The Wedding... Part 2

Continuing from Part 1. This part is an overview of and reflections on the procedure by which Jewish marriage is enacted.

Classically, Jewish marriage has two parts: kiddushin (aka eirusin) and nisuin. In the old days, these steps could be temporally separated by as much as a year, but nowadays, with very few exceptions, they take place one right after the other. To this day, most Jewish weddings include both of these elements, at least superficially, even if they are not always conceptualized as separate processes.

Kiddushin/eirusin is often translated as "betrothal", but this is misleading: "Betrothal" implies mere intent to get married, whereas kiddushin is a sufficiently advanced stage of marriage that if kiddushin has taken place, a full divorce is required in order to terminate the relationship. (Adding to the confusion, le-hit'areis in Modern Hebrew means simply "to get engaged" the way we would use it in English, not the rabbinic concept of eirusin.) In light of this confusion, Rachel Adler translates kiddushin/eirusin as "espousal" (and, in a footnote, cites another author who calls it "inchoate marriage", though she rejects this as "rather a mouthful").

Nisuin is generally translated simply as "marriage". This is a good enough translation; the marriage is not complete until nisuin takes place.

Some Hebrew grammar

Active verbs:

• Mekadeish (m.) / mekadeshet (f.) = the one who performs kiddushin

Passive verbs:

• Mekudash (m.) / mekudeshet (f.) = the one to whom kiddushin is done
  

What do kiddushin and nisuin do?

Classically, kiddushin was unilateral and heteronormative. That is, only a man could be mekadeish, and only a woman could be mekudeshet. (On these formal grounds, albeit not on sociological grounds, same-sex kiddushin is actually less of a departure from classical kiddushin than is bilateral opposite-sex kiddushin (which we did, and which most liberal Jewish weddings include), since in same-sex kiddushin (in either combination), 1 of the 2 partners meets the classical gender requirements, whereas if a woman does kiddushin to a man, neither partner meets these requirements.)

The word kiddushin is from the root קדש, meaning "holy" or "sacred", or more generally, "dedicated" or "set apart". Kiddushin effects a change in personal status: the recipient of kiddushin goes from being single to being mekudash/mekudeshet to one individual, the performer of kiddushin. The recipient of kiddushin now has the status of an eishet ish (or ish ishah, or ish ish, or eishet ishah), and is forbidden by the Torah to have sex with anyone other than the mekadesh/et. If s/he does, then both s/he and his/her accomplice have violated the Torah prohibition of adultery. The recipient of kiddushin also becomes unable to be mekudash/mekudeshet to anyone else. (Not forbidden, but unable; if anyone attempts kiddushin on him/her, nothing happens.)

However, kiddushin does not inherently effect any change in the personal status of the mekadesh/et. In the Torah (and on paper in the Mishnah and Talmud, whether or not this was practiced in rabbinic times), it's perfectly fine for a man to have multiple wives (or for a married man to have affairs with unmarried women). This wasn't prohibited until the decree of Rabbeinu Gershom around 1000 CE, which is only a rabbinic decree (and only pertains to Ashkenazi Jews), not a Torah prohibition. It's still prohibited, of course, and the predominant view of marriage today in both Jewish and western civilization is that both partners are in an exclusive relationship, but this prohibition is not activated by unilateral kiddushin alone, and is not as severe as the prohibition that applies to the recipient of kiddushin.

The mekudash/mekudeshet is not only biblically prohibited from having sex with anyone other than the mekadesh/et, but is rabbinically prohibited from having sex even with the mekadesh/et (i.e. with his/her new spouse) until nisuin takes place. This is a prohibition that is activated at the time of kiddushin; there is no direct prohibition on sex between two completely unmarried individuals (though there are various fences around it). I speculate that the original reason was to deter deadbeat husbands. Nisuin entails various obligations, including financial support, and this rabbinic prohibition would have prevented men from obtaining an exclusive relationship with a woman (and taking her off the market, as it were) without supporting her financially.

