Note: links to the Brit Ahuvim documents themselves are at the bottom of this post
There has been considerable
discussion of marriage recently in the Conservative movement, in the wake of
the addendum by Rabbis Dorff, Reisner, and Nevins to their teshuvah concerning homosexual relationships (and the concurrence
by Rabbi Aaron Alexander).
I continue to be of the opinion
that we should be discussing the way all Jews, gay and straight, are getting
married. Like many rabbis today, I find a great deal in the structure of hilchot kiddushin, hilchot ketubot, and hilchot gittin (the laws of betrothal,
marriage, divorce, and attendant documentation) to be extraordinarily
problematic. While we may spin the facts as we please, and dress them up as
fancifully as we may be able to do so, ultimately, the halachah as it stands
has Jewish men purchasing Jewish women to be their wives. And while we may
invent all sorts of halachic devices to attempt to ameliorate the problems and
distasteful nature of this situation, ultimately, we modern rabbis simply lack
the halachic authority to rewrite the code of hilchetei kiddushin, ketubot, v’gittin from Line 10, as it were.
If I believe that this situation
is untenable, it is an opinion I come by honestly: I had a good upbringing. In
1999, my mother, Rabbi Rachel Adler, won the National Jewish Book Award for
Theology, for her book Engendering
Judaism: An Inclusive Theology and Ethics. The book had been her Ph.D.
thesis, completed in 1997, and she had worked on it for the better part of the
ten years previous. The final section of the book presents a groundbreaking critical
analysis of traditional Jewish marriage, and offers a halachic solution. Rather
than attempt to radically reconstruct the involved areas of halachah,
rebuilding them from scratch; or turn them inside out in an attempt to
transform them into something they can never be, she simply sidestepped the
issue: drawing on hilchot shutafut (partnership
law), she constructed an alternative form of marriage, the Brit Ahuvim.
She wrote a shtar brit (contract for the covenant, analogous to a shtar ketubah in a kiddushin marriage) which was utterly egalitarian and equitable,
creating partnership without uneven distribution of power or authority, and
which was readily usable by straight or gay couples. It was in accessible
Hebrew, cited covenants between God and Israel as "precedents," and
created a relationship completely separate from and outside of kiddushin, or erusin (betrothal), or pilagshut
(concubinage). It was something new, but something which did not seek to
outright replace kiddushin: those
Jews who wished to continue using kiddushin
marriage were able to continue to use the original Rabbinic formulae, and
those who were dissatisfied with kiddushin
had a completely non-kiddushin
alternative which was nonetheless grounded in classical halachah.
I should probably pause, just to
note that, while I love and respect my mother greatly, we disagree on many
philosophical issues-- as might be expected, given that she is a Reform rabbi,
and I am a Conservative rabbi who has been known to flirt with Modern
Orthodoxy. So when I say that I personally support and embrace the Brit Ahuvim
as a solution, that is not mere nepotism speaking, but a considered evaluation.
When the time came in my life
that I was fortunate enough to be engaged to be married, I spoke to my
then-fiancee Julie about using the Brit Ahuvim. Julie, a Reform rabbi also, had
been a favorite student of my mother’s, so it was hardly surprising that she
was quite agreeable. What I was interested in finding out, though, was whether
she objected to revising the original Brit Ahuvim, in part for purposes of
style, but in larger and more important part, in order to deal with halachic
issues that my mother had not dealt with in creating the ritual-- loopholes or
decisions in composition that posed no problem for her as a Reform halachist,
but did for me as a Conservative halachist...and which I believe may have
contributed to the failure as yet of the Brit Ahuvim to make significant
inroads in the Conservative movement as an alternative marriage. Fortunately,
Julie had no objections to such revisions, and was willing to jointly take on
the project with me.
