together which include sharing their sexuality.

It is the Sheva Berachot that express the essence of marriage and it to this text that we must look if we are to understand marriage. As Adler says it is these blessings which make it "respectable" and reframe kiddushin as acquisition as an archetype of redemptive union."God is creator and humankind share the divine image with God and like God they are capable of creation. The couple’s love participates in the perfection of the Garden of Eden and the first marriage of Adam and Eve whose mesadder kiddushin was God and its joy anticipates the messianic fulfillment promised by the prophets. Its symbols are a cup of blessing and the chuppah, the marital chamber which is symbolic of the intimacy they will share and the sanctuary they will build. For the home is the replacement for the sanctuary. It is mikdash meat the Temple writ small.

In Reform Judaism the symbolic act of kinyan (acquisition) has become a mutual exchange rather than a unilateral exchange. Such an exchange in the traditional halacha invalidates the transaction.

The ketubah has been replaced by a marriage certificate or by an egalitarian document which eliminates most if not all of the halachic language. The text of a traditional ketubah is primarily an economic document that stipulates a man’s obligation to his wife during the marriage and in case he dies or divorces her. The document is not mutual and is rarely used in Reform weddings. In fact, ethically, it ought not to be used.

In the halacha, only a woman’s status is changed completely. She becomes permitted sexually to her husband and forbidden to all other men. Her husband’s on the other hand hardly changes. He is still permitted to most of the women to whom he was previously permitted except for certain relatives of the bride. While monogamy is the norm in Orthodox Judaism, it is clear in countries where it is standard for men to have more than one wife it is still potentially and maybe actually permissible. In addition, a married man who "commits adultery" with an unmarried woman is still not subject to the same penalty as a woman who committed the same offense. If a woman has committed adultery, her husband is required to divorce her and she loses the monetary settlement of the ketubah.

In an extended analysis of the Jewish wedding ceremony, Rachel Adler points out that two different visions of the relationship between husband and wife are presented, i.e. possession and covenantal partner.

The ceremony of kiddushin is about normalizing the place of women. It represents a view of women which Reform Judaism rejects. The maintenance of the ceremony of kiddushin, even in its egalitarianized form, is insufficient to symbolize the radical nature of the change that Reform Judaism has made in the status of women. A new ceremony would mean that women are more than honorary men but that they were full partners whose gender is acknowledged as being part of the original creation of humankind.

Mishnah cannot make women into men. But it can provide for a world in which it is normal for women to be subject to men—father or husband—and a system to regularize the transfer of women from the hand of the father to that of the husband. The regulation of the transfer of women is the Mishnah’s way of effecting the sanctification—that is special handing—of what, for the moment, disturbs and disorders the orderly world. The work of sanctification becomes necessary in particular at the point of danger or disorder so as to preserve the normal mode of creation so that maleness may encompass all, even at the critical point of transfer.

We can re-interpret a ritual or we can create a new ritual to symbolize the newly understood reality. This is the choice, which is posed to us by Rachel Adler’s description of marriage as brit ahuvim. Most Reform Jews would already understand their marriage to be an egalitarian covenantal partnership.The double kinyan is understood to accomplish this, but the double kinyan already changes the halachic paradigm, because a double kinyan invalidates the transaction. Further, a man cannot bestow himself upon a woman; he must declare "you are mine" and not "I am yours".

A woman cannot initiate marriage. "I would have thought, if she [the wife] gives him [the husband] money and betroths him, it is valid a kiddushin: therefore Scripture wrote, ‘when a man taketh’, but not, ‘when a woman taketh’" nor can it result from mutual exchange.

It is the woman who must be acquired because only the woman undergoes a status change. She will belong exclusively to that man. The man will not belong to the woman because, in relationships, men are subjects but never objects unless they are slaves. Hence a man can validly declare, "Be espoused to half of me," because he may divide himself among as many women as he chooses, but if he declares "I hereby espouse half of you, no kiddushin has been effected, because unlike a slave who may be owned fractionally by several masters, a woman can only be espoused as the exclusive acquisition of one man.

Rachel Adler also rejects mutual kinyan for additional reasons that it is a continuation of the commodification of people.She argues that this does not reflect contemporary egalitarian Jewish marriage. She takes seriously the ritual of marriage as a statement of the halacha as well as theology and ethics. Therefore she proposes to call marriage what it has become, Brit Ahuvim, a covenant of lovers and to create the covenant as a partnership creating a ritual which reflects the way partnerships are created in the halacha.

She points to three elements in the creation of a partnership:

1. A partnership deed
2. A statement of personal undertaking in which partners committed themselves to certain acts on behalf of the partnership.
3. A kinyan or symbolic act of acquisition of the partnership

Her brit document contains the following elements: 1) a pledge of sexual exclusivity, 2) a commitment to the rights and duties of a familial relationship, 3) an assumption of joint responsibility for children, 4) a pledge to live a holy life as a Jewish family, 5) a pledge to fulfill communal responsibilities, 6) a pledge that either spouse will protect the dignity and comfort of the other in his or her dying.

