CCAR RESPONSA

A minority of us, whose names are indicated at the conclusion of this teshuvah, disagree, holding that a Reform rabbi may officiate at a wedding or "commitment" ceremony for two homosexuals, although for important historical and theological reasons, that ceremony should perhaps not be called kiddushin.

This is, for us, an uncommonly long responsum. It is long because our discussion of this issue brought forth among us a number of profound disagreements, not only over the specific question of homosexual marriage but also over the nature of Reform Jewish religious discourse, at least as it is practiced among those of us committed to the responsa process and to the literature of liberal halakhah. In trying to talk to each other about this question, we discovered that we as a Committee had ceased to share the most elemental kinds of assumptions necessary for a common religious conversation. We were speaking different languages, languages that used similar words and terminology but which defined them in starkly and irreconcilably different ways. Hence, we discovered that we were no longer talking to or even arguing with each other; rather, we were conducting a series of parallel monologues in place of the dialogue of text and tradition that has served us so well in the past. We know that we are not alone in this experience, for we have noticed the same difficulties of communication in virtually all other discussions that have taken place within the Conference on this explosive subject.

We have decided therefore to depart from our normal practice, which is to present the decision of the Committee's majority and to register the dissents, should they exist, in a note or in a separate opinion. We have thought it useful to reconstruct the "discussion" which took place within our Committee, to explain the positions of both points of view as carefully as we can. The point is not to reach some kind of synthesis between the two, for as we have indicated, such a meeting of the minds did not occur and shows no prospect of taking place in the near future. Nor is it to imply a sense of neutrality on our part as to the proper answer to this she'elah, for both our majority and our minority are quite confirmed in their particular opinion. We hope instead that through the very process of explanation we can describe with some adequacy the width and the depth of the chasm that divides us. We hope, too, that the thorough enunciation of our reasoning might help us to begin the recovery of that common language of discussion and argument which has deserted us and whose existence is the necessary precondition to our existence as a religious community. And finally, we hope that alongside the deep disagreements which no majority opinion can put to rest, our words might serve to remind us and our colleagues of those values and goals upon which we do agree and to whose attainment we stand committed.

Introduction. This question, currently one of the most controversial issues on the agenda of the Reform rabbinate, has been an extraordinarily difficult one for our Committee. This is not because we disagree as to its answer. Disagreement is commonplace among us, as it should be. Like the rabbis of old, we sometimes find machloket to be problematic,¹ but we accept its inevitability and indeed welcome it as a necessary and indispensable test of our ideas and presumptions. We do not shrink from argument. The difficulty in this case arises from the fact that argument itself, understood as the joint deliberative attempt to reach common ground through persuasive speech, has broken down and proven impossible.

In order for an argument to occur at even the most elementary level, its opposing sides must be able to express themselves in a language which both can speak fluently. That language, the vernacular of the interpretive community, consists of a set of shared intuitions and premises. These serve as the common starting points for reflection and debate; they are the values by which all participants in the conversation analyze and measure their assertions; they represent the standards of justification to which both sides appeal in their attempt to persuade the other. Although the existence of a common language of argument does not guarantee unanimity or even a predominant consensus among the members of the community, it at least offers the prospect that persuasion can take place. It is that prospect, and only that prospect, which makes argument meaningful and worthwhile. In the absence of a language common to all members of the community, a language through which each side of a debate might articulate its position in the reasonable hope of convincing the other of the rightness of its point of view, argument no longer makes sense, true conversation can no longer take place, and the continued existence of the community as a community, a collective whose members are united by a shared language with which to imagine and describe their deepest commitments, in imperiled.

On this she'elah, we have discovered that we no longer share a language of argument. The presumptions and definitions, the techniques and approaches that customarily serve as starting points for our discussions have failed us in this case. We have split into two or more camps, each framing the issue in a language of argument which the other side finds foreign, indecipherable, and obtuse.

Let us illustrate. Under normal circumstances, we converse about the questions submitted to us in the language of "tradition," a language composed of the resources of the Jewish past, its sacred texts and the history of their interpretation. We comprehend this tradition, to be sure, as Reform rabbis who possess a liberal and liberating textual tradition of our own. And with the insight derived from that particular perspective, we work with the texts of the past, constructing answers which we think speak to our time and our community. On this question, however, "tradition" offers but the most uncertain guidance. We have been unable to reach a consensus as to whether Jewish tradition is at all relevant to our discussion, whether it can serve as a useful framework for our response. Some of us accord significant persuasive weight to the voice of tradition on the issue of sexual orientation, as we do on every issue. Others contend that the tradition has little of value to say to us, because its teachings about homosexuality reflect the long-since-abandoned assumptions and prejudices of ages past. One participant in our debate has suggested that the very concept of "tradition" be understood in a radically new way, that we identify it not with the literary corpus of sacred text but exclusively with those principles which, discoverable in those texts, lead us in the direction of justice and progress. According to this reading, we could reject the discrete holdings and teachings of the Jewish past and replace them with an entirely contradictory decision, all in the name of "tradition" itself. The language of "tradition," in other words, no longer unites us in a common conversation, for the simple reason that as a Committee we cannot agree as to what that language is, says, or means with respect to the question before us.

