RRR 194-203

Orthodox Aspersions Against Reform Marriages

This problem is involved in the situation which is described in the letter which follows:

“You may be aware that in Great Britain there seems to be now a more or less concentrated attack on the Reform Movement, especially in connection with the acceptance by Orthodox authorities of mar riages conducted in our synagogues. It has gone so far as to cast doubts that Orthodox synagogues would accept such marriages as valid, and it has been inti mated that the Jewish status of children from such marriages may be in question. I speak of marriages among Jewish persons, excluding proselytes.” (From Dr. W. Van der Zyl, Senior Minister of the West London Synagogue, London)

There are certain technical differences between Orthodox and Reform marriages as to witnesses, ketuba, and so forth. Some Orthodox authorities in England have spoken of declaring marriages performed by Liberal or Reform rabbis invalid. Is such a declaration of invalidity justified by the Halacha itself? In general, what is the validity in Orthodox law of marriages in which procedure varies from that which is normally required by Orthodox law?

Orthodox Jewish marriage requires a minyan present at the ceremony, a ketuba and kosher witnesses to the ketuba, kosher witnesses to the declaration of marriage, the giving of the ring, the reciting of the seven blessings, and so forth. While all these observances are required, are they indispensable? Suppose a marriage takes place without some of them; what is it in Jewish law which makes a marriage valid?

It must be noted that this question has been an important one and a practical one for many centuries: for example, in the case of the Marranos in Spain and Portugal who escaped to Jewish communities and said they had been married in a church, or in the cases of civil marriage in modern times. Are such marriages valid?

It is true that there is a considerable disagreement as to what is the basic requirement for the validity of a Jewish marriage, but the majority of opinion, which is becoming increasingly weighty in modern times with the spread of civil marriage, is that the validity of the marriage is not dependent at all upon most of these ceremonial or ritual requirements.

The basic marriage requisite is that the man speaks of his intention to be married and gives the woman an object of some value—”he says and he gives.” And, indeed, the basic ground for marriage is that the man takes the woman into his house and they live together in physical relationship. Now, while this Mishnaic method of marriage (biah) was frowned upon in the Middle Ages by Israel Isserlein (“Terumas Ha-deshen” 209), nevertheless when it does occur the general attitude of the law is that such a marriage is valid. This is based upon the opinion of Rav (b. Ketuboth 72b to 73c), that if a man takes a woman into his house for the purpose of marriage, she cannot be freed from that marriage without a formal divorce (i.e., this simple marriage is valid). The opinion of Rav is based upon the belief that a man does not generally intend his sexual relationship to be adulterous (Eyn Adam Oseh, and so on). How ever, this presumption that the sexual relationship is intended as a marriage relationship, and not as an adulterous one, broke down in later years and was no longer held to be valid; as, for example, in the case of certain Marrano marriages about which some authorities said that, since they could have escaped and did not escape, we no longer apply to them the presumption which we grant to righteous people, that their sexual relationship was meant to be a marriage relationship.

However, suppose the couple thus informally married stay together as husband and wife, and this is public knowledge. Then the fact that they are known to live together as husband and wife proves retroactively their original intention, and the presumption (chasdkah) is thus reestablished and their marriage, therefore, is valid. This attitude is increasingly held by Orthodox authorities, namely, that they follow Rav in the Talmud, that the very bringing of the woman into his house constitutes proof of proper intention and therefore of the validity of the marriage. Thus, for example, Isaiah Trani (Riaz), quoted as part of “Shilte Ha Geborim” to Alfasi to Kiddushin 3, says definitely: “Although there are no witnesses of the marriage itself, or even witnesses that they secluded themselves (yichud), nevertheless it is presumed in their locality that they are man and wife. This presumption is equivalent to clear and perfect testimony.”

This, too, is the basis of the famous responsum of Isaac Elchanan Spektor, of Kovno, in his responsa, “Ayn Yitzchok,” vol. I, Even Hoezer 47, especially paragraph 12. He discusses the case of a Jewish soldier who lived with a Jewish woman without formality of marriage, and then the man deserted the woman. Is she married to him or not? Spektor, on the basis of the above-mentioned laws, says that if they were known as man and wife for thirty days in the city where they lived, the marriage is valid and cannot be broken without a get. So also the late Orthodox authority Yechiel Epstein, in “Aruch Ha Shulchan Kiddushin” 26 : 11, says that if a Jew and a Jewess live together and say that their living together is meant to be a marriage—if it is known to all that they live together the marriage cannot be broken except by a get . The most recent authority is Joseph Henkin, of New York. In his “Perushey Ibra,” chapters 3 and 4, he proves the general thesis that if a man takes a woman for the purpose of marriage and they just live together (under that intention) this is an absolutely valid marriage. Their physical relationship (known in the Jewish neighborhood) makes the marriage as valid as if there were all the necessary witnesses. This source (“Perushey Ibra”) gives the fullest discussion of the laws involved. Rabbi Henkin returns to give a briefer statement of the law in an article in Hapardes, vol. XXXIII, no. 10, p. 12, in which he simply says that if a man lives with a woman and the Jews of the neighborhood know it, it is a full marriage.