The most significant incomplete
element of the original Brit Ahuvim was that no coherent methodology for
dissolving the relationship existed. This was compounded by the fact that,
while I felt and still feel that the Brit Ahuvim in its original form was
wonderfully, even audaciously, innovative and creative-- making an entirely new
ritual that, nonetheless, felt
traditional-- it seemed to me that any Modern Orthodox bet din, and possibly
even some Conservative batei din, if faced with a separated couple who had been
married with a Brit Ahuvim, would surely rule the ceremony a safek kiddushin (presumptive or de facto
kiddushin), and demand that the woman
receive a get (traditional divorce,
which can only be initiated by the man, among other problems)-- precisely one
of the situations my mother was attempting to avoid. Nothing like the Brit
Ahuvim had ever been done before, and it seemed to me that more was needed than
the intent of the ritual’s creator to give halachic grounds to a traditional,
yet open-minded, bet din that this ought not to be summarily judged a safek kiddushin. The absence of
methodology for dissolution seemed, in addition to creating potential pitfalls
for future divorces, a perfect opening for traditional dayanim (judges) to say, "Well, it must require gittin-- how else is one to dissolve the
relationship? Even the author cites no alternative dissolution method. And if
it needs a get, it must be a safek kiddushin."
Now, I am a realist: I
understand that many, if not most, Orthodox batei
din (courts)-- Modern or not-- faced with a separated couple married by
Brit Ahuvim, are most likely going to declare a safek kiddushin and require a get,
no matter what halachic safeguards or methods are built into the shtar and ritual, simply to preserve the
principle that only kiddushin is a
valid Jewish marriage, if not deliberately to quash similar novellae from
Liberal Judaism from taking hold. But in addition to my confidence in the
halachah of the Conservative movement, my hope is that, now or at a time soon,
there might be just one or two Modern Orthodox batei din progressive enough to
recognize that Brit Ahuvim really could exist side-by-side with kiddushin as a halachic way to
facilitate shalom bayit (“household
peace”) in Beit Yisrael (the House of Israel). I don’t even hope that an
Orthodox rabbi will actually espouse Brit Ahuvim as a valid choice of equal
stature with kiddushin, much less actually
perform a Brit Ahuvim marriage. I only hope that there might be three or six
Orthodox rabbis willing to say that Orthodox Jews ought not, lechatchilah (“in the first place,” or
“before the fact,” the go-to or halachically preferred observance), use Brit
Ahuvim marriage, but any Jew who did use Brit Ahuvim marriage, b’di eved (“afterward” or “after the
fact,” an observance not usually done, but defensible as effective if already
done) does not require a get.
My long-term hope is that Brit
Ahuvim marriages, in addition to addressing the egalitarian and feminist
concerns of relationship power and commodification of persons, could also help
alleviate the agunah (“anchored” or
“chained” women, who wish to divorce their husbands, but whose husbands refuse
to give them a get, leaving them
unable to remarry or have children with anyone else, lest the children be mamzerim-- products of adultery, roughly
analogous to bastards) problem, if a day should come when it is popular enough
in Conservative circles that it begins to cross the gap into Modern Orthodoxy--
not necessarily in rabbis adopting it, but in Modern Orthodox baalei teshuvah (formerly secular Jews
“returned” to traditional practice) asking their rabbis for it, or perhaps even
going to "Conservadox" rabbis for Brit Ahuvim marriages, forcing
Modern Orthodox rabbis to address it as a de facto issue on the ground.
And in the meantime, my
short-term hope is that more and more Conservative rabbis, presented with a
carefully-constructed halachic alternative to kiddushin marriage, will be willing to adopt its use, and present
it alongside kiddushin as an option
for people who come to them asking to be married. My mother has presented a far
better argument than I could ever construct for why Brit Ahuvim is more
empowering and respectful for Jewish women than kiddushin. But as a Jewish man, I can vouch for the fact that I
feel that my marriage began 100% better for neither having purchased my wife,
nor having had to enter into a legal arrangement with which I did not agree, or
have any intention of honoring on its face, or which I had to deliberately
invalidate, or which I had to dress up in the guise of something less
disagreeable. And I feel better for knowing that, in the (hopefully unlikely)
event that I turn into a naval bi’reshut
ha-torah (see previous blog post), and my wife desires a divorce, she can
take action on her own behalf, and need never worry about being at the mercy of
someone set on using her desire for independence and freedom as a means of tormenting
her.
