What constitutes a marriage?

• What is kiddushin?
• What is the ketuba?
• The role of chuppah
• Problems with kiddushin
• Is it still a marriage without kiddushin?
• Is this “K’dat Moshe v’Yisrael”?

What is kiddushin?

In the historic Jewish wedding ceremony, the groom gives the bride a ring (or, in theory, any object of value) and says:

הֲרֵי אַתְּ מְקֻדֶּשֶׁת לִי בְּטַבַּעַת זוֹ כְּדַת משֶׁה וְיִשְׂרָאֵל.

Behold you are consecrated unto me, with this ring, according to the Law of Moses and Israel.

This exchange, called kiddushin, is the central, and in many ways, single most important part of the wedding. “When she consents, through her silent acceptance of the gift, a marriage has taken place, even if all other familiar aspects of the wedding are missing” (Source). The word kiddushin comes from the root meaning sanctify, but also has connotations of setting something aside. In effect, the groom is setting the bride aside for himself alone.

The legal mechanism by which this sanctification / exclusive designation is achieved is that of kinyan, or acquisition. This mechanism is discussed in the Mishnah (Kiddushin 1:1) as one of the three ways a marriage can be enacted:

הָאִשָּׁה נִקְנֵית בְּשָׁלשׁ דְּרָכִים … נִקְנֵית בְּכֶסֶף, בִּשְׁטָר, וּבְבִיאָה.

A woman is acquired in three ways … She is acquired by money, by document, or by intercourse.

The Gemara (Kiddushin 2a-2b) explains that being acquired with money is the same process that Avraham used when he purchased a field from Efron (Gen. 25:10), or the purchase of fields in Jeremiah 32:44, since they use the same verb kanah. Thus, it deduces, the groom is essentially purchasing the bride with the object of value. The Gemara goes on to explain that betrothal is called kiddushin because “דאסר לה אכולי עלמא כהקדש” – that he is rendering her forbidden to everyone else like consecrated property.

Many scholars assert that even the rabbis of the Mishnah did not understand this kinyan to be an actual purchase. Both Beit Hillel and Beit Shammai agreed that the monetary value—and centuries later the value of the ring—need only amount to a perutah, a coin of minimal value, demonstrating that the acquisition here is symbolic.

Rabbi Dov Linzer: This shift from kinyan to kiddushin is reflected in halakhic writings as well. While Neziv states that a husband owns his wife as sexual property, Hatam Sofer states that in kiddushin there is no purchaser and no object being purchased, but – echoing an earlier statement by Rashba – both husband and wife are reciprocally and in parallel obligating themselves to one another.

Thus, it is in the use of a ring for kiddushin, and in our very use of the term kiddushin, that we symbolize our understanding of kiddushin to not be the acquisition of the woman by the man, but rather the sanctification of the union of the bride and the groom in the partnership of marriage.

What is the ketuba?

Prior to this, a ketuba will have been signed by two witnesses. (The signing can take place beforehand at a tisch or under the chuppah at this juncture after erusin and before the sheva brachot. Those who sign it beforehand will typically have it read publicly under the chuppah it before the ring is exchanged.) The ketuba is a shtar, a contract, (its full is be shtar ketuba) that specifies the groom’s financial and household obligations to his wife. The two witnesses affirm that the groom is taking upon himself those obligations.

Chabad.org: It is also not an affirmation of perpetual love. It is a statement of law that provides the framework of love. The ketubah restates the fundamental conditions that are imposed by the Torah upon the husband, such as providing his wife with food, clothing, and conjugal rights, which are inseparable from marriage. It includes the husband’s guarantees to pay a certain sum in the event of divorce, and inheritance rights obligatory upon his heirs in case he dies before his wife.

It is not a mutual agreement; the wife agrees only to accept the husband’s proposal of marriage. It is assuredly not a bill of sale; the man does not purchase the bride. In fact, the ketubah represents the witnesses rather than husband or wife. Through this instrument they attest to the groom’s actions, promises, and statements, and to the bride’s willing acceptance of the marriage proposal.

