The Times They Are a-Changing

Haven’t written in a while, and thought I ought to update you on a few results of the Conservative Committee of Jewish Law and Standards which met last week.

Same-Sex Ceremonies

One of the noteworthy results of that meeting was the approval of a pair of models of same-sex marriage / commitment ceremonies by the CJLS. Five and a half years ago we approved, by a tie vote, that homosexuals should have a dignified public place in the Jewish community while respecting the Biblical prohibition against male sexual union (Leviticus 18:22). The authors (myself, Rabbi Elliot Dorff, rector of the American Jewish University in LA and Rabbi Daniel Nevins, Dean of the Rabbinical School at the Jewish Theological Seminary in NY) did not, however, append a liturgical appendix specifying the particular ceremonies we might suggest. Rather, we indicated in a short paragraph the elements that might be included, and, more to the point, that these ceremonies should be joyous and significant, but not make the claim that they were legally the same as the traditional Jewish marriage bond, the bond of kiddushin.

At that time we wrote as follows,

          Surely it is better for gay and lesbian Jews to establish monogamous                  relationships with other Jews and thereby to establish stable Jewish households. Surely promiscuity ought to be no more acceptable among homosexuals than it is among heterosexuals. Surely the establishment of family units is central to the preservation of human dignity. For all of these reasons, we favor the establishment of committed and loving relationships for gay and lesbian Jews. The celebration of such a union is appropriate with blessings over wine and sheheheyanu, with psalms and other readings to be developed by local authorities. Yet can these relationships be recognized under the rubric of Jewish kiddushin (marriage)? Does their dissolution require a ritual of gerushin (divorce)? What format and force would such rituals require? These are complicated and controversial questions that deserve a separate study. We have no objection to informal rituals of celebration for gay couples, including the elements mentioned above, but we are not able in this responsum to address the many halakhic questions surrounding gay marriage. Our paper does not provide for rituals of kiddushin for gay and lesbian couples.

          We are not prepared at this juncture to rule upon the halakhic status of gay and lesbian relationships. To do so would require establishing an entirely new institution in Jewish law that treats not only the ceremonies and legal instruments appropriate for creating homosexual unions but also the norms for the dissolution of such unions. This responsum does not provide kiddushin for same-sex couples. Nonetheless, we consider stable, committed, Jewish relationships to be as necessary and beneficial for homosexuals and their families as they are for heterosexuals.  Promiscuity is not acceptable for either homosexual or heterosexual relationships. The celebration of such a union is appropriate.

Not surprisingly, the Rabbinical Assembly immediately appointed a liturgical committee to consider the question of the appropriate form of such ceremonies. Unfortunately, after three years of work that committee threw up its hands, unable to reach an agreement, and in time the Rabbinical Assembly came back to the three authors of the original paper with the request that we try our hands. Initially,
it should be said that we were not anxious to do this. But as months passed, as NY State approved same-sex marriage, as Maryland may be on the verge of doing, more pressure was coming to bear from colleagues in the field who did not want to create their own liturgy, but wanted some structure that they might adapt, which would be recognized. And so we went to work reviewing what had been done by individual rabbis in the intervening years, not in order to create a definitive ceremony (we
presented two), but rather a model, or template, that could be used by our colleagues; and we sought the approval of CJLS so that these models bore some more legitimacy than Elliot, Danny and I could give them ourselves.

There were two big problems that confronted us at the outset. What constituted the kiddushin, which we had made clear that we were seeking to avoid; and in other regards, how similar to the well-known Jewish wedding ceremony did we want this to be? Kiddushin, we readily agreed, was a form of special acquisition of the bride by the groom, represented by the husband’s declaration when giving the ring –
“You are consecrated to me according to the laws of Moses and Israel.” While most in the movement have moved to double ring ceremonies, the bride invariably responds to the groom’s legal declaration with some floral formula. Ours would be a more egalitarian covenant. There would be a mutual statement, not a one-sided declaration. Something, perhaps, that they might say together.

But when it came to our vision of the ceremony, Rabbi Nevins and I started from polar opposite positions. Rabbi Nevins sought to create a ceremony as much like the traditional huppah ceremony as possible, changing language and the crucial declaration, but otherwise looking to the eye of the beholder as a traditional wedding ceremony. And I argued that the ceremony should be altogether different, so that it not feel like kiddushin-lite, but feel like its own entity. When we sounded out our
colleagues, we found that that split could be found there too. Some colleagues preferred to make a same-sex ceremony resemble the heterosexual one, and others bristled at that suggestion. And so we presented two models, for each rabbi to choose as he or she preferred – one with huppah and seven blessings (sheva b’rakhot) and the other without huppah, using the tallit as its embracing symbol, and
with three brakhot to celebrate the union. At the heart of each we retained rings (we felt, a symbol without which the union would feel incomplete), with a mutual request, “Be my partner…” and a joint prayer.

In the process we came to understand that there are three functioning Jewish legal models of binding agreement: kiddushin (marriage), to be terminated by get (divorce); neder (oath) wherein each party takes a solemn vow, to be terminated by convening a Bet Din (a rabbinic court) to annul the vows; and shutafut (partnership) formed by mutual agreement and terminated by either part by a personal statement to that effect. The strongest of those, kiddushin, is one sided and creates the problem of
aguna (the chained woman who cannot remarry) when a husband refuses grant a get. A same-sex relationship needed to be mutual, for neither party is a dominant party. And we rejected the neder form which required the intervention of a Bet Din. Our models were both based on partnership, with a Covenant of Loving Partners document, parallel to the ketubah, and a document of dissolution, should
that become necessary, to be filed in a national RA data base by either or both parties.

