Orthodox Jewish feminism long has manifested concern for the plight of agunot — women trapped in a marriage by the Jewish law that provides that only the husband, can end the union. The wife cannot.
The way Jewish law mandates that marriages begin is no less problematic, according to presenters at one JOFA session. The session presented alternatives to kiddushin, the central marriage ritual, where the groom gives a bride a ring and says, “Behold, you are consecrated to me.”
“This is one of the issues that is most pressing in the Jewish community, because kiddushin happens across denominations,” said Rabba Yaffa Epstein, who was ordained by Yeshivat Maharat. Rabba is the female form of the word rabbi, adopted by some of the women ordained by Yeshivat Maharat. “Every denomination uses kiddushin as the main way in which marriage is enacted in their community.”
So what’s the problem?
Rabba Epstein pointed to the biblical verses in Deuteronomy that underpin Jewish marriage. They begin: “When a man takes a woman.”
“Who does the taking according to our tradition?” she asked. “The man. Who ends the relationship? The man. The woman in the Torah is passive. It is not a partnership.”
The later description in the Mishna is not much better, she said. It begins: “A woman is acquired….”
“The fact is we enact marriage in way that is unequal from its very beginning,” she said.
So what is to be done?
Yedidah Koren, a faculty member at the Drisha Institute and Machon Hadar, presented some new alternatives.
Prenuptial agreements that demand a monetary fine if a man refuses to give his wife a get have been endorsed by mainstream Orthodox rabbis, including the Rabbinical Council of America, to prevent agunot. These, Ms. Koren said, “are a first step in protecting the woman and making it possible for her somehow to get out of the marriage.”
A more revolutionary shift would be to modify the kiddushin process — something she did at her wedding. One such possibility would be to make the kiddushin reciprocal by having the wife also acquire the husband. Since what is actually being acquired, she said, is not the person, but rather the person’s sexual exclusivity — a wife after all can’t be resold in Jewish law — there would be no reason a woman couldn’t similarly acquire her husband’s sexuality.
Another possibility, which had been proposed by Israeli Chief Rabbi Shlomo Goren a generation ago, would be to make kiddushin conditional on the couple never living apart for 18 consecutive months. If they did separate, under such a contract, they would retroactively never have been married.
“On the one hand, this is a broader protection than the prenuptial agreement. It protects from something like the husband being incapacitated in a car accident and unable to give a divorce, or if he disappears — all the things the regular prenuptial agreement doesn’t deal with.
“On the other hand, making kiddushin conditional enables the woman to have agency in dissolving the marriage. A woman can request a divorce, and if it isn’t not given to her, she can move out.
“But maybe it’s better to think what a halachic marriage can be if it’s not kiddushin,” she said. “It enables creativity and starting to think what a Jewish marriage can be.”
Perhaps, she suggested, a mechanism of oaths and vows could be used to create a halachically binding relationship, in which the partners pledge sexual fidelity to each other. “I would argue for a completely new marriage ceremony, because the reality of our world does not match what the halacha of kiddushin actually is,” Rabba Epstein said.
What about “Kiddushin,” the talmudic tractate on the topic?
“So many tractates we have are already theoretical,” Ms. Koren said, pointing to talmudic discussions of Temple sacrifice.
“Leaving traditional Jewish marriage law behind opens up many, many questions,” she admitted. “While we can find solutions, we don’t yet have a tractate of law that helps us deal with all the many complications.”