In any case, in redesigning the
Brit Ahuvim (the original of which can be found in the last section of my
mother’s book, which I would be remiss if I did not advocate everyone
purchasing), we took some very specific steps. We expanded slightly on the
obligations of the couple to one another as part of the relationship, most
notably strengthening the requirement for mutual sexual and romantic fidelity.
One of the unfortunate hallmarks of kiddushin
is that, while it requires punctilious fidelity from the woman, it still
technically permits the man to have sex with other women, so long as those
other women are not married, and so long as he continues to regularly fulfill
his marital obligations to his wife. By custom, of course, and in the dictates
of several rabbinic responsa, we today presume that a Jewish man ought to be
faithful to his wife. But nonetheless, there is more than adequate room in the
halachah as it stands to argue that he need not be, or that if he is not, it is
unfortunate, but not transgressive. Part of the existential nature of Brit
Ahuvim is to equalize the relationship between the couple, and while the
original Brit Ahuvim indicated mutual fidelity as part of this, we felt that it
would be beneficial to make the notion a little more pointed.
We also described the conditions
for dissolution of the relationship, and developed a methodology of
divorcement. Just as the relationship is entered into by shtar and declaration, it is also ended by shtar and declaration. Either party or the couple together may
initiate divorce, for any reason of their choosing, by composing a document
indicating termination of the shutafut,
signed by one or both of the parties, and two witnesses. We considered having
some kind of divorce ritual, to mirror the ritual of the Brit Ahuvim (which
centrally features the bride and bridegroom each placing an item of value into
a sack, which is together lifted up by the couple-- a method of initiating a shutafut drawn directly from the
Gemara), but in the end, it seemed better to leave divorce as something easy,
purely legal, and not invested with too much ceremony, so as not to place an
emotional burden on people. Many individuals create their own personal rituals
for dealing with divorce, and that seems a healthier response than
over-ritualizing the process formally. We also indicated that the dissolution
of the Brit Ahuvim must be accompanied by secular divorce in a court of the
land, in order to be completely valid. We felt that this would reinforce the
idea that Brit Ahuvim is not to be taken lightly, and we also felt it would act
as a safeguard, to ensure that a shtar
of divorcement drawn up in haste or in passion by one of the parties, even if
witnessed properly, would not take hold legally without the completion of an
extensive process, something unable to be completed in the heat of the moment.
And we did our best to create
halachic safeguards against later determinations of safek kiddushin. We put a declaration directly into the text of the
shtar brit that it was not a kiddushin; and we put a t’nai (conditional clause) into the shtar that predicates the existence of
the shutafut on the condition that,
in the event of the couple separating, no bet
din amongst Israel calls what occurred a safek kiddushin (doing so, then, should void the shutafut ab initio). We also, in
designing the ritual ceremony for the Brit Ahuvim, had the officiant directly
ask both bride and bridegroom under the chuppah
if they were willing to abide by the terms set forth in the shtar brit, and if they understood that
what they were entering into was not kiddushin,
and that their marital relations were not to be considered bi’ah l’shem kiddushin (“intercourse for the sake of establishing kiddushin:” kiddushin marriage can be effected by having sex, and
traditionally, rabbis mostly have presumed that sex between unmarried people is
for that purpose).
Again, we fully understood that
a bet din could still find simple
arguments to invalidate the shutafut
and call the Brit Ahuvim a safek kiddushin,
but we simply wished to provide both halachic safeguards for Conservative batei din, and any kind of halachic
recourse for a progressive Modern Orthodox bet
din looking for anything on which to rely so as to avoid having to require
a get from a divorced woman married
by Brit Ahuvim.
