CCAR RESPONSA
A Non-Traditional Marriage
5756.14
She’elah
I have been asked to officiate at the wedding of a couple who, while living in the same city, plan to live in separate domiciles after the wedding. This is due to the prospective bride’s desire to live “in her own space” and to the couple’s feeling that such an arrangement will, in any case, allow them to avoid many of the petty squabbles that so often disrupt marital relationships. They are, to the best of my knowledge, sexually intimate with each other, and they have no plans to have children. They are not committed to living separately permanently; however, they also have no intention or goal at present of moving into the same home. May a rabbi, under these circumstances, officiate at the wedding? (Rabbi Peter B. Schaktman, New York)
Teshuvah
There is no question that this marriage, if entered into, would be valid under Jewish law. The halakhah does not require that the couple live under the same roof in order for their relationship to be a legally binding one. All that is necessary in this regard is that the couple be halakhicly capable of contracting a valid marriage and that the ritual which establishes the marital bond (ma`aseh kiddushin) be conducted according to proper form. To be “capable” of Jewish marriage, the couple must both be Jewish[1] adults[2] of sound mind[3] who are not forbidden to each other as arayot, that is, the prohibited sexual unions of Leviticus 18.[4] The “proper form” of kiddushin[5] requires that in the presence of two witnesses,[6] the man give the woman a ring or some other object of monetary value and declare, either in an explicit verbal formula or by behavior which clearly manifests his intent, that he wishes her to he his wife.[7] If she accepts the ring or object in a manner which indicates her freely-given consent to the marriage,[8] the couple are betrothed, though the marriage process is not completed until the ceremony of chupah or nisu’in.[9] One might argue that although their kiddushin may be valid, the couple’s decision to live separately negates the very concept of nisu’in. This is based upon the definition of chupah as the act by which the groom brings his bride into his home and spends time alone with her there, “setting her apart as his wife.”[10] We of course would interpret “his home” to be “their home,” but the point is the same: so long as there exists no identifiable marital home for the couple, no nisu’in has taken place.[11] The problem here is that the tradition knows of other definitions of chupah, some of which do not require that the bride enter the groom’s home at all. Indeed, one of these alternative definitions is our own custom of setting up a bridal canopy as a chupah.[12] Thus, it is quite possible that this couple are validly “married” as well as “betrothed,” even though they have not established and do not intend to establish a common marital home.[13] The question our sho’el poses, however, is one of lekhatchilah, not bedi`avad. It does not concern the validity of the proposed marriage but rather its desirability. He asks whether a rabbi should refuse to officiate at a wedding ceremony when the marital arrangement contemplated by the couple runs counter to the ideal of marriage as put forth by Jewish tradition. Their proposal to live separately, each dwelling in his or her private “space,” and to refrain from having children differs markedly from that ideal. We would not want their particular version of marriage to become a model for others to imitate, and one might argue that a rabbi’s officiation at their wedding would suggest, however inaccurately, that Judaism looks with favor upon the choices they have made. We might add that, as a matter of general principle, rabbis do have discretion in these issues. Rabbis are not mere dispensers of religious services; they are teachers of Torah and interpreters of Jewish tradition. Their function in the community is to draw the attention of their people to a perception of the ideal, whether in thought or in practice. As such, there may be times when a rabbi will find it necessary to refuse a request for rabbinic service when, in his or her considered judgment, to accede to that request would violate either the rabbi’s conscience or understanding of Jewish religious propriety. It is entirely proper for rabbis to say “no” under such circumstances, and we vigorously support their right to do so. We are dealing, however, with a particular case rather than with a general principle. And in this particular case, we do not believe that the rabbi should refuse to officiate at the wedding. It is a long-standing rabbinic practice to show tolerance toward “unusual” marital relationships, even those which may transgress the dictates of halakhah. A clear expression of this position is a responsum authored by R. Yitzchak b. Sheshet Perfet (Rivash), who flourished in Spain and Algeria during the late-14th and early-15th centuries. Responding to a she’elah from the communal leadership of Tunis,[14] he offers his opinion concerning the prospective marriage between a young man and a ninety-year-old woman. The man, who according to the Tunisian authorities was interested primarily in the woman’s wealth, had yet to fulfill his Toraitic requirement to “be fruitful and multiply.” Rivash notes that such a man is forbidden by Talmudic law to marry a woman who was no longer capable of bearing children[15] and that the beit din may coerce him to divorce her.[16] He adds, however, that “I have never heard of a beit din which actually practices coercion in matters like this,” and he refuses to counsel coercion here. For if we wereto insist on the letter of the law (shurat hadin) in this case, we would have to demand divorces in every case where a less-than-ideal marriage has been contracted.[17] The courts would groan under the weight of litigation as the divorced women would sue for their ketubot. In fact, says Rivash, we do not intervene into these marriages, and so long as there is no Toraitic prohibition against them and so long as the couples are happy together, it is best to leave them alone. In the she’elah before him, he suggests that this woman desires a husband who can be a help and a comfort in old age; as this is not a disgraceful thing, we ought not to exercise coercion in an effort to separate them. Rivash’s ruling, in turn, is cited by R. Moshe Isserles as the common rabbinic practice.