An echo of this prohibition is preserved in the text of birkat eirusin, the blessing said before kiddushin, from Ketubot 7b: ואסר לנו את הארוסות והתיר לנו את הנשואות (and then Rabbeinu Tam helpfully added the word לנו lest there be any misunderstanding) / "who has forbidden to us those who have had eirusin, and permitted to us those who are married [to us]". Some people take issue with this wording, because they understand it as describing a general prohibition on sex outside of marriage. I don't think that matches what the words actually say: it seems to me that a plain-sense reading of the blessing is that it describes a prohibition (as discussed above) that lasts from the time of kiddushin to the time of nisuin. And it seems to me that in the present time, this prohibition should be unobjectionable regardless of one's general views on sex between two unmarried individuals, but is also irrelevant: now that kiddushin and nisuin have been consolidated into the same wedding ceremony, the time period in question lasts about 15 minutes, and no one is going to have sex anyway when they're under the chuppah and their family and friends are watching.

So that's kiddushin: a change in personal status for the recipient, along with the acquisition of negative prohibitions. Nisuin is different: it is the creation of a relationship between two individuals, along with the acquisition of positive obligations for both partners. After nisuin takes place, the two partners are fully married. They are now joined in a family relationship which entails mutual responsibilities, some of which may be spelled out in the ketubah (to be discussed in Part 4), and some of which take effect automatically whether or not they are spelled out.

As we understood it, both elements are necessary: both kiddushin and nisuin, both the individual status change and the formal creation of a relationship, both the negative and the positive obligations.

Understanding nisuin in an egalitarian context requires no major conceptual shift. Yes, the specific marital obligations described in the classical sources are very gendered; e.g., the husband is the breadwinner responsible for financially supporting the family, and the wife is responsible for household tasks. But it's easy enough (conceptually) to have both partners (of whatever gender) take on both areas of responsibility.

Kiddushin is somewhat more complicated, and is often disparaged for various reasons (some justifiable, some not), which we'll discuss throughout the rest of the series. It certainly has problematic aspects. But the bottom-line essence of kiddushin as marital exclusivity is uncontroversial to us and to most people. In fact, we thought it was so important that it should be multiplied by two, so that both partners are subject to kiddushin, and both partners have a requirement of monogamy at the level of a Torah commandment. Thus, even though kiddushin is a unilateral act, having two acts of kiddushin means that there is not a difference between the status of the two partners the way there is in classical kiddushin. (In the next post, I'll discuss how we made these acts of kiddushin interdependent and simultaneous.)

The formalist objections to bilateral kiddushin are 1) as discussed above, only a man can perform kiddushin and only a woman can accept kiddushin, 2) a concern that the two acts of kiddushin would cancel each other out. Within a broader context in which gender differences are insignificant in most areas of halachah, a non-gendered approach to kiddushin is consistent with the general halachic approach, and therefore #1 is not a concern in that context. (The question of why such a general approach is valid is beyond the scope of this series.) And #2 is a potential issue in primarily only one of the three methods of kiddushin (discussed below), and even under that method, there are ways of avoiding this problem (as we'll discuss).

How are kiddushin and nisuin effected?

Masechet Kiddushin begins with two very difficult words: האשה נקנית, "the woman is acquired". And looking at this mishnah in context makes it worse, not better. After explaining the three ways in which "the woman is acquired" and the two ways in which she "acquires herself", the Mishnah goes on to list the means of acquiring Hebrew slaves (or more accurately, indentured servants), Canaanite slaves, large animals, small animals, land, and finally movable property. Enough said.

But then the second chapter begins differently: האיש מקדש, "the man sanctifies / consecrates / sets apart", and that is the verb used throughout the rest of the masechet. According to those who are more scholarly than I, there is evidence that the first chapter of Mishnah Kiddushin is particularly ancient compared to the other chapters. Thus we see a conceptual shift regarding the nature of kiddushin even within the tannaitic period, shifting from an acquisition frame to something else.

Therefore, the way to be most faithful to the rabbinic concept of kiddushin is not to defend the idea of acquisition; the rabbis themselves moved away from this. Nor is it to maintain the superficial forms of kiddushin while disregarding the underlying meaning; kiddushin is meant to be a legal act and not merely a sentimental one. Rather, our place is to continue the movement that the rabbis began, moving our understanding of kiddushin even further away from unilateral acquisition.