We deliberately included several
additional references to covenants made between people, not just between Israel
and God. We did this because we were concerned that by only invoking the
covenant between God and Israel, what is being invoked is an eternal and
unbreakable covenant, which, while wholly appropriate for God and an entire
people, is not actually a good model for human marriage, as it leaves no
recourse for divorce. So we invoked the covenant between Avraham and Avimelech
(Gen. 21), and the covenant between David and Yonatan (1 Sam. 18): covenants of
equal partners, with the best of intentions, but very human, and subject to the
vagaries of human life.
We also had both bride and groom
sign the shtar brit, along with four
witnesses: two provided by the bride, two by the bridegroom. We did this for
several reasons: first, this makes one less participatory honor that the bride
and bridegroom must figure out how to divide amongst their friends and family;
but second, they may choose to have two male and two female witnesses (we
divided by gender: I had two men sign, Julie had two women; but it could be
done one-and-one by both parties), and this means that there should be no
question of witness validity in any movement (so long as all the witnesses are
Jewish: we recommend asking non-Jewish friends to sign the civil marriage
license as witnesses).
The other innovations to the shtar shutafut were largely aesthetic
and stylistic, to make the language a little more ornate, and resonate a little
more strongly with traditional Rabbinic idiom, and perhaps to reinforce a
little more strongly the nature of the obligation of the couple to establish a bayit ne’eman b’Yisra’el (“faithful
household within Israel,” a common Rabbinic descriptor of the good Jewish
household).
My mother’s original Brit Ahuvim
as written had no real set liturgy or rite of ceremony, save for including the
Sheva Brachot; though she made some excellent suggestions as to what might be
done. I think that she felt that this would provide freedom to Jews using the
Brit Ahuvim to create their own rituals and ceremonies. But Julie and I felt
that the average person getting married actually does not want to create their
own marriage ceremony: they want the rabbi (or other officiant) to show up and
know what to do and say. They may want to add or subtract certain things, but
they want a finished template to work off of. We also felt that, as the average
Jew is not a trained liturgist or halachist, it’s not necessarily fair to make
their marriage ceremony a do-it-yourself job-- especially if one hopes for
anything approaching halachic consistency. So in creating a tekes Brit Ahuvim (rite or ceremony of
Brit Ahuvim), we set forth a marriage ceremony which follows the basic pattern
of a kiddushin ceremony (clearly
something intended by my mother, as she set forth in her book), because
successful rituals should appear and feel relatively seamless. They should not
feel like novellae. Or, in other words, when the marriage ceremony is over,
everyone should feel like they’ve been to a Jewish marriage, and should
instinctively shout "mazel tov" and want to dance. But we made
changes, of course, to reflect the nature of the Brit Ahuvim.
Some are minor changes: instead
of the bride circling the bridegroom (a custom originally rooted in creating
safeguards against demons and the evil eye, but which nonetheless smacks of
subservience), the bridegroom and bride together circle the chuppah (bridal canopy).
But some are major: the first
part of a kiddushin ceremony is birkat erusin (the blessing for formal
betrothal). With the Brit Ahuvim, not only is a betrothal not required, but we
wish to avoid erusin, since once
betrothed, a get is necessary. But birkat erusin also forms a liturgical
introduction or prologue, setting tone and context, giving us a ritual and
halachic foundation for why we are all gathered together, and what is to come
next. We couldn’t just excise it and leave nothing. So we created a replacement
brachah. The original birkat erusin
runs as follows:
בָּרוּךְ אַתָּה ה' אֱלֹהֵֽינוּ מֶֽלֶךְ הָעוֹלָם, אֲשֶׁר קִדְּשָֽׁנוּ בְּמִצְוֹתָיו, וְצִוָּֽנוּ עַל הָעֲרָיוֹת, וְאָֽסַר לָֽנוּ אֶת הָאֲרוּסוֹת, וְהִתִּיר לָֽנוּ אֶת הַנְּשׂוּאוֹת לָֽנוּ עַל יְדֵי חֻפָּה וְקִדּוּשִׁין. בָּרוּךְ אַתָּה ה', מְקַדֵּשׁ עַמּוֹ יִשְׂרָאֵל עַל יְדֵי חֻפָּה וְקִדּוּשִׁין
Blessed are you, Adonai our God, sovereign of
the universe, who sanctified us with your commandments, and commanded us
concerning sexual prohibitions: who forbade us from relations with betrothed
women, but permitted us relations with those to whom we are married, by chuppah and kiddushin. Blessed are you, Adonai, who sanctifies your people
Israel by means of chuppah and kiddushin.
