Notes from the Marom Beit Midrash
Jewish Wedding—Fairy Tale or Nightmare?
Rabbi Joel Levy
Standard disclaimer: accuracy of transcription is not guaranteed.
Getting married in a Jewish context is a very difficult thing to do with integrity. (And indeed might be difficult full stop.)
People have been getting married for a very long time; the core traditions go back a couple of thousand years. But the prices you pay for being part of an ancient tradition is that social mores will have changed. Clearly the inbuilt societal relationships between men and women two thousand years ago were fundamentally different. But we've inherited the laws that were built up around them. So now what we do? How do we use the tradition to get married?
This is a pressing question. And couples who want to get married have to grapple with it; they're a captive audience! A wedding has to feel right, and work, and be Jewish, and fit into the modern context, and so forth.
Nowadays there is a question of why get married at all, given that people live together regardless. The answers generally given have to do with living within our culture—being accepted by the community—and wanting to get married the way people have been for two thousand years; i.e. wanting to tie yourselves in, horizontally or vertically.
A Jewish wedding has two fundamental components: a negative aspect, קידושין, and a positive aspect, נשואין. A single unmarried woman in Judaism is called a פנויה, an available woman. She is capable of having sex with approximately three billion people. Should any one of them have a sexual relationship with her, in the Bible there is no punishment (though it is Biblically prohibited to lie as to whether one had sex or not). By contrast, if an אשת איש, a married woman—literally, the woman of a man—has sex with a man not her husband, that is adultery and she is liable, Biblically, to the death penalty.
How does one go from being a פנויה to אשת איש? The Mishna says:
Kidushin 1:1 קידושין א א A woman is acquired in three ways: with money, through a document, and through sex. האשה נקנית בשלש דרכים וקונה את עצמה בשתי דרכים׃ נקנית בכסף בשטר ובביאה׃
The way we do it today is through money. A man gives the woman an object of more than nominal value that belongs to him, and says הרי את מקודשת לי כדת משה וישראל "Behold you are sanctified to me according to the law of Moses and Israel." The moment she accepts the object, she is married—sanctified to him (even if she never has sex with him.) Witnesses have to observe this and observe the couple going into a room with the intent of sex.
The document referred to in the Mishna is not a כתובה (Ketuba), the document associated with a Jewish wedding nowadays, which sets out terms and conditions for the marriage; it's a document that actually created a marriage.
Of these three methods, the one least found in the Bible is the money one. Marriage in the Biblical world works through sex (assuming that's what "taking" a woman in the Bible means). The rabbis of the Talmud, however, preferred to enact marriage through Money, the most refined of these methods, and the furthest from sex. They wanted to elevate marriage and make it more refined, more abstract, but also as discreet as possible. The wedding ceremony is innocuous; it can happen in public, and before witnesses. The moment the woman accepts the ring, she is married.
קדושין does not lead to being able to have sex; it merely rules out having sex with any other man. For this, the second stage, נשואין, is required.
This is completely non-egalitarian. The woman is bound; if she has sex with anyone else, it's adultery and she's liable for the death penalty. The man, however, is not bound: he can go out and marry another woman the next day. The woman has changed status from פנויה to אשת איש; the man, however, has no change of status: rabbinically speaking, there's no such thing as איש אשה, the "man of a woman."
In the eleventh century Rabbeinu Gershom made a תקנה (a non-precedent-based ruling)—probably under the influence of living in a Christian culture—forbidding Ashkenazim from taking more than one wife. (We don't have the text of his תקנה; it's not clear whether he also forbade men from having sex with more than one woman.) This is a start, but still does not add true egalitarianism to marriage.
In days of yore, a year after the קדושין the woman would be welcomed into the husband's house with great rejoicing—effectively a celebration of their sex. This was the נשואין, which went along with the שבע ברכות—the seven blessings of the wedding ceremony. During the intermediate period they are betrothed—break off the betrothal requires a divorce, and this is no easier to obtain than a divorce from a full marriage. This stopped happening because it was claimed women were vulnerable during that year, and got raped by non-Jews.
The Mishna, Tractate קדושין (weddings), Chapter 1 Mishna 1 talks about how to acquire a wife. Subsequent mishnayos, using the same language, talk about how to acquire a Hebrew slave, a Canaanite slave, and a draft animal. Judith Wegner claims a woman has an intermediate status halfway between an object and a person—he buys her, like one would a woman; but he does not have absolute rights over her: he can't, in law, sell her on, or rape her within marriage.
נשואין, of course, is normally performed in a ceremony under the chuppah, the wedding canopy. R. Levy has no problems with chuppah; he considers this a beautiful ceremony. The problem is with the קדושין.
Today we do the קדושין and the נשואין together in one ceremony, with the reading of the כתובה to separate them. This document originated as a protection of the woman's rights. It's somewhat like a PNA; it sets the terms and conditions of a divorce.
