CCAR RESPONSA
Long-Term Non-Marital Relationships
5756.10
She’elah
A thirty-nine-year-old single woman and a forty-seven-year-old single man have been in a close relationship, sexual and otherwise, for several years. Because of outside circumstances, the chances of their marrying are slim. Should this relationship be discouraged? In general, should long-term relationships between mature adults be discouraged?
Teshuvah
I. Non-Marital Sexual Relations in the Jewish Tradition.
Rabbinic Judaism has consistently opposed non-marital sexual relationships, no matter what type of affinity existed between the man and the woman. The nature of this opposition was, however, less definitive than that for other sexual transgressions such as adultery or incest. This is primarily because the Torah and early Jewish attitudes tended to be lenient in their approach to pre-marital sexual relationships. Indeed, there is no distinct prohibition or punishment for unforced pre-marital sex in the Tanakh. While prostitution is forbidden, and seduction or rape require reparations for the victim, a consensual pre-marital sexual relationship is nowhere specifically condemned.
In fact, the Torah actually formalizes the status of the concubine (pilegesh), thereby sanctioning a lasting sexual relationship between a man (who may or may not have a wife) and an unmarried, consenting woman other than his spouse. According to the Talmud1, the pilegesh was a woman linked in an exclusive, stable relationship with a man, where the woman has benefit of neither kiddushin (marriage) nor ketubah2. While the pilegesh was not a wife as such and was free to leave without any separation procedures, her sexual relationship cannot be definitively classified as “pre-marital,” since her formalized standing made her essentially a “marital companion of inferior status to a wife.”3 Thus the tradition speaks of the single woman (penuyah), the “first-class” wife (ishah nesu’ah), and the marital companion of “second-class” status (pilegesh). In the sense that the pilegesh entered into a formalized relationship with the man, her case might well be held to be different from the more informal nature of contemporary, long-term non-marital relationships. Nevertheless, this distinction could be said to be sufficiently subtle in the case of those modern relationships in which the couple has made a private, long-term commitment to each other, so as to make the pilegesh an important precedent.4
In this context, it is significant that Maimonides maintains that once kiddushin had been established for Israel, anyone who had intercourse without benefit of kiddushin violated the prohibition of kedeishah (Deuteronomy 23:18), which proscribed promiscuous behavior.5 This would seem to preclude the taking of a pilegesh, and indeed, Maimonides writes that only the king is permitted to have a concubine.6 Not everyone concurs with his position. R. Avraham ben David of Posquierres7 distinguishes between the kedeishah, a woman who is totally licentious and who makes herself available to any and every man,8 and the pilegesh who sets herself apart for an exclusive relationship with just one man. Nachmanides is of the view that the Torah’s prohibition of kedeishah does not forbid the taking of a pilegesh. Nevertheless, he writes, we should preach against the institution, “since if the permit were generally known, men would behave licentiously and have intercourse with them while they are niddot.”9 Both the view of Maimonides and that of Nachmanides are codified by Isserles.10
The fact that Nachmanides sees no Toraitic prohibition to the taking of a pilegesh does not, of course, preclude the possibility that pilagshut may violate a positive commandment of the Torah.11 For example, some suggest that pilagshut frustrates the mitzvah that a man ought to take a wife–that is, by way of kiddushin.12 Most (though not all13) authorities hold that pilagshut in our day would transgress the acceptable bounds of mortality. 14 R. David ibn Zimra expresses the current state of the law: “at the present time a women is permitted to no man except through kiddushin, chuppah, sheva berakhot and ketubah.”15If, then, contra Maimonides, Jewish law permits pilagshut at all in our time, it does so only as a conceptual possibility which is noted but actively discouraged. The poskim (halakhic authorities) recognize that the Torah speaks of pilagshut, but in the end they hold that, when it comes to constructing a proper form of personal, social and family life, pilagshut is inappropriate.