Now, this brachah is clearly a justification for kiddushin marriage, and for the sexual ethic that kiddushin represents. It speaks of
commandments to Israel, but presumes that they are addressed to men, and the
passive subjects are women. Nothing like this would do for a Brit Ahuvim brachah. Instead, we composed a brachah that justified halachic
innovation and creative ritual:
בָּרוּךְ אַתָּה ה' אֶלֹהֵינוּ מֶלֶךְ הָעוֹלָם אַשֶׁר קִדְּשָׁנוּ בְּמִצְוֹתָיו וְצִוָּנוּ לַעֲשׂוֹת גְבוּלִין גְבוּלִין אִסוּרִין וְהֶתֱרִין, וְנַתָן לָנוּ חֻקִים וּמִשְׁפָּטִים לְהַבְחִין בֵּין הֶקְדֶשׁ וְחוּלִין, וּלְהַבְדִיל בֵּין טְמֵאִים וּטְהוֹרִים: גַלוּי וְידוּעַ לְךָ שֶׁאִם לֹא נְתַתָּם לָנוּ וְלֹא לִימַדְתָּנוּ אִי אֶפְשַׁר לָנוּ לְהִתְקַיֵּם וּלְהִיוֹת עָמְךָ. בָּרוּךְ אַתָּה ה' הַנוֹתֵן תוֹרָה לְעָמוֹ וּרְשׁוּת לִפְסוֹק הָלֳכָה לְדַייַנֵי בְּנֵי בְרִיתוֹ, לַעֲשׂוֹת קְשָׁרִים טְהוֹרִים וְחַיִים קְדוֹשִׁים
Blessed are You, Adonai our God, Sovereign of
the Universe, who has sanctified us with mitzvot,
and commanded us to set boundaries of varying kinds, and proscriptions and
permissions; and has given us laws and legislations that we may discern between
the sanctified and the mundane, and separate between the pure and the impure.
Behold it is manifest and known before You that had You not given us these
things, and had not taught us those things, it would be impossible for us to
continue, or to be Your people. Blessed are You, Adonai, who gives Torah to His
people, and jurisdiction to interpret the halachah
to the judges among your covenant-partners, that they may make pure bonds
between people, and create holy lives.
Rather than use birkat erusin as a stylistic template,
we used birkat asher yatzar, which is
said in the mornings and upon performing natural functions. While it may seem a
little odd to base a wedding brachah
on something said after going to the bathroom, it actually makes sense: asher yatzar praises God for creating us
with complex physical systems that sustain our lives, and acknowledges that
those systems require care and attention, for if they fail, we are lost. By the
same token, this birkat gevulin u’f’sikat
halachah we made praises God for giving us a complex system of Torah that
sustains our spiritual life and holiness, which requires care and attention,
for if it fails, we are lost. And considering that the central focus of a Brit
Ahuvim wedding is not merely a halachic innovation, but is a halachic contract,
functioning in a halachic system, and subject to arbitration by a halachic
court, a blessing praising God for giving us jurisdiction to make halachah
seemed entirely appropriate to set the tone and act as liturgical prologue to
the wedding to follow.
The basic outline of our tekes Brit Ahuvim follows my mother’s
suggestions, it merely fleshes them out and formalizes them with what we hope are artful phrases and ritual processes pleasing to the aesthetic of the Jewish tradition. The introduction
of the birkat gevulin u’f’sikat halachah
is the major innovation we added.