The ketuba was seen as so important that sages, including Rambam, required a ketuba and prohibited marital relations without one (Introduction to Hilkhot Ishut, Shulchan Aruch, Even HaEzer 66), even though a marriage could theoretically be enacted by relations alone. However, they do recognize leniencies in the event it was not possible to provide a ketuba at the time of marriage.

For the ketuba’s stipulations to come into effect, the groom performs a symbolic kinyan on the ketuba, taking and lifting an object (often a pen or kerchief) from the rabbi or a witness, who is acting as a representative of the bride, to signal his acceptance of the ketuba and its terms. He thus “acquires” the terms of the contract. The closing of the ketuba reflects these events: “וקנינא … במנא דכשר למקניא ביה” – “we have completed the acquisition with an item that is suitable for the acquisition.” (A full text and translation of the historic ketuba can be found here, and a line-by-line explanation here.)

There are two basic understandings of the role of the ketuba in the wedding ceremony: that it supports the marriage or that it helps enact the marriage.

Jane Kanarek: The rabbinic ketubah is primarily a financial contract, a written document that articulates the husband’s financial commitment to his wife should he predecease or divorce her. It does not effect the couple’s marriage. The ketubah places the husband’s property on lien to fulfill the document’s financial obligations. In rabbinic and medieval times, the ketubah thus served both as an incentive against divorce and as financial protection for the woman.

An alternative conception is that the ketuba is indeed the kind of document that can effect the marriage as specified in the Mishnah.

Rabbi J. David Bleich: Rabbi [Samuel Eliezer] Stern cites two very early sources [in his monograph Seder Ketubah ke-Hilkhatah (Bnei Brak, 5753)] that regard the ketubah as more than an evidentiary document reciting the groom’s debt to his bride. … Judging from the contents of two geonic sources, the practice seems to have been common in at least some communities during the early post-talmudic period. In a responsum published in Teshuvot ha-Ge’onim, ed. Simchah Assaf (Jerusalem, 5787), no. 113, Rav Hai Ga’on decries use of a ring rather than a shetar as an innovation that should be abolished. …

The concern expressed by Rav Hai Ga’on seems to have been that, in the absence of the evidence supplied by a properly witnessed shetar of betrothal, it was relatively easy to deny that a marriage had actually occurred. The terminology of the ordinance ascribed to R. Yehudah Ga’on seems to indicate that the ketubah itself served as a shetar of betrothal.

The format of the wedding ceremony included in the siddur of R. Sa’adia Ga’on provides that the bridegroom declare to the bride that she is consecrated to him “with this goblet and with its contents and with this ketubah and with what is written therein” and further instructs the groom to take the ketubah in his hand, deliver it to the bride and declare, “Take the ketubah in your hands so that with it you enter my domain according to the law of Moses and Israel.” Rabbi Stern asserts that R. Sa’adia Ga’on describes a ceremony in which two separate modes of betrothal are employed, i.e., presentation of a goblet as an object of value and delivery of the ketubah as a shetar kiddushin.

Rabbi Stern also cites two somewhat later sources that speak of the ketubah as fulfilling a secondary role as a shetar kiddushin. R. Aaron of Lunel, Orḥot Hayyim, Hilkhot Ketubah, sec. 1, writes, “The groom takes the ketubah and gives it to the bride … for, if the earlier betrothal was not effective, the [betrothal] will be effective by means of shetar for thus is written in [the ketubah]: ‘Be thou my wife in accordance with the law of Moses and Israel.’” Similarly, Teshuvot R. Eliezer me-Trashkun, no. 56, writes that the phrase “Be thou my wife” endows the ketubah with the status of a shetar kiddushin with the effect that if, as at times is the case, a borrowed ring is used in the marriage ceremony the marriage is effected by means of shetar.

It would appear from the Mishnah that a marriage can be enacted either by an exchange or by contract, and that this second understanding of the ketuba provides a kind of belt-and-suspenders assurance. In either case, the ketuba is clearly an instrumental part of the legal marriage process.

The role of chuppah

The Mishnah’s third method of effecting a marriage—intercourse—could be construed to be fulfilled by the chuppah. [See also Chuppah.]