(Similarly, many modern readers are distressed that the Torah's laws include slavery, but we can also appreciate that the Torah's laws on slavery were more progressive than those in preceding and surrounding cultures. Still, there is no question that the best way for us to live out the Torah's values in our time is to have no slavery at all, rather than to preserve the Torah's progressive-for-its-time system of slavery intact.)

Furthermore, many have pointed out that even the most primitive version of kiddushin was not exactly acquisition. When you acquire a piece of property, it belongs to you, and you are free to sell it, trade it, share it, lend it out, or rent it out. (The same was true for acquiring a slave.) A man who was mekadeish a wife, even in the earliest Jewish law, could not do any of those things with her.

Mishnah Kiddushin 1:1 lists three different methods of effecting kiddushin: kesef (money), sh'tar (document), and biah (sexual intercourse).

Kesef is by far the most common procedure in our time. In this method, the mekadesh/et gives the mekudash/mekudeshet either money or an object of value, which, according to Beit Hillel's position, must be worth at least one perutah (a coin of minimal value). This object is most often a ring, but other alternatives have been used (and at this writing, IKEA tupperware sets are selling for $4.99, so they would also be valid). According to Tosefta Kiddushin 1:1, the mekadesh/et must also say one of several formulations to indicate that the transfer of this object is intended to effect kiddushin: הרי את מקודשת לי (You are hereby consecrated to me), הרי את מאורסת לי (You are hereby espoused to me), הרי את לי לאינתו (You are hereby my wife), or anything that conveys this idea.

Kiddushin b'chesef has the unmistakable appearance of a purchase (even if, as discussed above, that's not what it really does). And this is part of why we didn't use it. But I also think there are other ways of looking at it that can redeem it. Some have suggested that the partners' giving each other objects of value can be viewed not as acquiring each other, but as investing in each other, a much more appropriate metaphor for an egalitarian marriage ("a marriage between subjects", to use Rachel Adler's phrase).

A more generalized objection to kiddushin b'chesef is that marriage shouldn't look like a financial transaction, because marriage should be about a committed personal relationship. But nowadays, you can have a long-term committed personal relationship without marriage, and many couples do, either leading to marriage or not. And for such couples, one of the largest practical differences between being married and being not married is indeed financial: as a married couple, they function much more as a combined financial entity. So I don't think this is inappropriate to invoke in the marriage procedure, but I also think that the more relevant financial transaction is a merger, not an acquisition. Thus, Rachel Adler's berit ahuvim procedure is based around creating shutafut: pooling resources to enact a business partnership. Early in our process, we considered the idea of reconceptualizing this as an egalitarian form of kiddushin b'chesef, but that wasn't the direction we ended up going (we lifted our rings in a bag as a symbolic gesture, but didn't incorporate this into the actual marriage procedure), so figuring out how this would work is left as an exercise to the reader. (To whichever reader attempts this: I'm sure no one will be more horrified than Prof. Adler herself, who goes to great lengths to emphasize multiple times that berit ahuvim is not kiddushin. However, I'll discuss in Part 5 why I think drawing this red line doesn't actually accomplish what it is intended to, and therefore why it's not a problem to blur the line.)

An objection that is sometimes raised against bilateral kiddushin b'chesef is that the two transfers of value cancel each other out: if I give you $10 and you give me $10, then no net amount has changed hands. (It should be noted that this objection can only be applied to kesef and not to the other two methods of kiddushin: two documents don't cancel each other out, and... so forth.) Some have come up with solutions that make the amounts intentionally unequal, to avoid this problem. I think these solutions are too clever by half (and, by definition, not egalitarian). A simpler solution is just to make clear that the two acts of kiddushin are separate acts, and not part of a single transaction. So I give you $10 and you are mekudeshet, and in a separate act, you give me $10 and I am mekudash. The $10 (or ring or whatever) that I gave you doesn't need to remain in your possession for you to remain mekudeshet; the Mishnah (Kiddushin 2:1) says that the object used for kiddushin may even be eaten afterwards (the example there is dates), and the kiddushin is still valid as long as it was worth at least a perutah.