Our discussions are generally framed in other languages as well. Like Reform Jews generally, we ascribe great weight to considerations of justice and ethics, to the findings of science and human knowledge, and to the lessons we learn from history and contemporary culture. Each of these more "modern" discourses reflects our religious openness to the world and all that is in it, our eagerness to learn from the best that the human mind and experience can offer. While we seek, as a matter of general practice, to affirm the stance of tradition wherever possible, we are ready to abandon or to modify that stance when we find that it conflicts intolerably with our sense of the good and the just, when it would throttle the spirit of liberality to which we are committed. Yet these languages, too, like that of tradition, lead us in radically divergent directions. Put oversimply, while the voice of modernity (or, perhaps, of post-modernity) convinces some of us that homosexual couples deserve the right to Jewish marriage, most of us, with all respect, disagree; though we, too, are Jews of the contemporary world, committed to doing justice and to heeding the call of knowledge, it is far from obvious to us that the tide of the times sweeps us to say "yes." To say that we are "liberal" and "enlightened," that is, does not automatically answer this question for us, any more that does the simple assertion of our attachment to Jewish faith and tradition.

Again, the problem is not the fact that we disagree over the answer but rather that we lack any consensus as to how to go about reaching it. Each side appeals for support to particular conceptions of "tradition," "justice," "progress" and "Reform" which the other side does not accept. The result is that there is little ground for common persuasive discourse. Argument, in other words, has come to an end.

Given this state of affairs, although the majority of the members of this Committee respond in the negative to our she'elah, it is extraordinarily difficult for us to issue a decision, in the normal sense of that term, as we usually do. We shall indeed, as we usually do, tally the votes among us and express the majority viewpoint. With that, however, we are painfully aware that as a Committee we lack a shared conceptual approach to this issue and that in the absence of a common discourse it matters little that one side or the other holds a numerical advantage among us. No majority decision could ever dispose of a question when the minority rejects the very foundations upon which that decision rests. No positive contribution can be made toward the resolution of this debate when the reasons and arguments advanced by either side are greeted with indifference or acrimony by the other. When no conversation can occur, no real learning is possible. When no real learning is possible, teaching becomes irrelevant. And in a place where teaching is irrelevant, rabbis have no ground upon which to stand and to speak.

We want, rather, to turn our attention away from ending the debate and toward its satisfactory resumption. The task of this Committee, we believe, is not only to issue decisions but also, and perhaps more so, to argue, to justify those decisions in a language which helps unite us with other Reform Jews in the pursuit of religious understanding. As rabbis, we reveal our deepest Jewish and moral commitments precisely through the process of argument, in the language with which we justify and explain ourselves and our decisions. On this issue, until now, language has failed us because it has divided us; argument has deadlocked, community has vanished. And it is to this situation we feel compelled to respond. It is our hope as a Committee that, in discussing this she'elah, we might begin to recover the rudiments of a common language of argument and justification. If we can identify some lines of thought, however vague and general, which help us as a community to articulate and to argue our positions on the question before us, then we will feel that we have accomplished our most significant objective.

The goal of this responsum is therefore to describe, as carefully as possible, the impasse we have reached; to outline with precision the points of disagreement among us; and to suggest those grounds upon which we agree, which offer the hope of a common direction which we might pursue in our ongoing conversation.

The Torah explicitly condemns the practice of male homosexual intercourse. Leviticus 18:23 instructs: "do not lie with a male as one lies with a woman (mishkevey ishah); it is an abhorrence (to`evah)." In Leviticus 20:13, we read: "if a man lies with a male as one lies with a woman (mishkevey ishah), the two of them have done an abhorrent thing (to`evah). They shall be put to death;² their bloodguilt is upon them." In both cases, the prohibition appears as part of a list of forbidden sexual acts (incest; adultery; relations with a menstruating woman; sex with animals) associated with the customs of the Canaanite peoples whose land is assigned by God to Israel.³ Indeed, the Canaanites have defiled the land by committing these abhorrent acts (to`evot; 18:26, 30) and the land, as it were, cooperates with God's plan by "spewing" out its offending inhabitants to make way for the Israelites (18:24ff; 20:22ff). The Torah admonishes Israel⁴ to keep far from these practices and instead to observe God's statutes, which are a source of life (18:5) and holiness (20:7-8, 26).⁵

Rabbinic literature adds relatively little to this legal material. The Talmud contains few mentions of overt homosexual acts and no reports of executions carried out as punishment.⁶ We cannot determine how prevalent homosexual behavior may have been in the society of the time. At any rate the rabbinic sources, which we utilize as the building-blocks of our own textual conversation, imply that the phenomenon was either not widespread or successfully hidden or suppressed. Thus, while Rabbi Yehudah forbids a lone unmarried male from pasturing a beast and two unmarried males from sleeping together under a common blanket, the chakhamin permit these practices, because "Jews are not suspected of homosexual relations and of buggery."⁷ On the other hand, "one who avoids even yichud (being alone together) with another man or a beast is deserving of praise."⁸ Some authorities hold that "in these days" of moral decline, it is essential to prohibit yichud between unmarried men.⁹ Others, however, do not believe that the breakdown of sexual mores in "our communities" warrants such a stringency.¹⁰

Female homosexual activity is not mentioned by the Torah, in all probability because, unlike the forbidden unions (arayot) of Leviticus 18 and 20, it does not involve actual intercourse. Rabbinic tradition on the subject is somewhat mixed. The Babylonian amora Rav Huna was of the opinion that "women who commit lewdness with each other" (nashim hamesolelot zo bezo) are forbidden to be married to a priest." This act, he thought, counted as a form of harlotry (zenut) which normally disqualifies a woman from marriage to a kohen (Lev. 21:7).¹¹ The final halakhah, however, took the view that since this act, though licentious (pritzuta), was not one of actual intercourse, these women were permitted to marry into the priesthood, though they remained subject to the corporal punishment customarily meted out to all who violate the standards of sexual propriety.¹² Female homosexual behavior, if not one of the arayot, is nonetheless stigmatized as an example of "Egyptian practice" (ma`aseh eretz mitzrayim) which is prohibited to Jews under the broad sweep of the prohibitions of Leviticus 18. "And what is `Egyptian practice'? For men to marry men, women to marry women, and for a woman to marry two men."¹³