Rabbi Dov Linzer: What is the chuppah? This is never explained clearly in the gemara, and we find in the Rishonim three primary models: (1) The couple being in a private space, for the sake of nissuin, where they have the opportunity to have sex (Rambam Ishut 10:1-2); (2) The wife entering into the husband’s house (Ramban Ketuvot 4a, and Ran, Ketuvot, on Rif 2a); and (3) an act that demarcates and designates the couple (or the woman) as married, i.e., a form of communal recognition of their status (see Tosafot Yoma 13b, s.v. li’hadah¸ and Mordechai Ketuvot 132). Of course, a fourth model is possible, which would combine 1 and 2, and require entering the husband’s house in privacy (there are those who see this as Rambam’s position), or a possibility of combining all three models (this seems to be the position of some Geonim, see Ittur, Birkhat Chatanim).

Now, the first model is clearly built on the fact that according to the Torah, sex effects nissuin, and sees the case of yichud as designating that reality of married life – the sexual relationship. The second model, in contrast, is built on the Torah’s use of the term bayit, household (this is stated explicitly in Ran), and sees chuppah as designating the second reality of married life – the building of a household and the shared economic commitment. The third model works on a separate plane altogether, and relates more to the communal recognition of the couple as a married couple.

Thus, depending on how one reads these sources, public declarations of commitment and/or the isolation of the bride and groom following the ceremony during yichud could be thought to function as a performance of the third mechanism for marriage (since there is the suspicion of relations when a man and woman are alone together—see Yichud). Those inclusions in the ceremony would then be additional assurance that the marriage is active, making the process a belt-and-suspenders-and-elastic-waistband ordeal.

Problems with kiddushin

As should be readily apparent, aspects of this ceremony and its legal underpinnings don’t sit well with many people. Those reasons include:

• Discomfort with a woman being “purchased” like property
• Unequal stature of the groom and bride in this transaction
• Unilateral commitment of the bride to the groom without a reciprocal commitment

Rachel Adler: “The problem with marital kinyan is not simply that it is unilateral, but that it commodifies human beings… kinyan of persons violates values conscientious people have come to regard as moral goods.” (Engendering Judaism (Harper, 1998), p. 191.)

Feminist scholars in the mid-20^th century were the first to analyze and tackle these issues. They proposed solutions that sought to “ungender” the wedding ceremony and devised egalitarian options. Same-sex marriages pose additional challenges. If there are two brides or two grooms, we are faced with these issues of non-egalitarianism as well as basic structural issues of who would even be assumed to acquire or consecrate the other.

At the same time, the wedding ceremony is one of the most recognizable and ubiquitous rituals in Judaism, and carries a great deal of emotional resonance. While some couples want to avoid kiddushin for philosophical reasons, some emphatically want to find a way to use it and mitigate its problems.

CJLS: Our hesitations about calling for same-sex “kiddushin” are threefold: First, the ancient model of kiddushin, which may be translated either as sanctification or designation, is an inherently non-egalitarian model of marriage. The original concept from antiquity, when polygamy was permitted, was for a man to designate a woman for himself in a one-way exclusive arrangement. She was exclusively his, but he was not exclusively hers…

While some heterosexual couples may see in these new models of brit (covenant) and shutafut (partnership) for same-sex couples a basis for abandoning the traditional model of kiddushin (sanctification), Conservative Judaism has taught us to respect ancient liturgy and to minimize modifications of text, focusing instead on interpretive evolution. We no longer see the traditional Jewish wedding as hierarchical. It is truly a meeting of equals both in substance and in style. We realize that our conviction does not settle the matter of egalitarian heterosexual marriage ceremonies for some rabbis and couples, and we welcome additional studies on the subject, but that lies outside the focus of our responsum. Because for gay couples there is no established wedding liturgy, we have used this opportunity to create a new ritual that uses the egalitarian language of partnership from the outset.