A traditional כתובה (Ketuba) does not talk about what the man gets; but there is a complex network of things that kick in automatically on marriage, as ordained by the rabbis of the Talmud. For example, a man is obligated to feed his wife, to clothe her, and have fulfil her sexual needs, דאורייתא (Toraitically). The Talmudic ordinances add such provisions as that he has to give her 2 zuzim if she is not a virgin, or 200 if she is; he has to provide for her medical fees, he has to bury her if she dies; he has to look after any kids of hers from a previous marriage, and redeeming her if she falls captive. In exchange for those things, the produce of every piece of work she does—the money—belongs to the husband; anything she finds, belongs to him. Unless you state to the contrary in the כתובה, this still holds! You can write in the כתובה that she holds such-and-such property, which is hers, and does not pass into his possession, but no one does; they just go along with the כתובה in its standard form.
But almost invariably, no one nowadays takes any notice of the terms and conditions of the כתובה. Indeed, the first thing that happens in an Israeli divorce nowadays is to sign a form saying you're not going to abide by the terms and conditions of the כתובה, but go for a negotiated settlement. In view of its non-egalitarianism by today's standards, this is probably a good thing. Rabbis tend to agree with this, saying it's better not to meddle with the כתובה, as it's a ritual thing.
Those are the two big issues—the inegalitarianism of the sexual requirements, and that of the money.
When R. Levy said there are a lot of people who might not be married today, he means does not know anyone whose rabbi explained to them the terms and conditions of the contract when they get married. This is, of course, because if the rabbi did, people would turn around and say "I'm not going to accept that!", and there would be a revolution. So what is the status, in Jewish law, of a contract that is signed without paying any attention to its terms and conditions? R. Levy doesn't know.
How common was it to negotiate the terms of the כתובה originally? In the Talmud, common indeed. For example, the woman can say "I don't need this rabbinic enactment" about money. (Though you can't, of course, change all the דאורייתא [Toraitic] stuff.) But like with Jewish prayers, a document that was originally flexible and varied, became formalised and rigid.
קידושין was also originally much more flexible in the Talmudic and mediaeval period than today.
So, how do we respond to all this? One solution is to say "so what?" We don't live our life according to the כתובה, so what difference does it make if the terms of the marriage are not relevant? But symbolism is important for some people, and integrity too is important for some people.
Another suggested solution to say we merely need to add to the terms and conditions; informally if not formally. One person pointed out that though the marriage is not egalitarian, it's balanced as there are assymetries both ways. (E.g. the woman doesn't have to pay the man's medical fees.) Sarah G suggested that many women would be satisfied with the terms of the marriage—i.e. that her needs would be provided for in exchange for fidelity to her.
There will be a price to pay for fixing these various problems if the reason for getting married in the first place is to fit into the traditional framework. The more you mess with things, and the more, then, that they feel right, the further it'll feel from the tradition.
First consider the problems with קידושין. Some people do a two-ring ceremony. The woman says something. Until recently, the Conservative movement did not allow her to say הרי אתה מקודש לי כדת משה וישראל (the gender-reversed equivalent of the declaration above) because "מקודש" (male sanctification) does not exist in the traditional framework. Several problems have been raised with this. One is that giving a ring after receiving one looks like you're rejecting the monetary worth of the ring you have been given. This, however, is a poor argument (and can be worked around by the woman giving the ring first). The real reason, R. Levy says, is because it's not true, it doesn't mean anything.
R. Joel <someone>, an Orthodox rabbi in Israel, promotes "דודי לי ואני לו" ("He is beloved to me, and I to him"), but, halachically, it has no meaning. What's more important: how things look, or how things feel? Halachically, nothing kicks in when a woman gives a man a ring; nothing changes. Though you can argue that the man wearing a ring does have a social effect in that it prevents the man flirting with other women, and vice versa.
You can also argue that none of this stuff means anything anyway given that we don't enact the death penalty today for adultery (or anything else).
One possibility is to define the terms and conditions of "מקודש" in the כתובה (which is signed before the marriage ceremony, but doesn't kick in until the ring is given); R. Levy cited the example of someone who got married this way.
What about יחוד? [Traditionally, a man and woman may not be together alone before their wedding; this is still the case in some Orthodox communities. Following the wedding ceremony, the bride and groom go into a room alone together for the first time, and guards are posted at the door to ensure their privacy.] This can remain, but its symbolism has to be reinterpreted. R. Levy cited an Israeli couple who did יחוד both before and after the chuppah, to symbolise their life beforehand, and their changed life afterwards.
Another solution is a vow of male fidelity? R. Levy has seen this, a Biblically binding vow in the marriage ceremony, that the man would not take another woman, for the duration of the marriage. He said there was a sharp intake of breath from everyone at the wedding at that point: this is something people have heard of, but never thought they would see: Binding vows are strongly discouraged in Judaism, because they are so serious and cannot be revoked.
R. Levy himself accepted a ring from his wife with "With this ring I accept upon myself the terms of marriage, including all the conditions of R. Gershom of not taking any other women." Though it can be argued that this redefines marriage as being all about sex.
Some people say don't do קדושין; their attitude is: it's so problematic we can't fix it; best to discard it and start again. (See Rachel Adler, Engendering Judaism, the last chapter of which is worth reading.) So they have a non-קדושין marriage. Are they halachically married? R. Levy thinks they are, but no Orthodox people would think this.
In terms of the כתובה, there is so much room for messing around with the text. R. Levy says we merely need to get back into the culture of having a flexible כתובה, as it was in the Talmud, and not remain lumped with the completely non-negotiable כתובה the United Synagogue insists on.