Beyond the pilegesh, a 1979 teshuvah of the C.C.A.R. Responsa Committee provides numerous textual references detailing rabbinic initiatives aimed a at blocking “casual” sexual relationships between consenting adults. It also describes the tradition’s vigorous resistance to sexual relationships between unmarried partners who have made a long-term commitment to each other. There can, after all, be no greater long-term commitment than that made between a couple who have concluded kiddushin. Yet halakhah is replete with rabbinic provisions which attempt to insure that even a man and his betrothed spouse would have no sexual contact in the months prior to their wedding.16 Thus, while in Judea an engaged couple could be alone together before marriage, this was not the case in the Galilee.17 The Amoraim, eager to make the Judean position conform to their view of morality, explain that in Judea the wedding blessings were already recited at the ceremony of kiddushin.18 That the Galilean practice prevailed in Babylonia and remains the accepted standard is evidenced by the passage in the betrothal benediction (birkat erusin), “and He has prohibited to us our betrothed spouses.” There was even discussion that the offspring of a betrothed couple might be considered a mamzer.19 In geonic and medieval times, a betrothed couple were required to be chaperoned,20 and the medievals proposed lashes for those found to have breached the standards.21 Bride and groom were not allowed to live in the same building, since this might lead to unsupervised contact between them.22 Despite these rulings, relations between betrothed couples persisted, and loose moral standards often proved difficult to combat.
The solution of the rabbis to the challenge of sexual relations between betrothed couples was to formalize what was reported to have been the geonic and amoraic response to similar instances of moral laxity. They decided to recite the blessings for marriage at the kiddushin ceremony. As a result, in the medieval period (and perhaps earlier in some places), betrothal and marriage became fused into the single ceremony that still remains in place.23 One of the important motivations behind this enactment was the desire to prevent sexual contact prior to marriage even for those who had formally committed themselves to each other through kiddushin. It plainly follows that the contemplation of a sexual relationship for those who, no matter the depth or the longevity of their feelings, had made no formal commitment to each other would have been absolutely out of the question. Unmarried Jews were not to live together, and certainly not to engage in sexual relationships, even if their personal commitment to each other was profound.
It is evident, then, that the rejection of pilagshut and the constraining of pre-marital sexual activity required some delicate maneuvering on the part of the later poskim in order to dismiss the relatively permissive approach to pre-marital sexual relations of the Tanakh and some strands of rabbinic thought. Abiding evidence of this earlier lenient tendency can still be seen in the halakhic reality that any child of a pre-marital union is not to be considered a mamzer.24 As one contemporary scholar interprets this unusual legal definition, “since illegitimacy or mamzerut is an outcome of the illegitimacy of the sexual relations giving rise to it (i.e., incest or adultery), the legitimacy of the child of an unmarried woman testifies completely to the legitimacy of pre-marital sexual relations.”25 Historically, then, the Jewish attitude toward pre-marital sexual relations clearly moved from a stance of limited forbearance, under certain circumstances, to a more restrictive outlook.
II. Sexuality and Kedushah.
The question that now confronts us, therefore, is whether there exists any persuasive reason why the attitude that has developed within the tradition should be altered in contemporary circumstances, such as those described by the sho’el. In answering this question, we would observe that although the latter part of the twentieth century has witnessed the ascendancy of an undeniably relaxed set of moral standards within Western culture, the 1979 C.C.A.R. teshuvah nevertheless found no justification for dispensing with the rabbinic approach:
Given the indubitable fact that extramarital relations have become common in our day, can Judaism give them its approval? The answer is decidedly negative. We consider premarital and extramarital chastity to be our ideal.26
The answer, then, that the 1979 Responsa Committee would have provided to our sho’el cannot be in any doubt. Consonant with rabbinic tradition, the members of that Committee regarded a sexual relationship between an unmarried man and woman, no matter of what ages, as falling short of the Jewish ideal. Hence, it is reasonable to infer that they would not have encouraged such relationships.
In the years that have elapsed since 1979, however, new attitudes to long-term non-marital relationships have emerged which are significant enough to warrant reviewing the 1979 response. Non-marital sexual relationships were, of course, widespread and nothing new in 1979. But by the 1990s they had become fully accepted–even expected–preludes to, and sometimes substitutes for, marriage. This acceptance has led to a developing view within Reform Judaism that “a relationship may attain a measure of kedushah when both partners voluntarily set themselves apart exclusively for each other, thereby finding unique emotional, sexual, and spiritual intimacy.”27 Since the striving for kedushah is generally seen to be praiseworthy in Jewish life–see, among many other citations, Leviticus 19:2–it makes sense to conclude that a relationship which contains “a measure of kedushah” is one which we would regard as worthy, if not desirable.