A second source of hesitation simply to apply the kiddushin model to same-sex couples flows from the previous one. According to Jewish law, a woman who has been designated as a wife by a Jewish man requires a Jewish writ of divorce (get) from him in order to terminate the marriage and marry again. Although this practice is mandated by a specific passage in the Torah (Deut. 24:1-2),13 it has been the source of great suffering in many Jewish communities, because a woman whose husband refuses her a Jewish divorce even after a civil divorce remains agunah, “chained” to him and unable to remarry. …

Finally, the very language of the traditional Jewish wedding liturgy and its documents, and likewise with the traditional Jewish divorce ceremony and its documents, is gender specific. Neither fits same-sex couples. Because of these considerations we have decided to create a new halakhic structure for same-sex unions and separations that is fully egalitarian and that avoids the severe liabilities of the get. … Just as our halakhic conclusion grew out of classical halakhic sources, so too should our ceremonies and documents grow out of the sources of Jewish tradition.

Steve Greenberg: Even if heterosexuals might want to sustain the frameworks of kiddushin, why should gay couples do so? Because there is no venerable tradition of same-sex union upon which to build and no gender difference to enact ritually, however benignly, why would gay couples want to adopt kiddushin? Given that there are no traditions in regard to same-sex unions, why not be totally free to choose a mode of effecting and celebrating our unions that has no taint of inequality or commodification? …

Monogamy in biblical tradition was primarily a limit in regard to female sexuality. If both parties are indeed “sanctified” to the other, then there would be no room for non-monogamous frames of marriage for either partner. Some members of the gay community have claimed that this restriction is a feature of heterosexual marriage that ought not to be carried into gay marriage. The structure of the kiddushin, as focused as it is on the giving over of one’s sexual body exclusively to one and only one partner, would not tolerate such notions of open marriage.

Given this understanding of kiddushin, gay couples committing to an exclusive relationship may be inclined to appropriate the kiddushin ritual and give two separate gifts of a ring, each accompanied by the formal sanctification, “Behold, you are consecrated to me by this ring according to laws of Moses and Israel.”

Jane Karanek: Adler’s ceremony raises important issues: First, if kiddushin is broken and primarily about the acquisition of a woman by a man, do we want to recreate that paradigm in same-sex weddings? Or, free from halakhic precedent, perhaps we would rather move outside of kiddushin and utilize other rabbinic legal paradigms to initiate the marriage relationship. Adler proposes shutafut. Another model could be derived from the legal category of vows or oaths. Second, do we want to have one marriage ritual for all Jewish couples? In other words, is the type of relationship being created as important as the sexes of the couple? If so, perhaps one ritual is the appropriate choice.

Greenberg’s piece likewise raises important issues for consideration. Unlike Adler, he proposes that the narrative of same-sex marriage differs from that of straight marriage. If so, do we to want to consider creating a different ritual, or partially different ritual, for same-sex marriages? In addition, does marriage between two men have a different narrative than marriage between two women, thus necessitating different rituals?

Greenberg asks us to consider that kiddushin may be the appropriate legal framework for betrothal. If Greenberg is correct, then we must consider whether kiddushin is about creating a particular connection between a man and a woman or whether kiddushin may better be viewed as ritualizing and legalizing an exclusive and monogamous emotional and physical bond between two Jews. In this view, kiddushin is less about the sexes of the couple and more about the type of relationship being created, a relationship that exists only between these two people. Finally, do we want to retain the legal function of huppah as the second-stage of marriage, the shift in household, but perhaps create another ritual that frames the meaning of huppah differently than the sheva berakhot do?

To move a step further, what would it mean to step outside this framework of kiddushin and nissu`in entirely? Would a marriage ritual that did not utilize at least some of the symbolism of either kiddushin, huppah, or sheva berakhot function as effective ritual? Would the couple feel themselves to have undergone this significant change of status? How will guests experience the ritual? Ritual change is always a complicated matter — raising legal, historical, emotional, and visceral issues. This essay has aimed to lay out the framework of the classical marriage framework as well as two paradigms for altering it. Adler and Greenberg may have different answers about what is broken in Jewish marriage ritual, but standing at the center is one question: how do we sanctify our relationships in the context of ancient ritual and law? That is our challenge when thinking about and enacting same-sex marriages.

