Notes from Limmud 2011
Panel discussion: The Limits of Kiddushin
[Standard disclaimer: All views not in square brackets are those of the speaker, not myself. Accuracy of transcription is not guaranteed.]
Rabbi Joel Levy:
The question of how people should be getting married is a hot topic.
The essence of the act of marriage has not changed radically in the last couple of thousand years. It involves two stages: קִידוּשִׁין, done by the giving of a ring by the man to the women, with the words הַרֵי אַתְּ מְקֻדֶשֶׁת לִי בְּטַבַעַת זוּ כְּדַת מֹשֶׁה וְיִשְׂרָאֵל "Behold, you are sanctified to me with this ring according to the law of Moses and Israel." Then, after reading of the כְּתוּבָה, there is נִישׂוּאִין, which is a different ceremony.
קִידוּשִׁין is in some ways a negative ceremony: The woman goes from being פּנוּיָה, single to אֵשֶּׁת אִיש being betrothed to one person. Were she afterwards to have sex with someone else, she would in theory be liable to the death penalty.
The man's status does not change when the ring transfers over.
The נִישׂוּאִין is the celebration of the man and the woman coming together.
Rabbi Herzl Hefter:
From the Biblical verse "should a man take a woman...", the Mishna derives what the Mishna calls קִידוּשִׁין, and delineates that there are three ways in which a woman becomes "acquired":
כֶּסֶף, monetary exchange, customarily a ring of at least minimal value, in exchange for which she "gives herself over".
שְׁטָר: The giving of a document, where the man writes a document—not the כְּתוּבָה—with witnesses. Instead of saying בְּטַבַעַת זוּ, it says בְּשְׁטָר זֶה.
Through sex: before having sex, he would say הַרֵי אַתְּ מְקֻדֶשֶׁת לִי בִּבְּעִלָה זוּ. This was prohibited, and Rav gave lashes to someone who sanctified a woman this way.
The Talmud Yerushalmi says we require all three. This is not how we pasken today.
This tells us that קִידוּשִׁין is multi-faceted. It has a monetary side to it: there are financial ramifications. It has a public aspect to it, signified by the contract with witnesses. And there is bli`a [did I mean here בְּעִלָה?], the inter-personal aspect, which is created by קִידוּשִׁין, even before נִישׂוּאִין, according to the Bible, though the Sages forbade it.
Then there is the כְּתוּבָה. It is not actually a marriage contract, but more of an insurance policy. It is not Biblical (though there are opinions that it is). It delineates the husband's responsibilities, some of which are Biblical: He is commanded to provide sustenance to his wife, to give her shelter, and to satisfy her sexual needs.
Other responsibilities are rabbinical: According to Biblical law a man may divorce his wife by writing a גֶט; she has no say in the matter. The Sages wanted to protect a woman from this, so he has to pay a certain anmount of money
He is also obligated to provide medical care for her, to redeem her if she is kidnapped, to provide funeral arrangements, and to allow her to live on his estate if he dies first.
[And now I'm going to have to read Sense and Sensibility to pick up the references the speaker made to it.]
Her daughters continue to derive support from the dead husband's estate, even if they are not [?his], before the inheritors get a look in.
The language of קִנְיָן, acquisition, is problematic. It's offensive to the modern ear. However, though the commentaries of the Talmud borrow the language from the area of ownership, it constitutes a different area of halacha; it is not reducible to the laws of ownership. 99% of the commentaries, and 100% of married couples, understand this. No husband thinks he owns her wife, and no wife regards herself as being financially owned by her husband.
I believe that the act of קִידוּשִׁין is an immoral act. The vast majority of rabbis and denominations still perform קִידוּשִׁין.
Many Orthodox rabbis say we reinterpret what it means: we take out the acquisition factor. What's interesting is the remaining 1%. But this is huge, because there is still a voice that says קִידוּשִׁין is purchase. And it's not 1%, it's more.
קִידוּשִׁין does indeed mean sanctification, but that's not the law. Once you've done it, even if you reinterpret it, and even if there is an exchange of rings, at the end of the day the rabbinic courts will require you to get a divorce afterwards.
We can admit out loud that the law is one way and the reality another way. This is very problematic, because you have couples engaging in a legal reality that they don't understand, and don't think they did.
Most couples today want to create a partnership, but won't understand the way we do marriage in Judaism today across the board is not reflective of that.
The rabbis would always look at the reality on the ground and try and make the best moral choices to [lacuna]
Therefore it behooves us to think about shifting our marriage ceremony from a unilateral contract to a genuine partnership, which will also solve the problem of people being stuck in marriages they cannot get out of.
Rabbi Danny Rich:
Liberal Judaism today does not suffer from many of the problems Yaffa Epstein referred to above. Their כְּתוּבָה has no financial clauses in it whatsoever. In terms of גִטִין they rely on the civil courts, but do have a סֵפֶר כְּרִיתוּת which either or both parties can sign.
There are aspects of the society in which we live that make this more difficult—it's patriarchal and regards heterosexual relationships as the norm.
But [Liberal Judaism] sought to create a [lacuna]
two parties coming together to create a moral (rather than legal) agreement. They saw no reason not to extend that to two lesbians or two gay men, and are waiting for English law to catch up with them.
It's not the case that the halacha has not changed over the last two thousand years. The fact that people perceive things differently means the halachic mind (if not the halachic text) has made some changes.
