Thinking hard about the nature of the Jewish wedding ceremony can be a disturbing undertaking. As soon as we do so, we discover a dissonance between how we may conceptualise relationships between men and women and how they were understood by the Tanach and the rabbinic tradition. Early sources describe a world of relationships that was thoroughly non-egalitarian. Deuteronomy 24:1 is the primary biblical source that shows the man as the active party both in taking and rejecting a wife: “When a man takes a woman and masters her, and it happens, if she does not find favour in his eyes, for he finds in her something vile, he may write for her a document of cut-off; he is to place it in her hand and send-her-away from his house.” This imbalance is reflected in the earliest rabbinic writings about marriage (Mishnah Masechet Kiddushin Chapter 1), which place the acquisition of a wife in the context of the acquisition of other commodities such as slaves and animals (“She is acquired by money, by document, or by sexual intercourse”). The halachic (Jewish legal) implication of this inequality is that it is only the woman’s status that changes substantially when she marries and not the man’s: she goes from being a “p’nuya” – “an available single woman” – to being “Eshet-Ish” – “woman-of-a-man”. Equally, only she is liable for the harshest punishments under the law should she be sexually unfaithful to her husband.
Given that the central act in a traditionalist Jewish wedding is still an act of acquisition (where money, generally in the form of a ring, passes from the man to the woman), anyone choosing to get married mindfully in this way will need to think through their relationship with tradition itself in a profound manner. There are many ways of justifying the continuing use of this Kiddushin ceremony. We can refer to other more egalitarian sources as a means of off-setting the essentially non-egalitarian nature of Kiddushin. We may assert that we are free to re-imagine the meaning of Kiddushin whilst remaining true to its forms. We might choose to tolerate a difference between tradition and ourselves in an act of obedience to the system. We might attempt to defer utterly to tradition and allow it to determine the meaning of our primary relationships. We might simply choose not to study at all and to view the wedding as a personal act that has no reference to the past.
Some scholars have suggested that a radical change to the wedding ceremony may be necessary in our day. In Jewish law (halacha), in order for Kiddushin to be valid both parties must consent to the contract undertaken. This means that the woman may need to consent to “being acquired”. Professor Meir Feldblum has written on the current halachic implications of the lack of informed consent of women at the time of marriage. Feldblum writes that “in light of women’s efforts in our day to achieve equality in all spheres of life, there is a presumption, even a categorical presumption, that many women were they to be informed would in no way agree to the acquisition nature of Kiddushin/marriage.” Most women are not informed by their rabbis of what they are agreeing to, and for Feldblum this undermines the full validity of the contract itself. Even worse, if the woman does indeed know the meaning of the ceremony and states explicitly beforehand that she does not believe in or accept the nature of Kiddushin – something that has happened to me on a number of occasions – what does that do to the validity of their wedding ceremony in Jewish law?
The most radical approaches to the very real problem of Kiddushin involve going back and re-thinking Jewish weddings from first principles, and avoiding basing them on the laws of acquisition. The American academic Rachel Adler has done just that in her groundbreaking book, “Engendering Judaism”. Her solution involves a ceremony rooted in the Jewish law of partnership, shutafut, rather than the law of acquisition. The central act of such a ceremony replaces the kinyan of Kiddushin, where the man gives an object of value to the woman, with a ceremony where each partner places an object of value into a bag which they then raise together, thereby indicating that they enter into a joint partnership. The terms of their contract are detailed in a “Covenant of Love”, one of the terms of which must be a promise of mutual sexual fidelity for the duration of the partnership. The downside of such an innovation is that it clearly constitutes a radical break with the tradition of a hundred generations of marrying Jews. Many will balk at the very idea of changing such a well-established ritual; many couples will also want their actions and words when they stand under the chuppah to be fully aligned with those of their ancestors so that their ceremony draws directly on those in the past. Others will, however, be driven by the need for a different kind of alignment – one between the wedding ceremony and the lived life of the couple.
One significant advantage of this partnership or shutafut ceremony is that it takes place between equals, and the obligations taken on by the participants are intrinsically fully egalitarian. This opens the pathway for shutafut to operate as a method of conducting homosexual marriages in Judaism. Kiddushin-based ceremonies, with their intrinsically hierarchical nature, are less suited to such marriages. The Masorti rabbis in the UK are currently proposing that shutafut rather than Kiddushin is adopted as the legal halachic basis for allowing gay marriages to take place under the auspices of our synagogues in the UK. Whereas Kiddushin between two men or two women is expressly impossible under classical rabbinic law, a partnership agreement between gay couples will be halachically binding and may reflect more closely the nature of their relationships. Many straight couples are already using shutafut rather than Kiddushin/kinyan as the basis of their Jewish wedding, so shutafut is by no means reserved exclusively or even primarily for gay couples.
In short, while it is not considered possible at this stage for gay couples to choose Kiddushin/kinyan as method of conducting a gay wedding, shutafut is a method open to all couples looking for an uncompromisingly egalitarian wedding ceremony.