Rabbi Aaron Weininger: The celebration of kiddushin for same-sex couples affirms the visibility and welcoming of coupled LGBT Jews within the community and the tradition, not apart from or as a second-class addendum to it. Whether the two partners are of the same gender or not, we wish to value commitment as a constant in guiding two adult Jews who stand under the huppah. Such commitment may be embodied and emboldened by the classical ceremony of kiddushin, strengthened by the contemporary aggadah we bring to the inherited halakhah. …

Retaining kiddushin for same-sex and opposite-sex couples allows us to preserve powerful ancient words recited under the huppah, evocative holy words that make couples feel visible and welcomed as part of the story of the Jewish people, and simultaneously establish more egalitarian ideals of partnering. Just as rituals such as tallit or tefillin are embraced by a growing number of women, and often enriched with feminist insights, so too might the ritual of kiddushin be embraced by Jews of different sexual orientations and gender identities. This does not mean that all wedding ceremonies for all couples should be identical. Egalitarianism at its best creates greater accessibility to the tradition without mandating uniformity in practice and erasure of difference as the tradition is creatively interpreted (recall Rachel Adler’s warning in her work Engendering Judaism about women becoming “honorary men”). Just as feminism has changed the face of Judaism, the distinct experiences of LGBT people will change the face of Judaism.

Is it still a marriage without kiddushin?

Way back in 1995, Rabbi Stuart Kelman was insistent on not using the word “marriage” with respect to a same-sex ceremony, since “marriage” had a specific meaning within Judaism:

Therefore, I propose the creation of a new category of relationship to be called a “covenant of love” (brit rayut). The term generally used for the union of gays and lesbians, “commitment,” is inadequate to convey the complexity of this new brit. Same-sex unions are not something new (davar chadash). What is “new” is that the union to be sanctified stands in a new class of covenental relationships – a class that is not forbidden by the Torah and that is different from the relationship called “marriage.” Based on the discussion above, a permanent, loyal, loving, committed, monogamous relationship between two Jews who are gay or lesbian may be sanctified and “arranged” by a rabbi. This ceremony is one of “covenanting,” not “marriage,” which is a term to be used exclusively for heterosexual unions. A well-defined ceremony of brit rayut uniting two gays or lesbians has to be created, as does a ritual for separation (should that become necessary). These rituals may have some of the same characteristics of a marriage, yet they need to be distinct. Marriage should be a term reserved for heterosexual unions, which our Jewish tradition clearly prefers.

When Rabbi Kelman wrote that in 1995, he was one of the first Conservative rabbis to recognize a union of a same-sex couple, without the backing of the movement. He later officiated at one in 1997. Other rabbis of the time were careful not to call the ceremonies they officiated “weddings” since those unions had no civil weight, and they did not want to imply otherwise. In the years since, the Conservative movement has fully recognized such unions, as have many governments. It is safely assumed that the opinions of these trailblazers have changed since then. Moreover, every proposal included here from at least the last twenty years begins from the premise that those non-kiddushin ceremonies are in fact weddings, and the unions marriages, and names them as such.

CJLS: Having considered arguments in both directions, we are convinced that the nomenclature of gay marriage and divorce should be equal and clearly stated as such, not obscured in ambiguous language. Thus, even though the halakhic mechanism for binding the couple together is distinct from the traditional model of kiddushin, the result is still a Jewish marriage. The status of this relationship in civil law will depend upon the jurisdiction within which the ceremony occurs and the reciprocal recognition rules in the state where the couple resides. (2012)

Some continue to use language carefully to distinguish kiddushin from shutafut or other wedding mechanisms, particularly those who emphasize clarity in their halachic practice. That is the practice used here, with “wedding” referring to any official ceremony of union, and the specific Hebrew terms used with intent. Colloquially, the English terms “wedding” and “marriage” are in common use, and there is no longer a need to differentiate between the unions of mixed- and same-sex couples.

Is this “K’dat Moshe v’Yisrael”?

The statement made upon the exchange of rings—“Behold you are consecrated unto me with this ring”—recognizes the kiddushin as being “according to the Law of Moses and Israel.” But is a same-sex kiddushin indeed according to the Law of Moses and Israel? Some may argue that same-sex marriage is too new an invention to be legitimately claimed to be according to the Law of Moses, even if we do support it. Alternatively, if couples use legal mechanisms for their marriages that are not kiddushin, can a wedding based on those constructions be said to be according to the Law of Moses at all?