Another objection sometimes raised against egalitarian kiddushin (by whichever method) is that, in addition to the list of formulations that effect kiddushin, there is also a list of formulations that explicitly do not effect kiddushin. This list (as it also appears in Tosefta Kiddushin 1:1) includes הריני מאורסת לך (I am hereby espoused [f.] to you), הריני מקודשת לך (I am hereby consecrated [f.] to you), and הריני לך לאנתו (I am hereby your wife). Some interpret this list of exclusions to mean that a woman (because of her gender) cannot be the active partner in an act of kiddushin. But that's not what it's saying at all: it's clarifying the structure of kiddushin and saying that the mekadesh/et, not the mekudash/mekudeshet, is the one who has to give the other partner the kesef or the sh'tar, and the one who makes the statement of intent. This structure is fully compatible with bilateral gender-neutral kiddushin.

Sh'tar is a document that the mekadesh/et writes and gives to the mekudash/mekudeshet that contains any of the phrases above that effect kiddushin. This is what we did at our wedding, and this will be the subject of Part 3. This document is not the same thing as a ketubah, which will be discussed in Part 4.

Biah is often misunderstood. There is an urban legend out there (perhaps from the same source as the idea of a "double mitzvah") that "there's no such thing as premarital sex in Judaism, because as soon as you have sex, you're automatically married". Not so! Quoting Tosefta Kiddushin 1:1 once more, כל ביאה שהיא לשם קדושין- מקודשת, שאינה לשם קדושין - אינה מקודשת: intercourse effects kiddushin if and only if it is done for the purpose of effecting kiddushin.

The Rambam (Hilchot Ishut 3:5) goes even further, requiring the same evidence of intent of kiddushin that is required for the other methods of kiddushin: the kiddushin must be accompanied by a statement of intent from the usual list (הרי את מקודשת לי, etc.) and must be witnessed by two witnesses (though they only need to see the couple go somewhere alone together; they don't need to witness the actual act!). With these requirements, it's difficult to believe that kiddushin b'viah ever took place. And maybe (like the ben soreir umoreh) that's the point.

So why was it ever on the books in the first place? (Other than "study, and receive a reward", of course.) Given the aforementioned antiquity of the first chapter of Mishnah Kiddushin, I wonder if it dates back to a time when the requirements for kiddushin were less defined. Perhaps the older situation was somewhere between the youth group urban legend and the Rambam, so that sex didn't automatically effect kiddushin, but there was also room to invoke this type of kiddushin retroactively, e.g. in the case of an unexpected pregnancy, and say that kiddushin had taken place.

Perhaps because it seems so absurd, kiddushin b'viah is sometimes the subject of various facetious proposals. For example, kesef and sh'tar are both listed as methods of acquiring various types of property in Mishnah Kiddushin chapter 1, whereas biah is not, so it has been suggested that biah should be favored, as the only method of kiddushin that bears no similarity to acquisition. Biah might also be the only way to effect bilateral kiddushin with a single act (rather than two separate transfers of kesef, or two sh'tarot). These suggestions aren't serious, of course!!! It's just a way to amuse ourselves the way the rabbis did. But as a practical matter, while kesef has been alive and well as a method of kiddushin for millennia, and sh'tar is going back into style (see Part 3), biah is long gone and is not missed.

So that's kiddushin, which can be effected in one of three specific ways. Then there's nisuin, which is much less sharply defined. The elements of nisuin are well-known from any Jewish wedding: chuppah, ketubah, sheva berachot, and yichud. Unlike kiddushin, which takes place at a clearly defined moment, there's no moment in the wedding ceremony that can be pinpointed as the moment when nisuin occurs. It's not clear which of these elements actually effects nisuin. Unlike kiddushin, nisuin is much more of a "common-law marriage": you know it when you see it. Some have suggested that this is intentional, to convey the idea that marriage, and a relationship, is an ongoing process.

***

In Part 3, we'll look at kiddushin bishtar in greater depth, both in general and in the specifics of what we did.