Of course, the opposite opinion is also held in the law, that such free unions or, for that matter, civil marriages are not Jewishly legal. However, the opinions cited above that such marriages are legal are sufficiently important that they must be given considerable weight and certainly cannot be brushed aside. Furthermore, the tendency of the law among recent Orthodox scholars is to consider such marriages as Jewishly legal (see Abraham Haim Freimann, “Seder Kiddushin,” U’Nissuin, p. 362).

Now let us assume that Reform or Liberal marriages lack many of the observances which Orthodox law considers necessary to marriage, kosher witnesses (i.e., those who do not violate the Sabbath and other ritual observ-ances), a properly written ketubah, and so forth; nevertheless none of these defects can possibly invalidate the marriage, for the couple live together as man and wife in the knowledge of the community. Add to this the fact that in Reform marriages the intention clearly is to be married according to the laws of Moses and Israel as the contracting parties understand it; then even the objection which some scholars made against the Marrano marriages falls to the ground. Here, in Reform marriages, there is the clear intention of marriage, of Jewish marriage. There is also the living together in the knowledge of the community. In that case, the wedding ceremony may be objected to by the Orthodox, but the marriage itself is absolutely valid according to Orthodox law.

This being the case, any Orthodox official who casts doubt on the validity of such marriage is not only callous to human considerations, but ignores the main development and tendency of Orthodox law.

There is a much more serious aspect to the whole question than the technical implications of the Halacha itself. It involves the unity and the integrity of the Jewish people, and also raises the problem of what should be the mutual relationship of Jewish groups who differ from each other in religious matters.

First of all, it must be realized that Jewish legal tradition on marriage is so complicated and is such a melange of laws and customs that it is only too easy to cast aspersions on the validity or at least the propriety of almost any marriage. For instance, the marriages conducted in Orthodox synagogues in the United States and in England have been subject to bitter attack by those who are more extreme in their Orthodoxy or who give special weight to specific customs. As an example, although Maharil, of the fourteenth century in Mainz, conducted marriages in the synagogue, the overwhelming opinion of Orthodox authorities of the last century has been that it is absolutely forbidden to have marriages within the synagogue; they must be conducted elsewhere, preferably out of doors, or at least under an open skylight in order to fulfill Isserles’ suggestion that marriages should be under the stars as a sign of blessing. Most of the marriages taking place in Orthodox synagogues in England and in America are thus open to serious objection.

Then further, modern Orthodox weddings generally take place in the presence of men and women sitting together. This has been strongly denounced by many Orthodox authorities. Some rabbis turn over the task of reciting the seven blessings to some bystander in order not to recite them in a mixed company. What about the witnesses at these Orthodox marriages? Is the rabbi sure that they are valid witnesses, truly kosher witnesses, and not violators of the Sabbath, and so on? (Cf. Chosen Mishpot 34 : 2, 3, 17 ff.) If the mood of belligerence is permitted to hold sway, as it does in some quarters, then perhaps fifty percent of the Orthodox marriages in England and in America can be deemed improper.

In this regard Orthodoxy is indeed more vulnerable than we are, for to Orthodoxy no commandment is minor and all established customs have their importance. Ben Zion Uziel and also Hillel Posek, of Tel Aviv, both bitterly objected to the mood surrounding the breaking of the glass at weddings (“Mishp’tey Uziel” II, Even Hoezer, p. 431; “Omer” Hillel, Even Hoezer 59). But both indicated that they dared not abolish this aged custom. How, then, can Orthodox rabbis permit the modern custom of holding marriages in the synagogue or in the midst of a mixed company of men and women, and with witnesses of dubious eligibility?

Our own attitude to these variations of observances in both Orthodox and Reform Judaism is based on our general attitude to Jewish tradition. We respect the spirit of both Bible and Halacha, but we seek to find this spirit according to our conscience and judgment, rather than to be bound by specific enactment. We ask ourselves, therefore: What is the spirit of Jewish law in relation to variant types of marriage and the families derived from such variant marriages?

