TRR 8-10

MEMBERSHIP OF UNMARRIED COUPLE

QUESTION:

A Jewish couple, living together in sexual relationship, has applied to the congregation for membership as a family. May the congregation accept them as such? (Asked by Rabbi Seymour Prystowsky, Lafayette Hill, Pennsylvania.)

ANSWER:

This question involves, first of all, the relationship of Jewish law to non-Jewish law. The principle of diva d’malkhuta is that non-Jewish law is given validity by Jewish law when the non-Jewish law is just and applies to all citizens equally. If, for example, a non-Jewish law was an oppressive decree announced by some medieval monarch against the Jews specifically, it could be evaded without incurring a sin in Jewish law See the full discussion on the matter in Contemporary Reform Responsa, p. 102.

Now it is obvious that the state laws involving adultery are not specifically directed to any race or religion but equally to all citizens of the respective states. Therefore Jews are religiously obligated to obey the state law by the principle of diva d’malkhuta. For us to admit as a family two people who are living in a relationship which is illegitimate in state law, would be a violation of state law in their case, a law which we are Jewishly in duty bound to obey.

Let us, then, consider what is the relationship of the civil law to this couple living together without marriage. If either one of the couple is already married to someone else, then their living together constitutes an adulterous relationship which is certainly a violation of the law of the state. Or if the couple is too closely related by blood, although not in a marriage bond with someone else, this would constitute an incestuous relationship, also forbidden by general law. But if either of the couple is not bound to another person and not too closely related to each other, then, in most states, their living together in sexual relationship constitutes no violation of the law.

However, we must now consider the specific status of Jewish law with regard to this couple. Of course, when there already exists a marriage bond of either of the couple to someone else, or when they are too closely related by blood, then, of course, their relationship is absolutely a flagrant violation of Jewish law and these two people cannot possibly be acknowledged by the congregation as being a family. But what is the Jewish status of a couple living together who are not related by marriage to another or by blood to each other? Is this relationship, which is not illegal in general law, legal or illegal in Jewish law?

Maimonides (Yad Hil. Ishut 1:4) bases his decision on the verse in Deuteronomy 23:18 which declares: “There must be no harlotry among the daughters of Israel,” and he says that if a man lives with a woman without the regular ritual of marriage, without, therefore, also a ketubah to protect her rights should he sends her away or die, then such an arrangement is a violation of the Biblical law against harlotry. This decision is cited in the listing of commandments in Minhat Hinukh, Commandment 570. The Shulhan Arukh (Even Haezer 26:1) itself is still more clear as to this prohibition : “A woman is not considered a wife unless by way of regular marriage (qiddushin) but if they have sexual relationship without marriage, it has no status at all (eino klum); furthermore (continues the Shulhan Arukh) if he has sexual relationship with her even meaning it to be marriage, she cannot be counted as his wife. On the contrary, we should compel them to part.” Therefore, whatever may be the status of such a relationship in the laws of the various states, it is considered a sinful one in Jewish law, and so we have no right to give it any status by admitting these people to a family membership in the congregation.

Furthermore, if such a couple would be admitted, the congregation may very well receive applications from other couples whose relationship (one or the other being married already) is flagrantly adulterous. Shall we then start a new investigation of all such couples, especially since all of them are in violation of Jewish law? It is far better not to open this “Pandora’s box” and yield to the rather brazen demand that this union, illegal in Jewish law, shall be acknowledged as a legal family by the synagogue.