CJLS: The traditional ceremony of kiddushin is said to be k’dat Moshe v’Yisrael, according to the laws of Moses and Israel (Tosefta, Ketubot 4:9; Yerushalmi, Ketubot 29a). We acknowledged in our responsum that same-sex intimate relationships are comprehensively banned by classical rabbinic law, yet our teshuvah cited the oft-repeated halakhic principle, gadol k’vod habriot shedoheh lo ta’aseh shebaTorah, “Great is the demand of human dignity in that it supersedes a negative principle of Torah.” (B. Berakhot 19b; B. Shabbat 81b, 94b; B. Eruvin 41b; B. Megillah 3b; B. Menahot 37b.) On this basis, and on the strong scientific evidence we cited that current discriminatory attitudes toward gay men and lesbians do indeed undermine their dignity, evidenced by their much higher rates of suicide, we concluded that for observant gay and lesbian Jews who would otherwise be condemned to a life of celibacy or secrecy, their human dignity requires suspension of the rabbinic level prohibitions so that they may experience intimacy and create families recognized by the Jewish community. For this reason we wrote in favor of the creation of ceremonies of recognition of loving, exclusive, and committed same-sex partnerships. We acknowledge that these partnerships are distinct from those discussed in the Talmud as “according to the law of Moses and Israel,” but we celebrate them with the same sense of holiness and joy as that expressed in heterosexual marriages. As rabbinic interpreters of halakhah, we believe that our ruling is an authentic expression of דת משה וישראל , the laws of Moses and Israel. That said, we realize that the model of ceremony that we here offer is discontinuous with the model created by our ancient rabbis, and that it is not yet established and accepted by the majority of rabbis in our time.

Rabbi Aaron Alexander: There is nothing that I fundamentally disagree with in what is quoted above. Yet, in my opinion, while same-sex partnerships are distinct from that which was discussed in the Talmud, this should not preclude the usage of proclaiming, publicly and officially, these holy relationships as ‘according to Laws of Moses and Israel’. I agree with the authors that their original ruling in 2006 was “an authentic expression of דת משה וישראל ,” and see no reason for rabbis and couples to exclude that powerful reference from a marriage ceremony they engage in together. Furthermore, I believe this phrase is a crucial part of creating true equality and acceptance. In using such language we believe we are further affirming to our GLBTQ community members and their allies that we insist on their equality under the canopy and with the full force of our sacred tradition.

Rabbi Aaron Weininger: When any couple declares about their union under the huppah “…k’dat Moshe v’Yisrael” (like the laws of Moses and Israel) we keep in mind that any egalitarian ceremony for opposite-sex or same-sex couples will be like, not carbon copies of, ancient marriage ceremonies that often saw marriage as an act of acquisition. Moreover let us remember that it is not enough to say “…k’dat Moshe,” but to add “V’Yisrael.” In recalling Israel alongside Moses, we remember the ongoing development of our people as we, like Israel, enter into a deeper relationship with one another and with God when we wrestle. We wrestle lovingly with the past because we wish to come closer to one another and to God in the present.

Rabbi Jason Rubenstein:

הֲרֵי אַתְּ מְקֻדֶּשֶׁת לִי בְּטַבַּעַת זוֹ כְּדַת משֶׁה וְיִשְׂרָאֵל, על דעת המקום ועל דעת הקהל.

Behold you are consecrated unto me, with this ring, according to the Law of Moses and Israel, on the authority of God and of this community.

Rabbis Jaimee Shalhevet and Helayne Shalhevet: Was our marriage “k’dat Moshe v’Yisrael,” according to the law of Moses and Israel? Was this the tradition of Moses and Israel that our sages envisioned? We added the phrase “ha’mitkhadeshet v’ha’mitpatakhat,” the ever-evolving law of Moses and Israel, because we don’t believe that tradition has ever stood still. As times evolve, so too it becomes necessary to change our understanding of the laws of Moses and Israel. Our addition to the traditional text emphasizes this point.