The rewriting of the ceremony in such a dramatic way would in fact make it clear that in Reform Judaism we have reformulated our concept of marriage. She writes that it would also have implications for the dissolution of marriage. Many Reform rabbis have rejected the necessity of the get because just as the man only has power to execute a marriage only a man can initiate divorce. Adler raises the question as to whether this nontraditional form of marriage would require a get. While for the sake of consistency we would insist on a ceremony that indicates that the partnership has been dissolved, it would obviously be different than a get. The Seder Predah (a divorce ritual) created by the Central Conference of American Rabbis might suffice. At least in North America, universally acceptable gittin are issued only by the Orthodox, and while some of us suggest a get to preserve the marriagability of divorced and to protect unborn children again the accusation of mamzerut, we in Reform have eliminated the category of mamzerut, will marry a kohen and divorceeand have our own standards for conversion, all of which are unacceptable to the Orthodox. It is clear to me that we should evolve our halacha according to our theological and ethical standards. We should stand on solid ground but that we must reject Orthodoxy as the standard by which we determine what is halachic. If ethical categories are determinative for our halachic conceptualization and effectuation of marriage we should expect that in the future as society’s understanding of intimate relationships and sexual identity continue to undergo transformation we will make other changes.

Footnotes:

1   A central thesis of my argument is that kiddushin is understood as a legal process in which a partnership is sealed using symbolism drawn from property law. The meaning of the transaction is understood through the medium of the Sheva Berachot. Rachel Adler in her book Engendering Judaism An Inclusive Theology and Ethics 1997 (pp.169-207) makes an important proposal to change the ceremony using partnership law not property law. This will be discussed in detail below. Central to my argument is that we have created a new legal institution that has similarities to the old and uses a ceremony to effectuate that is drawn from the old paradigm. The similarity of name and ceremony has prevented us from recognizing the changes that Reform Judaism has made.  

2   It is clear the Rabbinic tradition and Orthodox authorities such as Maurice Lamm in The Jewish Way in Love and Marriage are uncomfortable with the concept of a woman as property but they have largely failed to change the halacha to redress the unequal distribution of power and to permit women to initiate divorce so that they do not have to remain married against their will. In addition, during the wedding ceremony the woman is a passive rather than active participant making it clear that she is a "second class citizen". 

3   This does not mean that our understanding of marriage is merely spiritual, not halachic. While there currently is a considerable amount of liturgical creativity in relationship to marriage, it only reflects the fact that the marriage paradigm is undergoing a significant shift. The ceremony is a legal act whose language is performative. Its speech acts create a new reality i.e. two unrelated individuals become a married couple. These acts have legal and economic consequences and must be terminated by a legal process. Our spiritualization of kiddushin reflects a changed halachic, not merely aggadic understanding.

4   Gen. 1:27; 5:1-2. 

5   Societal change constitutes shinnui haittim (change in the times). New information justifies a change in the halacha. 

6   I say "in theory" because women who work still carry a disproportionate share of familial responsibilities. Marriage as an institution is still in a state of flux. 

7   Lev.20:7-8 

8   We do not believe that God commands the unethical. Therefore, if a particular law is deemed unjust we exercise our authority using the principle Ein lo la-dayyan ella mah she-einav ro’ot. See Roth Halakhic Process pp.85ff. We also would apply the concept attached to some of the laws in Leviticus and Deuteronomy that anything which oppresses or exploits another is prohibited because we were strangers and slaves in Egypt. A hermeneutic of justice strictly and carefully applied is part of the Reform halachic process. 

9   See Max Kadushin Worship and Ethics p.223 

10   Halacha is the crystallization of aggadah. This is most clear in Reform Judaism in which it provides a rationale for observance, rejecting or reformulating what it cannot justify ethically, psychologically or aesthetically. 

11   The issue of mutual kinyan is discussed in detail below. 

12   The Sheva Berachot soften the most objectionable aspects of the kiddushin as ceremony of kinyan acquisition. It seems clear that the rabbis used the blessings to transform the meaning of the event and to distinguish it from other economic transactions. Reform Judaism makes explicit what is implicit in the Sheva Berachot. 

13   The double ring ceremony, the change or elimination of bircat erusin and substitution of either a marriage certificate or a egalitarian ketubah for the traditional are among the most obvious examples in the wedding ceremony. 

14   Gates of Mitzvah p. 

15   Eugene Borowitz Exploring Jewish Ethics as cited by Levitt p.75. 

16   Eugene Borowitz Renewing the Covenant passim  

17   as cited by Levitt p.79. 

18   Judith Plaskow Standing at Sinai Again p.145.  

19   Adler p.181. 

20   Some will argue that for the sake of klal yisrael we ought to use the traditional ketubah. As Moshe Feinstein has pointed out, Reform weddings are safek kiddushin at best because there is a prima fascia assumption that there were no kosher witnesses present. While his decision allows a woman married by a Reform rabbi to remarry without a get (Jewish divorce) and may be considered a leniency. Our decision must not be based on trying to satisfy the halachic requirements of other movements unless it can be done in a way that maintains the ethical nature of kedusha. The use of the traditional ketubah calls into question the kedusha of our marriage ceremony. 

21   Jacob Neusner A History of the Mishnaic Law of Women: The Mishnaic System of Women part 5 p.268 

22   I suspect that most Orthodox Jews would understand their relationship similarly. In this situation there is a cognitive dissonance between what is done ritually and what is believed theologically. However Orthodox feminists have begun to offer an increasing insistent critique of Jewish marriage law. 

23   Kid. 4b 

24   Kid. 3a, 6b 

25   Adler p.176. 

26   Adler strives for an ethical consistency while looking for a proper halachic paradigm for marriage. Her solution is very much in keeping with the founders of Reform Judaism who justified their changes on the basis of traditional texts. She acknowledges that marriage is a legal relationship and not only a spiritual one and therefore it must have a legal framework for its initiation and termination. 

27   Adler p.193. 

28   Adler p.194. 

29   Reform Judaism has, in fact, rejected the concept that kohanim have special privileges or restrictions.