by Rabbi Michael Dolgin
July, 2005

The formal discussion of same-sex marriage began at Temple Sinai this past May when I was approached by members of Temple at the time of the Ontario Court ruling. During the intervening months, I have shared numerous discussions with our Pulpit and Services committee and our board of trustees, taught a class on the evolution of marriage, and shared numerous informal discussions with members of Temple Sinai and the community at large. Through interaction and study, I have considered many different perspectives. All of these viewpoints have played a role in determining my own position. I have decided to officiate at same-sex marriages and to call them by that name as well. The statement that follows is more than an opinion but less than a formal rabbinic responsum, which would quote sources and resolutions in detail. My goal is to share the basis for my decision regarding officiation in hopes of creating understanding and respectful discussion.

The issue of officiation at same-sex ceremonies is as challenging an issue as any that has confronted us in recent years. We must first seek an approach to the issue based in Jewish tradition, then consider what to call these ceremonies, and finally, address the role of the rabbi.

The Torah’s statement about male homosexuality is unequivocal. However, if we were to consider this to be the end of the story, we would be doing an injustice to the Torah itself. Our Torah is not merely a collection of individual statements to be taken at face value. The Torah and the entire Tanakh (Hebrew Bible) present a worldview that can only by properly understood by considering the text as a whole.

Much of the discussion on this issue has focussed on the Hebrew word to’eivah, usually translated as “abhorrence” or “abomination”. In Leviticus, chapter 18, whose primary purpose is to make religious and ethical judgements about sexual activity, male homosexuality is described as to’eivah. This word is also used in the single text in Torah that discusses marriage as an institution, Deuteronomy 24:1-4. The comparison is instructive:

A man takes a wife and possesses her. She fails to please him because he finds something obnoxious about her, and he writes her a bill of divorcement, hands it to her, and sends her away from his house; she leaves his household and becomes the wife of another man; then this latter man rejects her, writes her a bill of divorcement, hands it to her, and sends her away from his house; or the man who married her last dies. Then the first husband who divorced her shall not take her to wife again, since she has been defiled—for that would be abhorrent (to’eivah) to the Lord. You must not bring sin upon the land which the Lord your God is giving you as a heritage. [Jewish Publication Society translation]

The Torah clearly has a strong objection to the same couple marrying twice if the woman has married again in the interim. Even after looking at rabbinic commentaries that seek to explain this prohibition, no clear intent based in Torah text emerges. What we know is that the Torah includes this kind of remarriage and male homosexuality in the same category. They have the same ethical baggage. In the worldview of the Torah, no such negativity is attached to polygamy, having concubines, or marrying a female Jewish slave who serves in one’s own household. Clearly, Jewish social and sexual ethics have evolved since the time of the Torah. Our tradition requires that sexual activity be understood as a moral act. Some sexual acts are to be permitted and other prohibited. The Torah includes polygamy in the former and homosexuality in the latter category. As a modern, liberal Jew, I do not regard the rabbinic ruling of Rabbeinu Gershom in early medieval Europe prohibiting polygamy in the Ashkenazi world to be an adequate attempt to maintain the eternal power and relevance of Torah in an ever-changing world. We must look for a larger principle that will guide us in forming a modern Jewish sexual ethic.

The Torah is first and foremost a brit, a covenant between the people of Israel and God. In the book of Hosea in particular, marriage is considered to be a unique, symbolic expression of this covenant. We are called upon to be exclusively faithful to God just as the Tanakh expects a wife to be exclusively faithful to her husband. This commitment requires loyalty, truth, justice, and love. Religious activity that is outside the covenant is considered wrong and evil. Sexual activity that is outside of the covenantal framework is considered to be abhorrent (to’eivah) or immoral (z’nut). The Torah is suspicious of individual motivations or actions unless they can be understood as part of a b’rit. Homosexual behaviour was judged as abhorrent. The wording chosen in Leviticus 18 is instructive. “Do not lie with a male as one lies with a woman.” Participating in sexual activity that does not result in covenantal responsibility is unethical. The Torah text seems to regard homosexuality as a temporary licentious choice made by heterosexual individuals. While I claim no scientific expertise or special knowledge in understanding sexual behaviour, I am convinced that homosexuality, male and female, is a stable expression of personal identity. The same combination of nature and nurture that leads most of us to develop a heterosexual identity also leads some of us to develop a homosexual identity. Just as we no longer share the Torah’s view of slavery or polygamy or remarriage to the same person, similarly we need no longer share the Torah’s understanding of homosexuality. As Jews, we are commanded to live as sexual beings in an ethical, committed, covenantal context. Is such a life available to Jews who are homosexual? A continuing response must consider the rabbinic traditions around marriage.