It is important, therefore, to evaluate this nascent position from a traditional perspective. The Hebrew root k-d-sh is generally understood to mean “distinct from all else, unique, set apart for an elevated purpose.” Thus we speak of kedushat shabbat or kedushat yom tov, designating these days as unique and set apart for an elevated purpose. Moreover, it is clear from the traditional approach to such days that Judaism has always been at pains to make sharp, clear-cut distinctions between what is kadosh and what is not. At havdalah, for example, we separate from the kadosh and return to the ordinary, in imitation and praise of God, hamavdil bein kodesh lechol, “who makes a distinction between the sacred and the secular.” These sharp distinctions are particularly important for Judaism. Just like the clear boundaries between God and humanity, humanity and animals, life and death, and good and evil, the boundary between the holy and the ordinary seeks to help us categorize our lives with clarity and avoid unnecessary intermingling. The distinction is based upon the premise that when the holy and the ordinary become blurred, it becomes impossible to recognize and properly to appreciate the holy when we encounter it. Experiences which partake of both the holy and the ordinary cease to be either kodesh or chol.
For this reason, it makes no sense within classic Judaism to speak of “a measure of kedushah.” Again, this may be illustrated by reference to Shabbat. In contemporary American society, Sunday has many qualities that make it similar to Shabbat: we cease from our daily labors, we have time for renewal, we enjoy interaction with our family and neighbors. Still, we do not speak of Sunday as possessing “a measure of kedushah,” for to do so would be to diminish the sanctity of the Sabbath as well as to ignore the more important similarities between Sunday and the other days of the week. Although many Jews might indeed experience Sunday as having “a measure of kedushah,” this is because in many Jewish lives the observance of Shabbat has been sufficiently lessened so that it is no longer so clearly a yom kadosh. Obviously, from a Jewish perspective, this is an undesirable conflation, in which weekend days see rest and family pursuits mixed with shopping and work, with the result that neither Shabbat nor Sunday are truly holy or ordinary. Nobody who takes kedushat shabbat seriously could make sense of the notion that Sunday, with its clear possibilities for ordinary work and commerce, has “a measure of holiness.”
Similarly, it is only within a society in which the kodesh and chol of relationships have become thoroughly blurred that it becomes possible to speak of “a measure of kedushah” in sexual intimacy. In Judaism, kiddushin and nisu’in comprise a public ceremony of marriage in which two individuals declare the separation and elevation of one another in a relationship of mutual, life-long commitment28 which is only to be sundered as a consequence of a very serious difficulty.29 This Jewish view differs dramatically from that of a society prepared to recognize an element of kedushah in long-term non-marital relationships. Such a society effectively declares its readiness to recognize kedushah within a private process of separation and elevation, which is characterized by long-term–though not life-long–commitment and which may be eroded upon the slightest whim. If these indeed become the criteria for kedushah within a given society, its members should not be surprised when the nature of kedushah within marriage begins to resemble that of “kedushah” in non-marital relationships, and marriage becomes readily disposable.
Indeed, this is precisely what has happened within secular society. It is no coincidence that the rise in long-term non-marital relationships began simultaneously with the mushrooming of the rate of divorce. Once long-term non-marital relationships are found to be fully acceptable and “partially holy” by society, people have little need for the strictures of marriage, unless it is seen as necessary for the utilitarian reason of clarifying the status of children. It is no wonder, then, that today we witness long-term, committed relationships, some even with children, that are perceived as quasi-marriages, and many marriages in which one partner is on the brink of leaving to find a more fulfilling mate, which are perceived as quasi-long-term relationships. In the midst of such confusion, the predictable outcome has come to pass: the true kedushah of marriage, much like kedushat shabbat for many Jews, has become subverted and obscured.
