“Two Men Under One Cloak”—The Sages Permit it: Homosexual Marriage in Judaism

ABSTRACT

This article examines halakhic (Jewish legal) passages that relate to homosexuality and marriage between two males. The article sets forth the respective positions of contemporary Jewish denominations in regard to homosexual marriage. Homosexual marriage is a case of first impression in Judaism and requires new decisions and new marriage contracts. The principal thesis of the article is that contemporary Judaism can accommodate philosophically—but also legally—a halakhic framework of thinking, same-sex marriage between men. Judaism does not have to opt for the perspectives of Reform and Reconstructionist Judaism, which have, to a major extent, freed themselves from the traditions and rituals of Jewish law. After examining marriage contracts in Rabbinic literature, specific examples are presented of how homosexual marriage between two males may be implemented.

KEYWORDS:

• Homosexuality
• Judaism
• Talmud
• marriage
• kiddushin

Notes

1. Rav Ulla (third and fourth centuries, Land of Israel, but often traveled to Babylonia).

2. The number 30 apparently was derived from the following Biblical passage: “… they weighed out my wages, thirty shekels of silver” (Zechariah 11:12). In the name of Rav Judah this lemma was utilized in an exegetical procedure to refer to the 30 righteous individuals that assured the survival of the nations of the world. See also Roth (1993): “Is it theoretically possible to interpret the praise for the Noahides in this passage to mean that they refuse to sanctify the union of males because they recognize them to nonloving and noncommitted? Yes. But it is not probable” (p. 31).

3. Mariner (1995) 87, cites the commentary of Malbim (died in 1879) that this passage says something “about the active partner, namely that the mode of intercourse (mechanically speaking) is not unnatural for the active partner and that he may derive pleasure from this mode …” This defines the homosexual act in terms of mutual gratification and not in terms of abuse. This definition of homosexuality would be applicable to a marriage of homosexuals.

4. This is a device whereby the cancellation of debts in the sabbatical year might be evaded by signing a declaration before a court (Mishnah, Shevi'it 10:3–4); Hillel's enactments were accepted even though they were in conflict with the halakhah of his time (Hillel the Elder, first century Before the Common Era—first century of the Common Era).

5. Ayelet S. Cohen (2003), a Conservative rabbi, spoke on these issues at “Tse U-lemad.” JTSA ordains Conservative (heterosexual) rabbis; Rabbi Cohen has faced the possibility of being expelled from the Rabbinical Assembly.

6. Partial text of the report of Ad Hoc Committee on Human Sexuality: “Jewish religious values are predicated upon the unity of God and the integrity of the world and its inhabitants as Divine creations. These values identify shleimut [“wholeness”] as a fundamental goal of human experience. Sexuality and sexual expression are integral and powerful elements in the potential wholeness of human beings. Our tradition commands us to sanctify the basic elements of the human being through values that express the Divine in every person and in every relationship. Each Jew should seek to conduct his/her sexual life in a manner that elicits the intrinsic holiness within the person and the relationship. Thus can shleimut be realized…” (from http:rj.org/ccar.hs.html). The report further considers the idea of creation in the image of God, the contribution of same-sex relationships to the stability of the Jewish family, modesty, covenantal relationship, joy, holiness, and other categories of Jewish law and ethics that were reserved for marriages between men and women. (CCAR, 1999).

7. We do not refer to the details of the struggle within American society and the issues of same-sex marriage as relating to civil rights issues; a short summary may be found in Newsom (2005).

8. This paragraph repeats the stipulations.

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