UNMARRIED COUPLES AND TEMPLE MEMBERSHIP

QUESTION:

There are in this community a number of couples who are living together as man and wife though not formally married. They do not consider themselves married. They are just living together. Some of them say that they expect to be married someday, and some have no such intentions. Some of them have children from this or from some previous relationship (legal or non-legal). A number of these couples have asked to join the temple, and their children (in the case of some of them) to join the religious school. The temple rules at present have provisions only for a family membership, not individual membership. Should we accept these couples as family members? (Asked by Rabbi Sheldon J. Harr, West Palm Beach, Florida.)

ANSWER:

THIS QUESTION WILL, unfortunately, come up many times and in many places. In the present state of relaxed morality, many couples are living together as if husband and wife, without any form of marriage. This is especially true in the resort areas of our country, where many people live detached from their older family ties. Besides young people who live together without marriage, there are many older, retired people who are living together and who, in order to retain their full Social Security, are not married legally. What is the status of such couples in Jewish law and also in civil law, and what should be the relation of the synagogue to them? What membership rights do they have?

It must be stated at the outset that the status of such people in the law of the various states must have a bearing upon our decision, first because we are citizens of our respective states and must respect its laws, and secondly because the laws of the state (dina d’malchuso) have a certain standing in Jewish law. Of course, in general, Jewish law accepts only the civil and not the ritual law or religious law of governments; for example, when some European governments forbade Jewish ritual slaughtering, Jews resisted the law. Marriage as an institution is both civil and religious. It is not a sacramental matter only, but involves many civil relationships, property, inheritance, all of which obligates the Jewish legal system to be concerned with the civil law of marriage.

I consulted a legal authority who informed me that from the point of view of the civil law, such couples are violating the laws against fornication and so are liable to punishment if any official bothered to pursue the matter. But whether punished or not, they are violating the law of the land. Some states have provision for common-law marriage. For a couple not formally married to have the status of common-law marriage, the parties must refer to each other and introduce each other, respectively, as “my husband,” “my wife.” This is not true of these couples. They do not declare or proclaim themselves husband and wife. They are just living together and so are violating the laws against fornication. And now, as in the case mentioned here, they are asking that this illegal status of theirs be acknowledged formally and publicly by a Jewish congregation by admitting them as a family couple to temple membership.

The status of such couples in Jewish law is somewhat more difficult to explain than their status in state law. As to the Jewish law involved, we must make a distinction between the ancient Jewish law and the law applicable in more recent centuries. According to the ancient law as stated in the Mishnah (Kiddushin 1:1), sexual intercourse in itself was one of the three ways of instituting formal marriage. If a man and a woman had sexual relations, and the man declared (with the woman’s consent) that he meant this sexual act to be an act of marriage, the couple was thus formally and legally married. Thus in ancient times, if couples such as these wanted it to be so, their very living together could constitute a legal marriage. But for many centuries now this primitive form of marriage has been abolished (see Shulchan Aruch, Even Hoezer 26:1 and especially 26:4). Therefore these couples cannot be considered in Jewish law as married couples, but their relationship may have a certain status in the law. If a man lives with a woman without marriage, and if this is a relatively permanent relationship, and if the woman lives with him alone and not with others, she has a definite status in Jewish law. She is called a pilegesh (concubine).

Now having a concubine cannot be entirely forbidden in Jewish law. In Bible times the Patriarchs Abraham and Jacob and the Kings David and Solomon and many other honored Biblical characters had concubines. Of course their children were not deemed full members of the family as far as inheritance was concerned. Abraham gave gifts to the children of his concubines and sent them away, but only Isaac, his child by his legitimate wife, Sarah, was his legal heir (Genesis 25:6). Thus all through the Biblical period the concubine had a legal, if not an honored, status.