Rabbi Joel Levy:
For many couples who come to get married, the act of entering under the chuppah is the first time in their lives when they will voluntarily chose to make a Jewish statement in public. (After having been steamrollered into bar or bat-mitzvah, leading to a period of disengagement.) But when they come back and want to get married, they have to choose under which and whose auspices. And this is weighty; it determines how they will relate to Judaism.
My first plea is that couples undergo this decision with seriousness. There is a crisis, and it is even more extreme than Yaffa suggested. The myriad of couples getting married under the auspices of an organisation that will not explain to them the nature of the contract they are getting into, and who would disagree vehemently with the nature of the contract if they knew it, results in a situation in that the majority of people who are getting married, are not getting married, because they don't have דַעַת מִקְנֵה, consciousness of acquisition. And the כְּתוּבָה is not properly translated.
[The speaker gives an example of the bride coming to him five minutes before the ceremony saying she doesn't believe in the ceremony.] The Orthodox rabbi said: don't worry about it; Joel thinks this is not the case. If a person writes a גֶט and says this is not a גֶט, then halachically it cancels the גֶט.
Likewise, here this cancels the קִידוּשִׁין. Feldman calls this דֶרֶךְ קִידוּשִׁין.
The moment when you stand under the chuppah, you should say something you believe in, with integrity. If you've thought through the tradition, and done enough work, there are ways of making sense of the קִידוּשִׁין ceremony. But if after the process of learning, if the couple don't believe in it, I will not perform קִידוּשִׁין. There are various courses that can be pursued then.
Rabbi Herzl Hefter
I believe as a matter of faith that the Torah as expressed by [lacuna] is of Divine origin. What that means is a whole different argument. But I am bound by that. Hence I do not control the law. The law comes from a transcendent source, which is interpreted by the Jewish people, and the way they practice the law is the law.
This makes Yaffa a fundamentalist, because she is saying this is what the text means, and ex post facto because of moral discomfort with certain nuances of the text, reinterprets the text.
The fact there is a separate category of marriage in the Shuchan Aruch and Maimonides, indicates it is not reducible to the laws of ownership, notwithstanding the borrowed use of the terminology of קִנְיָן. For example, nobody ever thought a man could sell his wife. Hence we are not talking about ownership.
Rachel Adler's proposition of בְּרִית אֲהוּבִים. We are searching for a halachic answer here. Instead of a different alternative, within a halachic alternative, I am bound by something transcendent.
By trying to solve the problem, we have made it much worse. שׁוּטָפוּת, partnership, in Jewish law, is only financial; it can be nothing else! Hence, in view of my modern sensibilities, I take great offence at reducing marriage to partnership!
Secondly, if you want halachic validity, I can't give it to you, because that does not exist. Within the halachic system, either you're married, or you're not. (HH disagrees with RJL about דַעַת מִקְנֵה because of ex post facto validity.) The transcendental nature of Jewish law puts certain things beyond my control. There is a point where, religiously, I have to realise I have to let go.
The idea that rabbis for the last two thousand years have not controlled the world is false. Every generation rabbis inherited the tradition and made it work for their generation. Rabbis have controlled halacha since they created halacha!
Yes, it is problematic shifting marriage into a wholly financial nature. But the way rabbis have [lacuna]
Originally kiddushin and the כְּתוּבָה were brought in to protect marriage. But now it's not reflective of our society. This is no longer tenable.
I don't have a problem with the idea we have to uproot the whole tradition of קִידוּשִׁין and start again.
Marriage is a civil contract, and has always been. Judaism says marriage should be about love and respect and intimacy. But the results of chained human beings is not worth the concept of marriage being more than just financial.
Responsible adults in 2011 can create a financial agreement. The legal aspect has to be boiled down to financial agreement. Which can be accompanied by emotional partnership too.
[She tells a story:] "Do you understand you're being purchased?" "Yes." "Are you happy with this?" "No, but this is how my parents got married, and my grandparents, and..."
I do not think this is worth it.
Rabbi Danny Rich
The assumption behind Liberal Judaism is to bring the values of Judaism to [lacuna]
My idea is that the halacha cannot deal with it. Not all of my colleagues would agree; some would seek to find a pseudo-halachic solution, but is non-halachic.
The issue is that we have language, words like "rabbi" and "Shabbat" and "Kiddushin". Can we redefine these in a way that is meaningful? Cut out the financial bits and the imperative for reproduction, and redraft the rest.
Is all this halachic playing a matter of political will? Is it possible for the rabbis to bring the halacha more into accord with the way people live? There are examples of the halacha doing this.
For example, take our relationship with Christians: The halacha was forced to identify Christians as non-idolators.
Rabbi Joel Levy:
The person who did that was [R.] Menachem Meiri [1249–c. 1310]. He wrote they are "your brothers in Torah and mitzvot"; they are "tied up in the ways of religion". In one fell swoop he took people Judaism had looked at as idolatrous and completely changed the way Jews should interact with Christians.
The halacha did not change at that point. What changed was the application of halachic categories.
Something similar is happening now. When I look at a woman now, I don't think she falls into the category of אִשָּׁה as it was defined in the Talmudic period.
When we've reinvented what she is, maybe we can come up with ceremonies that would allow a man and a woman to get married.