While this state of affairs might be tolerable to secular society and to some individual Jews, it is not tolerable to Judaism. The arrival of effective contraception has made long-term, committed sexual relationships possible without fear of having children out of wedlock. But the fact that children born out of wedlock do not suffer a legal stigma within Judaism30 is ample demonstration that the primary Jewish concern that led to the rejection of pilagshut and the restriction of sexuality to marriage was more than just an attempt to regulate the legal parameters of the family as a tool for social organization. Judaism’s historic interest in restricting sexuality to the context of kiddushin and nisu’in aimed to correlate it with the highest state of public commitment, economic security, and life-long kedushah. While recognizing that sexuality indeed exists in situations other than marriage, it called upon Jews to practice only the most ennobled form of human sexuality: that which existed within the committed constancy of a devoted marital bond.
We continue to echo that call. To do less would be to accord a heightened recognition to long-term non-marital relationships in a way that has been shown to undermine marriage itself; it would be to give up on the modern Jew’s capacity to fulfill the highest ideal of kedushah within the marital bond. We will not be party to steps that undermine Jewish marriage or that diminish ambitions for sanctity in Jewish lives. We reaffirm the 1979 position which holds that sexuality within marriage is our ideal.
We concur with the frequently stated argument that such a position is out of step with “reality.” But while many are the voices in this society are all too ready to affirm whatever “reality” happens to be practiced by adults, Judaism is not one of them. As we understand it, one of the guiding purposes of Judaism is not to bless “reality” but rather to call upon us to transcend it, to uplift the potential for human dignity and human greatness. In this task, Judaism must, not infrequently, take a position that is counter-cultural. We see no compelling contemporary circumstance which would require us to shrink from Judaism’s historic mission in this regard.
Our attitude to long-term non-marital sexual relationships therefore draws upon the precedents in Jewish tradition in being neither condemnatory nor supportive. We view the revival of some type of formalized though non-sexist pilagshut–connoting an exclusive, committed sexual relationship without benefit of kiddushin–as undesirable. The pilegesh status was appropriately rejected by the developing Jewish tradition.
Nevertheless, while we would neither sanction nor sanctify such relationships, we are cognizant that they will continue to exist, as they have throughout Jewish history. Given this fact, we are by no means indifferent to the way that the two parties to such a relationship might treat each other. Indeed, we do not deny that such relationships could possess ethical standing, insofar as they are not marked by manipulation, deceit, or foreseeable harm. The absence of kedushah should never imply a vacuum of musar (morality): the two individuals involved in this relationship, like those involved in any human relationship, are subject to a moral obligation to accord one another the fullest measure of respect, honesty, and consideration.
In the final analysis, however, it should be remembered that Judaism asks far more from each one of us than ethical behavior alone. It asks us to distinguish our sexual behavior in the most exalted–kadosh–context possible. This unequivocally implies that marriage should be the goal for our sexuality. It would as a consequence be inconsistent with our position to condone non-marital sexual relationships, since it is within marriage that the sexual union finds its true home of kedushah.
NOTES
1 BT Sanhedrin 21a.
2 Yad, Melakhim 4:4. Rashi (to Gen. 25:6) indicates that a pilegesh is distinct from a wife in that the former has no ketubah, but he says nothing about kiddushin. While this could be taken to imply that some form of kiddushin was used for the pilegesh, this would conflict with the sense of the Gemara, as Nachmanides (to Gen. 25:6) points out.
3 Anson Rainey, “Concubine,” Encyclopaedia Judaica 5:862.
4 Understandably, the pilegesh could serve as a precedent for us only to the extent that we subject the institution to a “gender-neutral” interpretation. That is to say, although the biblical pilegesh was a female and although a male could not legally be considered a “concubine,” the existence of this practice suggests to us at least the possibility of a formal, long-term sexual relationship between an unmarried man and an unmarried woman.
5 Yad, Ishut 1:4.
6 Yad, Melakhim 4:4.
7 Hasagat Harabad to Yad, Ishut 1:4.
8 See Rashi to Deut. 23:18.
9 Resp. Harashba Hameyuchasot Laramban, no. 284.
10 Rama, Even Haezer 26:1.
11 Resp. Rivash, no. 398.
12 That marriage is a mitzvah is derived from Deut. 24:1. See Yad, Ishut 1:2; R. Shelomo Luria, Yam Shel Shelomo, Yevamot 2:11; Resp. Tzitz Eliezer 1:27, par. 18.