To discover the basic mood of Jewish law, it is not sufficient to study one enactment or another; we must cover whole sections of the law to see if there is one prevalent mood, or a tendency toward a certain consistency. Let us consider, for example, an extreme case, the case of the Karaites. These people, unlike ourselves, are a separate sect, a separate community with no communal cooperation or fellowship with the rest of Israel. They reject outright the entire rabbinic tradition. They have been hostile and have been met with hostility since the days of the Gaon Saadia almost down to our day. One would therefore think that this hostile sect, the occasion of so much controversy, would be rejected outright as a potential part of the Jewish people, that their marriages would be declared invalid and that any intermarriage with them would be prohibited unless after conversion. Certainly this would seem to be the case if one merely judges by the statement of Moses Isserles, Even Hoezer IV, section 37, in which he says it is forbidden to enter into marriage with Karaites because all of them are under suspicion of bastardy and we do not even accept them if they wish to return. Actually this statement of Isserles is based upon one opinion, cited by Joseph Caro in his “Bes Joseph” from a responsum of Rabbi Samson. But this opinion of Rabbi Samson is only one opinion. There are contrary opinions of such various shades that the law of the marital status of Karaites is a vast confusion.

The fullest discussion of the question is found in the responsa of Jacob Castro, of Egypt (died 1610), who was greatly honored by Joseph Caro. In his responsa, “Ohaley Ya’acov” 33, he quotes the various opinions of the great authorities on both sides of the question. An analysis of this large and complete responsum-essay will reveal something of the spirit of the Halacha in this regard. It becomes clearly evident that the rabbis on both sides of the question are eager to find some way in which the Karaites might not be rejected. Those rabbis who say that Karaite marriage is not valid conclude from that statement that therefore their wives are not actually wives, that therefore there is no bastardy among them (since in Jewish law a bastard is the offspring of a married woman and a man not her husband), and that therefore we may marry with them. But those rabbis who say that we may not marry with them base it on the interesting ground that there is the suspicion of bastardy since their mothers are married women, inasmuch as Karaite marriages are valid marriages, if not by rabbinic law and custom, at least by Biblical law. In other words, both sides in dealing with this ancient enemy want in some way to continue the bond with them, either by permitting us to marry them or by declaring their marriages Biblically valid.

This reluctance to exclude Jews from the family fellowship of Israel is a basic one in the Halacha. It can be seen still more clearly from the relationship of the law to an apostate, a mumar. A mumar (which would include a public violator of the Sabbath) is ineligible as a witness, cannot be counted to a minyan, and so forth. He loses all his Jewish rights except one basic one, namely, his marital status. “His marriage is marriage and his divorce is divorce.” This inalienable marital and family status of the apostate (whatever else he has lost) has its clearest expression in the responsum of Saadia, cited in “Ozer Ha Gaonim” (Yevamoth, pp. 196-97), in which he says that a man’s status with regard to his trustworthiness as witness, and so on, depends upon his observance of the commandments, but his marriage rights and status depend upon his birth. Saadia ends his statement by saying firmly, “This is the law and one may not change it.” In other words, whether a man is obedient or disobedient to the commandments can never invalidate his marriage and family rights.

This reluctance of Jewish legal tradition to invalidate marriages when such will break up the unity of our people has its august precedent in the relations of the school of Hillel and the school of Shammai to each other. They disagreed as to the permissibility of a certain form of levirate marriage. Then the Mishnah says, after stating the disagreement (m. Yevamoth 1:4); “Although these forbade and those permitted, these declared unfit and those declared eligible, nevertheless, the school of Shammai never hesitated to marry women from the school of Hillel, nor did the school of Hillel hesitate to marry women from the school of Shammai.” Bertenoro, to make the situation unmistakable, says, “Even though, according to the interpretation of one school, the children of the marriages which they prohibited would be deemed mamzerim, the two groups nevertheless intermarried.”

To sum up: If we keep from getting lost in the maze of separate enactments and customs and look for the basic spirit of our Halachic tradition, we find from the days of the schools of Hillel and Shammai, through the Talmudic and Gaonic laws pertaining to apostates, and in all the complicated laws in regard to the hostile sect of Karaites, that the ruling spirit of the tradition was to maintain as much as possible the unity of our people.

Clearly, then, anybody or any group which seeks to declare another group of Jews unfit to marry with according to Jewish law is violating the basic tendency of the law. Even though certain specific requirements can serve to bolster their opinion, they themselves are not free from similar accusations upon the ground of their own violation of certain other enactments.

But the practical question is, How shall we react to those embittered people who, in the heat of controversy, would break the family unity of our people? There is no answer to this. Those who want to exclude will find reasons for it. We may face them, however, in the confidence that they will not succeed. We are part of the Jewish people. We share its destiny. We join in every great Jewish cause. No legalists will succeed in persuading the majority of Jews—Orthodox, Conservative, or Reform—that we must cease marrying one with another. We may leave the decision as to “Who is a Jew?” to the sound instinct of our people, which has expressed itself magnificently in the spirit of the Halacha: “Let the people of Israel alone [they will find their way]. If they are not prophets, they are certainly the children of prophets” (b. Pesachim 66a).