To the extent that the sources offer a rationale for the Toraitic and rabbinic condemnation of homosexual behavior, we find that the concern over the breakdown of marriage, the bearing of children, and "normal sexuality", the proper and accepted relations between the genders, figures prominently. The Talmud explains that the prescription that the male shall "cleave unto his wife" (Gen. 2:24) comes explicitly to prohibit homosexual intercourse; that is to say, homosexual behavior threatens marriage and childbirth.¹⁴ Bar Kaparah offers an agadic etymology for to`evah, the biblical term for "abhorrence": to`eh atta bah, "you go astray after it."¹⁵ The fourteenth-century Spanish commentator R. Nissim b. Reuven Gerondi explains: "one abandons heterosexual intercourse (mishkevey isha) and seeks sex with males."¹⁶ That is to say, since sexual union is traditionally expressed within the context of marriage, the indulgence in homosexual intercourse is destructive of this most basic unit of society and community.¹⁷ This theme continues in the medieval Sefer Hachinukh, mitzvah 209:

All of this leads to the general impression that, in Jewish tradition, homosexual behavior is a transgression against the order of nature; it is "an offense against the foundations of the universe (yesodot haberi'ah) to lie carnally with another male."²⁰

The search for the "reasons for the commandments" (ta`amey hamitzvot) has always been a controversial one in halakhic discourse. Ultimately, after all, Jewish tradition holds that a mitzvah is a mitzvah, a divine decree (gezerat hamelekh) whose authority does not diminish because of our inability to fathom its purpose.<sup>21</sup> Indeed, the example of King Solomon's reliance upon the stated reasons for the laws of kingship in Deuteronomy 17:14-19 is traditionally cited to prove that the investigation of ta`amey hamitzvot leads to disobedience of the Torah.²² Despite this fear, however, the rabbis recognized the value of discovering meaning in the mitzvot even when it was not readily apparent in the biblical text. The Rambam is the great example of one who devoted much of his intellectual energy to this search, as is evidenced by Part III of Moreh Nevukhim and by his programmatic statements in the Mishneh Torah.²³ And it is almost superfluous to remind ourselves that the search for reasons, the rationale and purpose of religious observance, has been a hallmark of Reform Judaism since its inception. When we find that biblical commandments and other traditional institutions no longer reflect our religious consciousness or speak to the felt needs of our times, we do not hesitate to set them aside. Reform Jews have justified their rejection of the old ways according to a number of doctrines--the spirit of prophetic Judaism, the belief in progressive revelation, the commitment to personal religious autonomy, to name but a few. What unites all of them, however, is an awareness that any religious observance or pattern of life, in order to fully express our sense of God and holiness, must correspond to our conception of morality and of appropriateness. Put differently, a mitzvah cannot oblige us unless it has a ta`am, a rationale, unless it makes sense to us in some fundamental way. And for many Reform Jews, including some of us on this Committee, the biblical and rabbinic tradition concerning homosexuality no longer makes that kind of sense, for several reasons.

1. It no longer makes sense to look upon homosexuality as a to`evah. That very term has become ambiguous given our religious world-view and our habits of speaking. The Torah, for example, labels three categories of actions as "abominations": idolatry (Deuteronomy 17:4), the eating of forbidden animal species (Deuteronomy 14:3), and the sexual prohibitions of Leviticus 18 and 20. What these sins share in common is decidedly not the fact that they violate what we would call the "moral law." Rather, they transgress against the biblical boundaries of holiness which are meant to distinguish Israel from the other nations. These are acts, in other words, which are not necessarily "immoral" but Jewishly inappropriate.²⁴

The problems with this concept for contemporary Reform Jews are therefore obvious. We as a movement have long since done away with the dietary laws as an obligatory element of our religious practice. Although many Reform Jews observe kashrut or avoid the biblically-prohibited species, we surely do not say that those in our community who eat these foods are committing an "abomination" thereby. We still oppose "idolatry," but even though we may not accept the practices of other faith communities, we do not tend to label their religious traditions as avodah zarah. Our attitude toward the religions of our neighbors is one of tolerance, not "abhorrence." We continue, of course, to abhor many of the sexual unions proscribed in Leviticus 18 and 20, but we do so not so much because the Torah finds them abhorrent but because we see them as violations of our most cherished moral standards. We condemn incest, for example, because it inherently involves an abusive relationship between family members of unequal status and power; it is an act that is destructive of the healthy personality, one which inflicts deep emotional and psychological damage that might never be healed. We oppose adultery on the grounds that an adulterous act is a transgression against trust and moral commitment between wives and husbands. Even when a spouse knowingly tolerates the adultery of his or her partner, we oppose such behavior as destructive of the family unit.

But while "abhorrence" may be a proper reaction toward many of the forbidden sexual unions (arayot), it does not apply to the case of homosexuality, for the issues cited in the sources as rationales for the prohibition fail to strike us as convincing on moral grounds. This is especially true in that we, unlike our ancestors, are aware of the possibility of committed, stable, monogamous, and loving relationships between members of the same gender. This structure of human life, which parallels the institution of heterosexual marriage, does not produce moral evil; it neither abuses nor betrays the innocent. Nor can we seriously contend that it threatens the family unit and the bringing of children into the world. In a social climate of increasing tolerance, homosexual people are correspondingly more likely to resist entry into heterosexual marriage for the sake of appearance and propriety. An acceptance of homosexuality does not, therefore, augur the breakdown of a household that is less and less likely to exist in the first place. In addition, when homosexual couples are able to bring children into their lives by means of adoption and artificial insemination, it is not true that engaging in homosexual behavior inevitably means the abandonment of that Jewish ideal.