But the Biblical status of concubine has long been virtually abolished in Jewish life (see the famous responsum of the Ramban, Moses ben Nachman, in the “Responsa Ascribed” # 2 8 4, in which he warns against permitting this concubinage). The Talmud (Sanhedrin 21a) describes a concubine as one without a marriage document ( ketuba) and without having had a marriage ceremony ( Kiddushin). Ramban amplifies this description as follows: She resides in the man’s house, she is kept for him alone, and her children are called by his name. It is clear from this description that what he and the Jewish law call a “concubine” is what we would today call a “common-law wife.” It is this sort of half marriage which technically is permitted in Jewish tradition, even though Maimonides said that only the kings of Israel were permitted concubines (Yad, Hil. Melachim). All in all, it would be difficult for the later law to prohibit the common-law wife (or concubine) since, as the authorities say, all the great men in Scripture had concubines.

Yet though Scripture offers so much precedent for the commonlaw wife, the Ramban, while acknowledg-ing that one is permitted to have one, nevertheless urges the rabbi who questioned him on the matter to prohibit such practice entirely lest it lead to adultery (z’nuss) and general looseness of morals (p’ritzus).

It is to be observed, however, that the couples referred to in the question have a much lower legal standing than that of concubine (common-law wife). First of all, the state from which the question comes has no legal provision for the status of common-law wife, and second, these couples say that they may be married sometime in the future but they do not claim to be married now. They are just living together. Therefore they are simply living in adultery. As Maimonides says (Ishus 1:4): “Whoever has relations with a woman without marriage incurs punishment by Torah law.” So, too, Joseph Caro, in his commentary Magid Mishna (ad l o c) , says: “Whoever has relations with a woman without intending marriage violates a positive commandment of the Torah.” Clearly, then, both the civil law and the law of the Torah consider these couples to be living in violation of the law. This fact must determine the relationship of a congregation to such couples.

Let us assume that within the congregation itself there are rumors that certain members of the congregation are living together in this manner. It is not our duty to investigate every such rumor and to think of expelling such people from the congregation. They are indeed sinners, but it is a long-established principle that sinners have the right to remain in a congregation. In fact, as the Talmud says (Kerissus 6b), no fast day service is genuine unless sinners are included in the congregation. (See the response on homosexuality in Contemporary Reform Responsa, p. 25.)

Those within the congregation who are said to be sinful in this way (if such there be) are not to be deprived of the membership privilege they already have. But it is quite another matter to admit into membership nonmember couples who live openly and confessedly in violation of Jewish and civil law. Since this congregation has only family memberships, then to admit them as a family is tantamount to a public declaration by the Jewish community that those living such a life truly constitute a Jewish family and we formally acknowledge it as such. This we must never do.

It would seem to be wiser for the congregation to change its membership rules and to have, besides family membership, individual membership. A Jewish individual may join the congregation, and if he is sinful in one way or another, he needs the congregation. If he is notorious, the congregation may not honor him (or her) by some special status, but mere membership is the right of every child of Israel. We will do nothing to give official religious approval of the couples and confer on them the revered name of “Jewish family,” but we will admit all Jewish individuals to membership.

As for the children, they have the full right to enter the religious school. Children of Jewish mothers, whether the mothers are married or not, are Jewish children. They may be illegitimate Jewish children if the couple is so closely related in blood as to make the union incestuous, or if the female partner of the couple is already a married woman. Only then is the child illegitimate in Jewish law. But even an illegitimate child has every right in Jewish law, including, of course, the right to a Jewish education, and our duty to educate him. The only right he lacks is to marry into a regular Jewish family. But the children of these unions, in which the union is neither incestuous nor the woman already married, are legitimate Jewish children, and without any question, it is our duty to educate them.

If the congregation will not change its rules, permitting individual membership, as I think it should, and if therefore these people cannot join the temple since we will not accept them as a family, then let them be required to pay a tuition fee for the education of their children. Whatever be their mode of life, it still is their duty, and it is also our duty, that the children receive a religious education.