We hope that our colleagues will feel comfortable using these models, as is, or as a basis from which to embellishment. It took several years to get to this point.

We are acutely aware that the civil question of marriage equality is very much roiled at this moment. We sought, insofar as anything we say has weight, to insulate these ceremonies from any implication with regard to state law. We wrote:

          Some American states and foreign countries have recognized same-sex civil unions or domestic partnerships but reserved the language of marriage for heterosexual couples. Others have moved to full equalization of legal status and terminology for gay couples, but many states have refused all such recognition. 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. Performance of the Jewish wedding ceremony is not to be considered a civil marriage in those jurisdictions which prohibit same-sex marriage.
          
          It will be up to individual colleagues to determine whether they can and wish to participate in such a ceremony.

[You can find this responsum at www.rabbinicalassembly.org > Jewish Law > CJLS > EvenHaEzer > Interpersonal Relations (teshuvot listed by date, this resides as an appendix to the responsum from 2006)]

[An aside: Chevrei Tzedek has been approached by a coalition favoring marriage equality in the state of Maryland which was passed by the legislature pending a popular referendum in November. To date, no state that has held a popular vote on granting this particular minority right has voted to approve. There is some hope that Maryland may be the leader. They would like the congregation, as a religious
assembly, to take a stand in favor of marriage equality and to use the congregation as a base of mobilization. (Obviously, this is a broader effort throughout the state to enlist faith communities in this effort). I will be referring the issue to the new mazkirut – but take this opportunity to solicit your opinion on whether we should be involved in the effort.]

Electricity

In 1950 the Conservative Movement engaged in the great debate about driving and electricity use on Shabbat. We are all familiar with the result – some drive and some do not, some use electricity and some do not. Rabbi Arthur H. Neulander wrote:

          Those who disapprove the use of electricity on Shabbat base themselves of the Biblical prohibition of (Exodus 35:3) “Do not burn flames in all your settlements on the Sabbath day.”

          They subsume electricity under the category of fire. We find this identification between electricity and fire to be wrong both on Halakhic and scientific grounds.

He argued that fire was characterized by combustion and flame, which was not true of electricity. Rabbis Morris Adler, Jacob Agus (Debbie’s father of blessed memory) and Theodore Friedman pronounced a firm conclusion:

          In the spirit of a living and developing Halachah responsive to the changing needs of our people, we declare it to be permitted to use electric lights on the Sabbath for the purpose of enhancing the enjoyment of the Sabbath, or reducing personal discomfort or of helping in the performance of a mitzvah.

Rabbi Neulander went on to elaborate:

          It is self event that this permission applies only to such uses as do not involve work prohibited on the Sabbath. Thus we may permit turning on electric lights, telephoning, refrigeration, using a radio and television (! In 1950 !). But we cannot countenance the use of electricity for work prohibited on the Sabbath, such as cooking and baking, shaving, using the washing machine or an electric iron. The prohibition is here derived not from the use of electricity but from the nature of the work itself.

But times and the uses of electricity and electronics have developed enormously these past sixty plus years. At this meeting Rabbi Daniel Nevins presented a magnificent responsum elucidating the nature of electricity and extending Rabbi Neulander’s understanding to the many new machines and situations that we face, from compact fluorescent bulbs and LEDs versus the incandescent bulbs of
Rabbi Neulander’s day, to computers, e-readers, iphones, magnetic strips and motion detectors. A long and intricate paper, he appended a very useful chart of the status of varying appliances to the end of his paper which is worth considering.

You can find his paper at www.rabbinicalassembly.org > Jewish Law > CJLS > Orah Hayim > Shabbat.

I was, as you might have guessed, a hold out. I remain one of those opposed to the use of electricity on Shabbat based on the simple argument mentioned by Rabbi Neulander. I ask, what did the Torah expect it was prohibiting when it commanded, ““Do not burn flames in all your settlements on the Sabbath day.” Why did it think you would make a flame? It seems self evident to me that a flame was intended
to accomplish three things – to give heat, to give light and to cook. In our day electricity accomplishes each of those purposes. While we are not like the Karaites, sitting in the cold and dark, for each of these functions Judaism has found ways to do before Shabbat what would provide sufficient comfort on Shabbat. In Rabbi Nevins’ own analysis, “If the physical mechanism is different from that of the
primary prohibition, but the purpose and result are identical, then an activity is considered forbidden as a derivative of the primary category.” To me that seemed to make my case. But he insisted that the Torah’s prohibition rested in flame and combustion, not the subsidiary results, and that, therefore, electricity did not, in fact, cause the prohibited results.

But there was much in the paper about the nature of intention and accidental or unintended results that do not rise to the level of Shabbat prohibition, or that do but may be waived on account of various forms of necessity, with which I agree. And without a doubt it was a prodigious feat of learning and explication. Bearing in mind my caveat (for those who are of like mind), I highly recommend this heavy
chewing.