We of the minority do not wish to be misunderstood. We do not claim that the concept of to`evah is of no religious relevance. We, no less than our colleagues, are prepared to view an act as "abominable" when it offends our most basic sense of holiness and Jewish propriety. We simply wish to emphasize that Reform Jews are no longer persuaded to avoid a particular act merely because the Torah calls it a to`evah. For us to accept this designation, the act must be abhorrent to us; it must strike us as a transgression against the most basic standards of kedushah that the Jewish people are called upon to uphold. And we no longer view homosexuality as such a transgression.

2. It no longer makes sense to classify homosexual behavior as a sin, much less a to`evah, given our contemporary understanding of the nature of human sexual orientation.²⁵ This is not to imply that we "understand" fully just what causes a person to "be" a heterosexual or a homosexual or even that we as a society can come to any satisfactory consensus as to what those terms actually mean.²⁶ It is to say, rather, that we tend to regard homosexuality as an orientation, as the product of a complex of causational factors which render it, like heterosexuality, a part of one's psychological makeup rather than the result of a conscious choice on the part of the individual. With this reality in mind, we can conclude that the biblical and rabbinic proscriptions of homosexual behavior do not speak to the situation as we know it today. The Torah, that is to say, punishes males who choose to perform homosexual intercourse; it is silent on the phenomenon of homosexuality, a constitutional orientation to seek sexual intimacy with those of one's own gender. In order to be punished for committing a sin, the act must be the outcome of the sinner's choice, whether that choice is made willfully and knowingly (bemezid) or accidentally (beshegagah). If, however, an individual commits an act under coercion and duress (ones), Jewish law exempts that person from punishment.²⁷ What we know about sexual orientation suggests that it is emphatically not a matter of choice. We also know that gays and lesbians are as capable as heterosexuals of establishing monogamous, stable, and loving relationships with their partners. The tradition, which portrays homosexual behavior as promiscuous and unnatural, clearly does not address reality as we know it to be. And Judaism has not survived and flourished for millennia by ignoring reality. On the contrary: it accepts it, deals with it, and changes its perceptions accordingly.

3. It no longer makes sense to treat homosexuality as a to`evah when many of us in all sincerity no longer respond to it with "abhorrence" or "abomination." This has much to do with our increased awareness of and exposure to gay and lesbian people in our culture. Those who were taught to despise homosexuals and their "lifestyle" have found their perceptions radically altered as they have worked alongside gays and lesbians in business and in school, in the professions and the arts. Gays and lesbians, too, are active members of our synagogues, colleagues in the rabbinate, and creative contributors to our religious and intellectual life. We have come to know homosexual people as people, as human beings who, despite their difference from the rest of us, share the hopes and dreams and human aspirations that are common to us all. All of this has helped to personalize what was once simply a "phenomenon" and a deviation from the norm. It is more difficult to abhor a person, a flesh-and-blood human being, than an idea in the abstract. We have put faces on the idea of homosexuality, and this has made us think deeply about how we have acted and ought to act in the face of that idea, that reality. We have come to realize that our former knee-jerk reactions were hasty, uninformed, out of place.

4. It no longer makes sense to single out homosexuals for distinctive treatment when we acknowledge that we are liberals, heirs to a tradition of thought which holds that a human being's most personal decisions are properly left to private discretion with a minimum of interference from the state or the community. We tend to believe that most matters of sexuality between consenting adults are the business of those adults and not of outside institutions. It is our Reform Jewish practice to speak of these issues in the language of civil rights, a rhetoric of political liberation rather than moral rebuke. Thus, in 1977, the Central Conference of American Rabbis (CCAR), noting its long-standing support for the civil liberties of "all people, especially for those from whom these rights and liberties have been withheld," called for legislation to decriminalize homosexual acts between consenting adults and to remove any and all vestiges of discrimination against homosexuals as persons.²⁸ Moreover, we have adopted this stance within our own ranks. We reject any suggestion that a candidate's homosexuality be used as a bar to deny automatically his or her entry into the rabbinate; we urge that "all rabbis, regardless of sexual orientation, be accorded the opportunity to fulfill the sacred vocation that they have chosen."²⁹ Our attitudes toward homosexual people have departed, radically so, from those which one might derive from the traditional sources.

5. Finally, it no longer makes sense, to some of us, to deny to homosexual people the spiritual satisfactions of Jewish marriage. The CCAR has already declared its support for "the right of gay and lesbian couples to share fully and equally in the rights of civil marriage."³⁰ This is generally understood to mean a broad endorsement of the goals of "domestic partner legislation", under which same-sex partnerships might qualify for the financial and social benefits which society accords to married couples: tax exemptions and deductions; health insurance coverage, and so forth. To this extent, the resolution accords with the halakhah, which permits individuals to make stipulations in matters of monetary law (diney mamonot) that contradict the financial arrangements set forth in the Torah itself.³¹ A community may therefore decide to treat a homosexual couple as a married couple, at least from a monetary standpoint, determining its laws of taxation and social welfare accordingly. But implicit in this position, some of us feel, is the recognition that marriage as a social institution is a proper "fit" for homosexual relationships which, like the best heterosexual relationships, can and do embody the qualities of love, respect, and exclusive commitment. Put differently, marriage is arguably the best and most proper framework within which the adult Jew whose natural desire for intimacy is with members of the same gender can conduct his or her relationships.