I do not believe that there
can be understatement of how much Conservative Judaism (and perhaps, one day,
other halachic communities as well) needs to embrace this model of alternative
marriage-- not just for GLBT couples, but for heterosexual couples as well. To
be a halachic community requires not only commitment to halachah and the
halachic process, but a willingness to use the array of tools in the
halachist’s toolbox creatively and skillfully.
The inherent disequity of kiddushin marriage is absolute. It is
irreparable. Yet as halachic Jews, we are bound to accept it as part of the
system of Jewish Law-- we are bound to accept that we do not have sufficient
authority to make the kind of fundamental changes to the system that might make
kiddushin marriage equitable, fair,
and a relationship model that we should be proud to embrace. We can either try
to ignore those realities, make cosmetic changes to kiddushin to pretty it up (so long as no close examination of it is
done); or break kiddushin, and ignore
the halachic ramifications of invalidating every marriage without regard to the
continuation of aginut (“anchored”
women) or mamzerut (halachic
bastardy); or we can make insufficient additions to ketubot to try and ameliorate as best we can the disequity into
which ketubot, kiddushin, and gittin force us. None of these choices
are completely effective or halachically creative. The cosmetic changes to kiddushin and ketubot largely rely on the ignorance of the average Jew, who will
not be aware of what they are really doing, how kiddushin marriage really works, and why their changes are
meaningless. The breaking of kiddushin
is not only halachically ineffective, it only serves to create further enmity
amongst the halachic communities, because it makes a half-hearted attempt to
destroy without creating anything to balance: it is not good practice. And the
insufficient additions to ketubot,
while indeed serving as moderately effective ameliorations of the social and
ethical damage ketubot and kiddushin cause, are ultimately
ineffective at addressing the moral need for halachah to be observable, and for
us to be able to be truly proud of what we do, since we are supposed to be
doing it as sanctification of our lives, to draw us closer to Hashem.
Brit Ahuvim ultimately
respects the halachic system more than any other solution: it leaves hilchot kiddushin et al. alone, and
simply refuses to engage with them. If some Jews actually understand what is
transpiring in kiddushin and can be
proud of it, then fine: let them use kiddushin.
And for those of us who recognize the fundamental problems in kiddushin, let’s not even go there.
While we have no authority to restructure the kiddushin system from the ground up, we do have the authority to
create something entirely halachic yet new: a marriage which is equal and fair,
whose construction and terms we can ensure are based in respect for one another
as tzalmei elohim (images of God) and
as fellow-partners in the covenant of Sinai-- a marriage which, if innovative,
is nonetheless grounded in halachah and tradition, able to be bound by rules.
Solutions like this are
halachically creative, and powerful. They recognize that while we may not have
the ability to reshape anything and everything set down by the Tannaim and
Amoraim, we are nonetheless their successors and inheritors, and we have the
jurisdiction and the right to continue their work within the limits of our
powers. Torah she-b’al-peh (the Oral
Torah) evolves, and our thought evolves with it, our theology evolves as we
understand God better by virtue of understanding His creations better: our
world and each other. If halachic Judaism is to survive and thrive as a living
system, and not merely an ossified shell of its former self, we need to embrace
Brit Ahuvim and similar kinds of halachic approaches to the problems of Jewish
law and life.
My mother gave us this
incredible, foresighted, amazingly workable solution. Julie and I have only
given it makeh b’patish (the final,
finishing work, completing an otherwise finished whole product), but that
finishing should, we hope, make it a truly usable tool for halachic communities
to embrace. As such, we encourage everyone to use, to pass around, to repost,
and to discuss the attached documents of the shtar brit ahuvim and the tekes
brit ahuvim. This is the future of Jewish marriage: let’s start it now.
Attached here are the documents of the Brit Ahuvim 2.0 for examination by all, for engaged couples to present to their officiants for use, and for use by rabbis and other officiants. The text can be altered to suit, for example, in shifting gender and or pronouns as needed or desired.
-Ami and Julie
