Wednesday, July 11, 2012

Brit Ahuvim 2.0: The New Standard Halachic Alternative to Kiddushin Marriage

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.

The original materials of the Brit Ahuvim 1.0 can be found in Engendering Judaism, by Rachel Adler. 

-Ami and Julie


  1. I've studied both the issue itself and Rachel Adler's book. Congratulations on a great article and great halakhic footwork.
    You ought to translate this into Hebrew so that it can be circulated here in Israel, too.
    Just one thing -- please write your blogs on a lighter background! Why make it so difficult to read?
    Deborah Greniman

  2. Kol Ha'kavod! What inspiring and inspired work.

  3. This is wonderful! Very thoughtful and creative, nicely grounded in halakah.

    I am a ketubah artist and wonder if I might offer this text for us by my clients?

    Feel free to contact me at mail[at]

    Thank you!
    Ruth Mergi


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