For these reasons some of us believe that the time has come for us as rabbis and as a movement to extend this recognition of homosexual relationships to the sphere of religious marriage. We base this belief upon our understanding of Jewish tradition and of Reform Jewish precedent. We hold that homosexuality is no longer a to`evah; it is not a mental illness nor a social deviancy; it is not a perversion of the natural order. Homosexuality is not a choice or a preference; it is not something that one decides to do or to abstain from doing. It is, like heterosexuality, the way one is. It is not, in short, what is condemned by Leviticus 18:23 and 20:13. As such, it makes no sense on religious or moral grounds to differentiate between people on the basis of sexual orientation. As liberals, as Reform Jews, we no longer accept any of the theoretical rationales of the prohibitions against homosexual behavior. We partake of a religious culture which affirms the right and the duty of its members to set aside those aspects of the tradition which no longer reflect our consciousness of reality and morality. We therefore lack any defensible moral or religious grounds to withhold from gays and lesbians the opportunity to express the sanctity of those unions in precisely the way that heterosexual couples have always expressed it: through marriage.

And yet, despite their cogency, these arguments do not convince all of us, certainly not a majority of this Committee, to endorse rabbinic officiation at same-sex "marriage" or commitment ceremonies. We would point out that no resolution of the CCAR has expressed its approval of officiation. The very resolution which calls for gay and lesbian couples to be granted the benefits of civil marriage explicitly declares that "this is a matter of civil law, and is separate from the question of rabbinic officiation at such marriages." The Conference, in other words, does not take the final step of equating civil and religious marriage for homosexuals as do some of our colleagues. Indeed, to the extent that the Conference and its constituent committees have expressed an opinion on the subject, that opinion has been negative. This Committee has held that "however we may understand homosexuality...we cannot accommodate the relationship of two homosexuals as a 'marriage' within the context of Judaism", for none of the elements of kiddushin, of traditional Jewish marriage, can be invoked for that relationship.³² And such was the position of the CCAR's Ad Hoc Committee on Homosexuality and the Rabbinate, whose majority stated in 1990:³³

It is true that this she'elah asks us to reconsider all these precedents and that it is our right and our duty to do so. Yet it is at the least of some real significance that we as a rabbinate do not officially recognize homosexual relationships as marriage. Those of us who are not persuaded that the time has come to change this position wish to explain, as respectfully and cogently as we can, why we continue to adhere to our view.

1. We begin by suggesting that, in this argument, the burden of proof does not rest with us. This is no mere debaters' quibble. Frequently, in discussions of this sort in liberal circles such as ours, one hears the question posed as "why not?" That is to say, "why shouldn't we, as liberals who are open to new ideas, adopt this change?" To frame the issue in this way is to declare that, at least on this subject, the cumulative weight of millennia of Jewish tradition hardly counts. That tradition, as we have seen, condemns homosexual behavior in no uncertain terms, and even the Reform Jewish tradition has to date spoken negatively to the subject of our she'elah. As members of the Responsa Committee, we take tradition seriously and consider it prayerfully. Even on this subject, so often (and, to some of us, falsely) presented as a stark contrast between the values of the present versus those of an outdated past, tradition serves as our interpretive starting point. Those who advocate a revolutionary transformation of Jewish marriage law and practice rightly shoulder the burden of proving that theirs is the better position.

We would add, parenthetically, this note concerning "tradition."³⁴ We do not form our moral beliefs out of thin air, as the result of some contemplative procedure carried on exclusively within ourselves. Nor do we derive them from some absolute source of moral truth that is accepted as determinative by all people everywhere. All our moral beliefs are socially constructed, rooted in the traditions and in the communities in which we participate. A community is the embodiment of a tradition, an ongoing, historically-centered argument about how a particular form of the ideal life is to be lived. A tradition, to be sure, can and does change; it develops as its members respond to new experiences which impel them to revise or modify their beliefs. For this reason, "argument" is a central and necessary feature of the life of any community. But this development and this argument always occur in reference to the beliefs, values, and accumulated experience of that community's past. Traditions, therefore, are inescapably particular; they are the record of a particular community's thought, experience, and struggle with circumstance and change.

What this teaches us is that the choice we face is not a decision between a particular Jewish tradition on the one hand and some set of universally-valid moral precepts on the other, because the latter does not exist in the real world. All evaluative concepts with which we measure and construct our moral universe--concepts such as "good," "evil," and "religious fulfillment"--are particularly determined. They emerge from specific traditions, from the historical religious experiences of specific communities. Our dilemma on this subject arises from the fact that we, as liberal Jews, belong to different communities, each with its own historically-centered tradition. The tradition of Western modernity--which, we point out, is no less "particular" or "historically-centered" than any other--lends itself to certain interpretations, and these affect us deeply. But we are also members of a religious community called Israel, and this means that among the particular vantage points from which we reflect upon our beliefs, the texts and sources of Jewish tradition must inevitably play a central role. We believe that our authority to act as rabbis, especially to officiate at weddings as mesadrey kiddushin, flows not from our perception of ourselves as "modern spiritual leaders" but from our standing as representatives and teachers of Torah and Jewish tradition. Our moral horizon is shaped, to a significant extent, by our interaction with Jewish literature and the Jewish past. It is so; it must be so; and we need not apologize when those sources call upon us to consider conclusions which differ from those seemingly demanded by the other particular traditions in which we partake.

2. Those who advocate homosexual marriage have not, in the opinion of our majority, met their burden of proof. That is, their arguments do not succeed in overcoming the opposition to this practice found in both the Jewish and the Western traditions.³⁵ We do not accept the suggestion that the ritual category of to`evah is irrelevant to the question under discussion. While we Reform Jews have departed from traditional practice in many areas, we continue to "abhor" virtually all of the sexual prohibitions listed in Leviticus 18 and 20 as destructive of the Jewish conception of a life of holiness and morality.³⁶ While it may be true that we as a community no longer look upon homosexual behavior, as we once did, as a revulsive act, the fact remains that no Jewish community has ever gone so far as to sanctify as marriage a sexual relationship which the Torah defines as ervah. Not even we, with all our liberality, have ever done this before.³⁷ To do so now would be a revolutionary step, one which would sunder us from all Jewish tradition, including our own, down to the most recent times.