The institution of marriage evolves significantly in the hand of the rabbis. We quickly come to recognise the basic elements of Jewish weddings even in very early rabbinic writing. The rabbis discuss marriage contracts, the exchange of an object of value, and the consummation of the marriage through a sexual act. Classical rabbinic writing certainly could not have conceived of homosexual Jewish marriage. Similarly, such texts cannot imagine an egalitarian marriage. Consider the following discussion from the Mishnah (the earliest rabbinic text) about the circumstances under which a woman could be divorced without being paid her marriage settlement:

These are they that are divorced without their marriage settlement: she who transgresses the Law of Moses and Jewish custom. What is meant here by the Law of Moses [Dat Moshe]? If she gives her husband food that had not been tithed, or if she had sexual intercourse with him while she was menstruating, or if she does not take challah from the dough, or if she makes a vow and does not fulfil it. And what is here meant by Jewish custom? If she goes out with her hair loose, or if she spins in the street, or if she speaks with any man. (Ketubot 7:6)

This teaching, which is echoed in the phrase “K’dat Moshe v’Yisrael” in the wedding ceremony, represents an understanding of gender roles that remains consistent in traditionalist or Orthodox weddings today. The historical roles of the male and the female, of the husband and the wife, are well defined. The man contracts the marriage, the woman accepts her new status. The man is charged with representing family interests in the public domain. The woman’s domain is in the home. The social and religious reality assumed by this traditionalist approach is at odds with our modern understanding of human beings and of Jewish family life. We believe that Judaism is stronger when both women and men have the opportunity and obligation to contribute fully. We believe that the roles played by a husband and wife in their marriage and family life should be the product of individual, responsible choice. When we speak of husband and wife, we no longer intend to communicate the historical, social roles that the texts assume. Rather, we continue to view marriage as a mirror of the eternal, exclusive covenant between God and the people of Israel. A Jewish wedding is a blessing to the Jewish community because it stands as a powerful affirmation of the basic Jewish values of covenant and commitment. Extending the institution of Jewish marriage to include same sex couples is consistent with liberal Jewish tradition and practice. We believe that one’s gender or sexual identity should not limit one’s Jewish responsibilities and opportunities. If gender is not the defining characteristic of a Jew, then it should not be the basis upon which an individual’s commitments or covenants are judged. Jewish couples who elect to marry are choosing a life of responsibility and obligation and are strengthening our community. We should welcome same-sex couples who, risking public scrutiny and mistreatment, come forward to affirm traditional Jewish values and institutions at a time when apathy and assimilation are among the great enemies of our people.

During the months that our community has addressed this issue, many have suggested that same-sex ceremonies and covenants should be accepted but called something other than weddings and marriages. Naming is always an emotional issue. Neither of these words, being in English, has Jewish significance. Much rabbinic argument has focussed on whether the traditional term kiddushin should apply to same sex relationships. The root of this word means “holy” or “set apart.” This root is used very broadly in Torah and tradition. It has no link to gender or to the issue of procreation that is raised so often in discussions of this issue. Based on the textual approach outlined above, if kiddushin is flexible enough to apply to egalitarian marriage, it should likewise be flexible enough to apply to homosexual marriage. From an experiential perspective, I see no reason to suggest that the sense of holiness experienced or the level of their exclusive commitment to one another should be different in same-sex and opposite sex couples. Much of the difficulty in applying terminology stems from our lack of clarity regarding the scope and meaning of the names we use. This challenge raises and additional question. Does a rabbi consecrate a marriage?

Abraham Joshua Heschel noted that historically, there was no Hebrew word for ceremony. Beginning from that perspective, a Jewish wedding is not a ceremony. It is the moment when Jews observe the mitzvah of marrying. The commandment to marry is number 552 of the 613 commandments as counted in the Torah. God sanctifies marriages. The rabbi’s role is m’sadeir kiddushin, the one who guides the participants in performing the mitzvah of making a mutual commitment, intended to be exclusive and life-long. The primary role of a rabbi is to encourage Jews to live an active and committed Jewish life and to strengthen and support them as they make educated Jewish choices. This understanding colours my role at all marriages at which I officiate.

No statement on this issue can be complete. My decision to officiate at same-sex marriages is a product of much study and discussion, teaching, learning and living. I have tried in this brief position paper to share my reflections on this complex and controversial issue. I am happy to discuss this issue further. I can be contacted at Temple Sinai at 416.487.4161 or by e-mail at dolgin@templesinai.net.