הֲרֵי אַתְּ מְקֻדֶּשֶׁת לִי בְּטַבַּעַת זוֹ כְּדַת משֶׁה וְיִשְׂרָאֵל, הַמִּתְחַדֶּשֶת וְהַמִּתְפַּתַּחַת.

Behold you are consecrated unto me, with this ring, according to the ever-evolving Law of Moses and Israel.

Translations [for “m’kudeshet] include: sanctified, set apart, singled out, made holy, acquired, and consecrated.  We chose “set apart” for our translation as it embodied the equal nature of our relationship and did not lead to an acquisition of one partner by the other.

Eyal Levinson: I suggest “k’havanateinu et dat Moshe Miriam v’Yisrael” — “According to our understanding of the Law of Moses, Miriam, and Israel.” The words, “According to our understanding” are added because unfortunately it is not yet the understanding of the majority of the Jewish people. Moreover this is a clear statement that we understand what we are doing in relation to each other, to our people, and to God. Adding such a clause may help some rabbis to perform such a ceremony. Miriam the prophetess is added to reflect our contemporary attempt to make Judaism a fully egalitarian religion.

Steve Greenberg: Because at present there is no widely accepted Mosaic or rabbinic rule that could be said to ground this sort of “kiddushin” ritual for gay couples, it may be best to exclude the latter phrase. However, this excision leaves a significant vacancy in the ritual. The phrase “according to the laws of Moses and Israel” lets us know that the words spoken and the commitments undertaken have a social context and sanction in a particular community. Marriage as an institution has little meaning unless there is a communal administration of some sort within which it makes a difference. Unfortunately, we cannot already have what we are in the process of building. Because we are only now creating the norms and the community that will take same-sex marriage seriously, we cannot now have the authority we seek. In the meantime, couples belonging to religious communities that support same-sex marriage might add “according to the custom of . . .” and add whatever synagogue or communal or religious body is the acting authority.

Another possibility is to contextualize the commitment in a much more personal way by adding the phrase “before my family, my friends, and my God.” The advantage is that this works without any real communal sanction and that it rings true to many people that what is most important to them is that their commitment be honored both by their close associates and by God. Its weakness is that it is so personal that it lacks any frame of convention. Were the couple to change their minds the next morning, they could, in fact, part without a trace, having nothing but their own feelings to which to be held accountable.

This is one of the most difficult aspects of social change. It demands the capacity to act before a stage has been built, to be without any context, indeed to do in order to weave the very context that will make being possible. Dramatic social change always includes a fantasy. It demands that one behave as if the redemption has already come. Gay couples are “marrying” in order to create the very possibility of same-sex marriage as a cultural and legal reality. As such, while there is no “administration” of gay marriage, no solid ground of social or legal responsibility to which to be held accountable, the oath taken before friends, family, and God may be the closest frame to duty that can be mustered.

In the absence of an administration that defines the terms of commitment formally undertaken at a wedding and enforces them, at the very least it would seem important to ensure that both parties actually understand what they can expect from one another, what they are committing to one another before God. In this circumstance, a more specific delineation of the contracted rights and duties to which both parties have agreed would seem to be an important part of the formal ritual. Were couples to entertain such a formulation, then there would be a need for a document drafted by both parties in advance that would address the details. Were such a document drafted, then each member of the couple in turn could place a ring on the partner’s finger and say, “Behold, you are consecrated to me by this ring according to the promises I made to you.”

H&J: Despite R. Aaron Alexander’s affirmation in his concurrence that this can be “kedat moshe veyisrael” we remain unconvinced that it is in fact keeping with the laws of Moshe and Israel. R. Steve Greenberg proposed that it could instead say “according to the custom of [our community]” or “before my family, my friends, and my God.” We found those both problematic as well. The first felt limiting and the second is even more so because it doesn’t recognize people outside of our circle at all. I proposed concluding the phrase “לִפְנֵי עֲדָת יִשְׂרָאֵל” to acknowledge that we are making this affirmation before the greater community. The phrase “adat [bnei] yisrael” seems to appear when the congregation of Israel is bearing witness (eid) to divine instruction. Plus, it rhymes with the original.