At this point, we raise the delicate issue of Jewish unity. The extension of kiddushin to gays and lesbians would break so sharply with the standards of religious practice maintained by virtually all Jewish communities as to wreak havoc upon our relationships with most of them. A decision of this nature would continue a trend, which many Reform rabbis find quite troubling, of pushing the Reform movement toward the margins of our people, of the Jewish community as a whole. It would have dramatic and negative effects upon the standing of our Progressive colleagues in Israel and elsewhere. We know that the slogan "kelal yisrael" has often been used to intimidate us, to urge us to compromise our Reform Jewish principles to mollify those who will never compromise their own. We also know that the Ad Hoc Committee on Homosexuality and the Rabbinate has already addressed this issue, declaring that while we ought to be sensitive to this concern, we must make our decision independently of it, in the context of the North American situation, according to "the principles and practices of Reform Judaism."³⁸ Gives, however, that our majority believe that the principles and practices of Reform Judaism do not require that we sanction marriage for homosexual couples, we would not set aside our concern for Jewish unity--which, we submit, is itself a "Reform Jewish principle."

3. Reform Judaism, as most of us understand it, does not mandate gay/lesbian marriage. Yes, we recognize that the attitudes of our community and society toward homosexuals and homosexuality have undergone a profound transformation in recent years. All of us are encouraged at the signs that a long history of repression and hatred is at last beginning to give way to a spirit of tolerance and inclusion. All of us stand as one behind the statement of the Ad Hoc Committee that "all human beings are created betselem Elohim ('in the divine image'). Their personhood must therefore be accorded full dignity. Sexual orientation is irrelevant to the human worth of a person."³⁹ But this affirmation, which demands that we work for full social and political equality for gays and lesbians, does not logically require that we must also support a Jewish religious "right" to homosexual marriage. From our acknowledgement of the right of gay and lesbian couples to arrange their financial affairs in the way they see fit, it does not logically follow that we must declare that their relationship partakes of the same religious sanctity as does traditional marriage. Similarly, we recognize that the understanding of homosexuality as an orientation rather than an intended choice (ones rather than ratzon) leads to the conclusion that the act of homosexual intercourse cannot be understood in traditional legal terms as a punishable sin. Again, however, the fact that a pattern of behavior is in some way involuntary does not necessarily mean we must sanctify it. Indeed, given the prevailing uncertainty as to the causes and development of sexual orientation--genetic or environmental? constitutional or socially constructed?--some of us are quite hesitant to draw the kinds of conclusions which need to be drawn in order to justify the institution of homosexual marriage.⁴⁰

4. We are, all of us, committed to enabling gays and lesbians to live full Jewish lives within our communities. And, since we acknowledge that gays and lesbians are as capable as heterosexuals of forming monogamous, stable, and loving relationships, this commitment might--or might not--suggest a ritual response that reflects the spiritual reality which shapes the lives of these Jewish human beings. We shall consider this question in detail in Part III of this responsum. In itself, however, this commitment does not require that we endorse the creation of a religious institution of marriage for homosexuals when the entirety of Jewish tradition suggests that "marriage" is an exclusively heterosexual phenomenon. Again, it does not logically follow that our concern for gays and lesbians demands that we officiate at marriage ceremonies for them.⁴¹

From this discussion it should be obvious that the members of this Committee differ widely and deeply on the general subject of sexual orientation and on the specific issue of homosexuality and Judaism. We disagree fundamentally on the relevance of the Jewish, Reform Jewish, and Western traditions in addressing the issues raised by this she'elah. The moral and religious commitments that we do share lead us to radically differing conclusions. None of the moral languages we customarily speak when arguing our positions affords us sufficient common ground to arrive either at an answer or even at a consensus as to how the question is to be addressed.

II. Kiddushin, Reform Judaism, and Homosexuality.

There is, however, another way to frame the issue. Perhaps, we might say, we ought not to proceed from a consideration of our attitudes toward homosexuality and sexual orientation but rather from our conception of Jewish marriage. As our sho'el puts it: do homosexual unions "qualify as kiddushin from a Reform perspective"? That is to say, given that we recognize the existence of stable and committed gay and lesbian relationships, do these unions display enough of the major characteristics of marriage so as to deserve that title? To put the question in this way entails that we define, as carefully and as fully as we can, what we mean by "Jewish marriage." Does our definition of that institution allow for its extension to gay and lesbian couples? It is to this exploration we now turn.

It is important to note that, when we refer in this section to "marriage," we do not mean the idea of marriage in the abstract or marriage as a cross-cultural anthropological fact. We mean rather Jewish marriage as an aspect of the social and religious life of a particular historical community. Jewish marriage is an institution and a pattern of life with its own unique structure and history. It resembles, in many respects, other institutions of marriage, yet in many other ways it differs from them, and radically so. To say that a monogamous homosexual union is "like" a marriage does not prove, therefore, that it qualifies under the definition of Jewish marriage. Before we can ask whether to extend the possibility of marriage to gay and lesbian couples, we need first to understand the institutional nature of Jewish marriage and to consider the variations which Reform Judaism has introduced into the practice. It is in this way, and only in this way, that we can begin to consider whether homosexual couples can be included within the circumference of a "Reform perspective" on kiddushin.