[18] Rivash’s words apply quite well to our she’elah. This couple wish to enter into a marriage which, though it does not correspond to our conception of the ideal, is indisputably valid under Jewish law.[19] We presume that the rabbi’s refusal to officiate, which constitutes the nearest thing to coercive power that rabbis in our community possess, would not cause them to reconsider their proposed living arrangements. If anything, the rabbi’s negative response would probably provoke them to ask why they are being singled out for tough treatment, why we rabbis do not refuse to solemnize all marriages which depart in some significant respect from the traditional Jewish ideal of home and family. There are today, as in the days of Rivash, any number of such marriages. Yet were our “rabbinic authorities” in the name of consistency to say “no” to all marriages where the couple maintain unusual living arrangements or do not intend to have children, there would be no end to the matter. By refraining from exercising a heavy hand, the rabbi does not thereby “endorse” the couple’s idea of marriage. Rather, as in Rivash’s time, we show tolerance toward their decision because we have no other decent and practical alternative. Yet alongside “tolerance” we would add “understanding.” Note Rivash’s words to his correspondents: although the marriage in question runs afoul of what we consider proper, the couple themselves desire it. A less-than-ideal union, in other words, must not be despised, for it can be a source of much that is good. The same is true in our case. We should not measure this couple’s union exclusively according to our ideal picture of marriage but against the standard of what they themselves wish, of what will bring them happiness and fulfillment. We presume, in the absence of any indication to the contrary, that they love each other and maintain an exclusive sexual relationship. Whatever our feelings concerning their marital arrangement, their intention to stand under the chupah testifies that they seek to affirm the permanence of their mutual commitment. This, without any question, is something we ought to encourage. The rabbi should therefore officiate at the ceremony. In doing so, he or she can maintain communication with the couple and perhaps offer them counseling. We certainly hope that they will some day reconsider their intention not to ring children into the world. And we suspect that their desire to be married nd yet avoid the “petty squabbles” of married life indicates that they have yet to confront with full maturity just what marriage, like any complex human relationship, is all about. There is much they need to consider about themselves and about each other. Like all of us, they have some growing and learning to do. And we believe that their rabbi can be of much help to them along their way. NOTES 1. M. Kiddushin 3:12. 2. Kiddushin performed by minors (i.e., under 13 years for males and under 12 years for females) is invalid. See BT Kiddushin 50b; Yad, Ishut 4:7; SA EHE 43:1. Different rules apply, of course, in the event that the parent “marries off” the child, and these rules vary for males and females. The present discussion, however, refers to a ma`aseh kiddushin performed by the couple themselves. 3. BT Yevamot 49b; Yad, Ishut 4:9; SA EHE 44:2. 4. M. Kiddushin 3:12. 5. M. Kiddushin 1:1 lists three methods of effecting the kinyan: kesef (money); shetar (written document); or bi’ah (sexual intercourse). While any of these methods is halakhicly valid, the use of kesef is the universal custom; Yad, Ishut 3:21. Out of moral concern, the early Babylonian amoraim forbade the use of bi’ah as a method of contracting marriage; BT Kiddushin 12b. 6. BT Kiddushin 65b-66a; Yad, Ishut 4:6. 7. BT Kiddushin 5b-6a; Yad, Ishut 3:1. The wife is the passive party here; she neither gives the money nor recites the formula. If, however, he gives the money and she recites the formula, some authorities suggest the marriage may be valid. See SA EHE 27:8. 8. Marriage, unlike any other kinyan, requires the clear consent of the “acquired” party, the wife; BT Kiddushin 2b and Bava Batra 48b; Yad, Ishut 4:1. 9. BT Kiddushin 10a; Yad, Ishut 10:1. See M. Ketubot 5:2: if nisu’in does not take place (that is, if the betrothed couple do not establish residence together), the husband must provide for the wife’s financial support. The marriage, therefore, remains valid, and many of the legal consequences stemming from marriage are in force. 10. Yad, Ishut 10:1; SA EHE 55:1. 11. See Chelkat Mechokek to SA loc. cit., no. 4: if the groom simply brings his wife to his home for yichud and then sends her back to her own (or her father’s) residence, “this is not nisu’in.” 12. See Isserles, EHE 55:1. Since some authorities define chupah as yichud (bride and groom being alone together), the yichud practiced at the conclusion of a wedding ceremony comes to insure that a valid chupah has taken place according to all opinions. 13. See Derishah to Tur EHE 61, no. 1, who suggests in the name of the Tur that chupah is any special place where the betrothed bride and groom spend time together, even if it is not “his home” and even if they are not totally isolated. 14. Resp. Rivash, no. 15. 15. BT Yevamot 61a; Yad, Isurey Bi’ah 21:26 and Ishut 15:16; SA EHE 1:3. 16. BT Ketubot 77a; Yad, Ishut 15:7; SA EHE 1:3. 17. Rivash mentions the many instances where a father agrees to the kiddushin of his minor daughter despite the Talmud’s warning to the contrary (BT Kiddushin 41a), as well as marriages between the daughters of kohanim or scholars and men ignorant of Torah. “The sages have averted their gaze from such couplings.” 18. Isserles, EHE 1:3. 19. It is this point, of course, which distinguishes this question from that of mixed marriage. The CCAR opposes rabbinic officiation at mixed marriages; see CCAR Yearbook 83 (1973), 97, and American Reform Responsa, no. 149.
If needed, please consult Abbreviations used in CCAR Responsa.