13 While R. Ya`akov Emden suggested in the eighteenth century that pilagshut ought to be allowed (Resp. She’elat Ya`avetz 2:15), his is very much a minority opinion.
14 Resp. Achiezer 3:23. See also Resp. Igerot Moshe, EHE 1:55, where the prohibition of pilagshut is simply assumed.
15 Resp. Radbaz 4:225; 7:33.
16 Kiddushin, often translated as “betrothal,” is a legal relationship much more permanent than that which we customarily designate as “engagement. Following kiddushin, the couple are “married” in the sense that the relationship can be broken only through death or divorce. Nonetheless, the couple are prohibited from having sexual contact until marriage (nisu’in; chuppah).
17 BT Ketubot 12a.
18 BT Ketubot 7b.
19 BT Yevamot 69b and Kiddushin 75a.
20 Otzar Hageonim, Ketubot, pp. 18-20, and Yevamot, p. 166; Mordekhai, Ketubot, ch. 132.
21 Yad, Ishut 10:1; SA EHE 55:1.
22 Kol Bo, no. 75, quoted in Isserles, EHE 55:1.
23 See L.M. Epstein, Sex Laws and Customs in Judaism (New York: Ktav, 1948), 128.
24 A mamzer, “bastard”, in Jewish law is the offspring of a woman who could not contract a legally valid marriage to the child’s father and whose sexual relationship entails the Toraitic penalty of karet; M. Kiddushin 3:12 and Yevamot 4:13. Since this is not the case with an unmarried man and woman who could potentially marry each other, the child suffers no legal blemish whatsoever.
25 H. Maccoby, “Halakhah and Sex Ethics,” in Walter Jacob and Moshe Zemer, eds., Dynamic Jewish Law (Pittsburgh and Tel Aviv: Rodef Shalom Press. 1991), 136.
26 ARR, no. 154, at p. 483.
27 This is the wording of the “Mission Statement” (Interim Report) of the C.C.A.R. Ad Hoc Committee on Human Sexuality, 1996, p. 5. It is a telling indicator of the current thinking of many Reform Jews on this subject that marriage is nowhere mentioned within this document, and hence no reference is made to it being the ideal context for human sexuality. To the contrary, in the section entitled “Brit–covenantal relationship,” the “Mission Statement” holds that “For sexual expression in human relationships to reach the fullness of its potential, it should be grounded in fidelity and the intention of permanence…A sexual relationship is covenantal when it is stable and enduring and includes mutual esteem, trust, and faithfulness.” These statements, of course, could equally apply to long-term non-marital relationships.
It is also worth noting that the language of the “Mission Statement” is similar to that found in “This is My Beloved, This is My Friend: A Jewish Pastoral Letter on Human Sexuality” (Draft #6: April 11, 1994) by Rabbi Elliot N. Dorff, for and with The Commission on Human Sexuality of the Rabbinical Assembly, which states: “Nevertheless, committed, loving relationships between mature people who strive to conduct their sexual lives according to the concepts and values described above can embody a measure of holiness, even if not the full portion available in marriage…”. It is significant, however, that by the writing of Draft #8: December, 1994, of this document, the word “holiness” in this sentence had been replaced with the word “morality,” thereby conveying an altogether different sense of the standing of such a relationship.
28 The language of kiddushin is the rabbinic equivalent of the Bible’s notion of erusin (see BT Kiddushin 2b), which reminds us of Hosea 2:21-22: “and I will betroth you unto me forever, and I will betroth you unto me in righteousness…and faithfulness…”.
29 While it is true that where both parties agree to a divorce the beit din will issue it, this legal response was established at a time when the kedushah of marriage was sufficiently clear and that the discarding of marriage for anything less than a weighty reason would have been regarded as anathema.
30 See above at note 24.
If needed, please consult Abbreviations used in CCAR Responsa.