What is Kiddushin? The word kiddushin, by which we designate Jewish marriage, is discussed as follows in an important Reform Jewish text:⁴²

This passage speaks the language of agadah, the evocative, lyrical, and metaphorical vernacular of Jewish lore. Taking as its point of departure a single word, kiddushin, it weaves a rich tapestry of religious ideas. What do we mean by "sacred", kadosh? What can it mean to call the institution of marriage a "sanctification"? How do the images, feelings, and responses we associate with the concept of holiness shed light upon the nature and purpose of the marital bond? To the extent that we adopt this agadic approach to the definition of kiddushin, then surely it is possible to make a place for gays and lesbians within the institution of marriage. For if kiddushin, like its Hebrew root, implies a "setting apart," the creation of a relationship of exclusive commitment and devotion similar to that which defines the relationship of Israel to its God, then homosexuals, who are as capable as heterosexuals of establishing exclusive and loving unions, deserve to be included.

Yet the agadah does not define kiddushin, any more than poets define marriage. True, agadah calls our attention to the most exalted possibilities inherent in the union of husband and wife. But it does not describe (because that is not its function) the nature of marriage as a legal institution, which it manifestly is.⁴³ That is to say, the full meaning of kiddushin cannot be conveyed by means of a homiletical treatise upon the etymology of that word. It is a complex of law and custom which, like "marriage" in every other social tradition, effects far-reaching transformations in the legal status of the parties involved. Our hearts soar at the mention of the aggadic aspects of kiddushin. But to ignore the legal, halakhic aspects of Jewish marriage is to distort what kiddushin really is and the way it functions in the fabric of traditional Jewish life.

Kiddushin is the rabbinic legal term for "Jewish marriage," which means first and foremost a marriage contracted between two Jews.⁴⁴ A marriage contracted with one of the arayot--a partner to whom one is prohibited by Leviticus 18--is invalid, and no get is required to permit the parties to remarry.⁴⁵ The legal bond of kiddushin (also called erusin) is created by a ma`aseh kinyan, an act of acquisition performed between the couple. In its accepted, customary form,⁴⁶ this act requires that, in the presence of two witnesses,⁴⁷ the man give the woman a ring or some other object of monetary value and declare, either in an explicit verbal formula or by behavior which clearly manifests his intent, that he wishes her to he his wife.⁴⁸ If she accepts the ring or object in a manner which indicates her freely-given consent to the marriage,⁴⁹ the couple are betrothed, though the marriage process is not completed until the ceremony of chupah or nisu'in.⁵⁰

Kiddushin creates the following legal consequences.

1. The wife enters the husband's legal domain, or reshut, meaning that she is permitted sexually only to her husband. In so doing she becomes an ervah to all other men, and sexual intercourse between her and any of them is adultery. This, as far as the Talmud is concerned, is the original meaning of the word kiddushin: "he forbids her to all other men, as though she were hekdesh (consecrated property)."⁵¹ The wife's status changes only at the dissolution of the marriage, upon the husband's death or upon divorce, at which time the woman "acquires herself" and re-enters her own reshut.⁵²

2. The list of arayot, of forbidden sexual partners, expands to include the relatives of the spouse, as mentioned in Leviticus 18 and 20. The offspring of any of those prohibited unions, whether incestuous or adulterous, is a mamzer.⁵³

3. Once the couple are betrothed, the laws of levirate marriage and release (yibum and chalitzah) go into effect. Should the husband die without having children, his widow is forbidden to remarry until her brother(s)-in-law perform either of these two rituals.⁵⁴

All the other legal consequences of Jewish marriage, primarily those relating to the financial arrangements between the husband and wife, come into being at the ceremony of nisu'in.

Kiddushin, therefore, is a legal transaction which alters the conjugal status of the parties involved, making them subject to the laws of adultery, arayot, and mamzerut. The nature of kiddushin as a matter of legal experience is best summarized perhaps in the words of the blessing (birkat erusin) which the rabbis ordained for recitation at the time the transaction is carried out:⁵⁵

In other words, Jewish marriage as a legal act establishes and transforms previously existing sexual boundaries. Two individuals who were previously forbidden to each other sexually are now permitted as husband and wife. Individuals who previously were potential marriage partners have now, due to their family relation to our spouse, become arayot, prohibited as incest. A formerly unmarried woman is now forbidden by the law of adultery to all men but her husband until he dies or the two of them are divorced.⁵⁶

It is through reference to the arayot⁵⁷ that we can understand the meaning of kiddushin as a legal institution. It is a "sanctification," a "setting apart", the creation of an exclusive sexual relationship between husband and wife by which God sanctifies (mekadesh) Israel. Just as the early rabbis understood the commandment to "be holy" as a call to abstain from the arayot, so kiddushin rests upon a clear conception of the sexual relationships which the Torah has prohibited and permitted to the Israelite community. There is no such thing, in other words, as Jewish marriage in the absence of the prohibitions of the arayot, the recognition of the boundaries of permitted and prohibited sexual intercourse. And no marriage is a valid Jewish marriage if it is contracted between persons prohibited to each other as arayot.

Reform Judaism and Kiddushin. At this juncture we should ask ourselves whether and to what extent we continue to accept this halakhic notion of kiddushin in our Reform practice. For if our understanding differs substantially from that of the rabbinic tradition, we might have strong ground on which to claim that very different sorts of "marriage" qualify as kiddushin "from a Reform perspective."

Again, differing perspectives exist among us.

On the one hand, some of us would argue that Reform Jewish marriage is essentially different from the biblical and rabbinic institutions of erusin and kiddushin. We do not regard marriage as a kinyan, an act by which the woman is "acquired" by her husband and passes into his legal domain. We reject the association of marriage with the other "acts of acquisition"--of land, chattel, Hebrew and Canaanite slaves--redacted together in the first chapter of Mishnah Kiddushin. And the widespread custom among us for the bride to "sanctify" the groom, just as he "sanctifies" her, by offering him a ring and pronouncing the formula harey attah mekudash li suggests that we have transformed marriage into an egalitarian, reciprocal reality which differs substantially from the structure of kiddushin in the halakhic tradition.

The tradition's linkage of marriage to the arayot is also problematic for us. It is a fact, first of all, that we no longer observe the laws of yibum, chalitzah, and mamzerut. And, as we discuss above, the very notion of arayot has been reconstructed in our discourse from a ritual to a moral problem. Thus, while we without any doubt acknowledge that numerous sexual relations remain forbidden, our primary concern is that the union between spouses be one that expresses our deepest moral conceptions of marriage, that it be one of exclusive sexual commitment. And there is no reason why gays and lesbians cannot establish such a union. When we stand under the chupah, we celebrate a joining together of two individuals in a relationship of equality and of love, one that promises emotional as well as sexual fulfillment, one which allows them to build a home that expresses Jewish values. This, in its essence, is what we mean when we call our marriages by the name kiddushin. If gay and lesbian couples, no less than their heterosexual counterparts can aspire to that kind of relationship, it would seem that kiddushin or "marriage", as we Reform Jews understand those terms, are fit names for it.

Yet the majority of us would argue that this definition of Reform Jewish marriage, while accurate, is but part of a wider picture. The classical rabbinic conception of kiddushin retains much of its relevance for us. We note, first of all, that the language of kinyan or acquisition is the mechanism by which Jewish law creates legal obligations of any kind; thus, even if we no longer hold that the husband "acquires" the wife, both parties do indeed "acquire" from the other all the legal obligations which flow from the formation of marriage. In addition, we would claim that the reciprocal act of "sanctification" which takes place under a Reform Jewish chupah indicates the strengthening rather than the abandonment of the concept of kiddushin. It is our conviction that both bride and groom pass into the other's domain. The exclusivity of the marital relationship, the "setting apart" that lies at the heart of the idea of holiness and kiddushin itself, is now a mutual reality. We have not discarded the idea of kiddushin. On the contrary: we have extended its definition and its essence so that all its power and stringency apply to the husband as well as to the wife.⁵⁸

The issue of arayot, too, remains central to our conception of marriage. It is certainly true that, when standing under the chupah on the day of their great joy, the bride and the groom in all likelihood do not think about the laws of incest, adultery, and divorce. Their minds and those of the community are rightly centered upon the more agadic and poetic elements of the union they are forming. Yet the legal facts of personal status continue to define the structure of Jewish marriage as we understand it. We may not discuss the arayot in our wedding sermons, but they are no less real to us on that account. We abhor incest⁵⁹ and marital infidelity, and we do not remarry either husband or wife until they have brought an end to their marriage by legal means.⁶⁰ The marital ceremony, as the birkat erusin teaches us,⁶¹ comes to establish the contours of the arayot; it draws lines and sets boundaries which we continue to respect. Kiddushin is therefore more than an exalted moment of spirituality. It is as well a legal institution, whose structure and boundaries, no less than its feelings and emotions, are legitimate matters of rabbinic concern.

Given that the function of kiddushin has always been to draw lines that separate us (i.e., "sanctify us") from the arayot, it is implausible to suggest that this legal act can actually permit a sexual relationship which the Torah and all of tradition so define.⁶² Moreover, as we have noted, kiddushin effects a change in the legal status of the parties by making them subject to the laws of adultery and divorce and by expanding the range of the prohibited incestual arayot. Whatever the potential of homosexual couples to establish loving and stable relationships, these laws do not apply to them. The partners in a homosexual union cannot legally commit incest with each other's relatives; they cannot legally commit adultery; and neither requires a divorce should he or she desire to enter into a Jewish marriage. It therefore makes little sense to use the term kiddushin to describe a union which involves none of these matters and does not alter the legal status of its participants.⁶³

Most of the members of this Committee oppose the use of the term kiddushin to describe a gay or lesbian union, precisely because the historic definition of that term, its legal content and the notions of kedushah which lie at its foundations rule out its application to anything but heterosexual Jewish marriage. We accept the traditional understanding of Jewish marriage as that kind of marriage which recognizes and is contracted within the sexual boundaries set by the Torah's law of arayot. Even those of us who believe that kedushah, sanctity, can exist in gay and lesbian relationships and who would recognize those unions as a form of Jewish marriage concede that the word kiddushin is difficult to separate from its heterosexual connotations.

Although the disagreements among us are real and deep, proceeding from radically different perspectives on homosexuality and Judaism and on the nature of Jewish marriage, there are some things--to be sure, basic and elementary things--on which we do see eye to eye. Therefore, before we rehearse our differences, let us acknowledge those assumptions we share in common. In the midst of divisiveness, these points of agreement may serve to remind us that, though we dispute the answers, we as rabbis are united by the questions we ask and by the religious commitments that stir us to ask them.

We agree that all human beings, regardless of sexual orientation, are created in the image of God and that it is the religious duty of Reform rabbis to treat all of them with respect and with love. This statement, we further agree, is more than a platitude; it is an aspiration which calls us to action. It demands of us that we receive all those who come before us with compassion and empathy. It demands that we hear them before we preach to them, that we listen to their stories of pain and exclusion, and that we respond to them as rabbis, as teachers of an ancient and honorable religious tradition.

And we agree that this response, first and foremost, must be one of invitation. Two centuries of modernity have brought us much progress, but they have exacted a price in the form of Jewish alienation. In our day, when so many Jews for so many reasons are spiritually exiled from Torah and from Jewish life, the mitzvah of outreach partakes of the age-old Jewish dream of kibutz galuyot. We must practice that mitzvah with all our strength.

What, then, do we say and how do we respond to the gays and lesbians in our midst who join together in committed relationships and seek to build a home and a life according to a pattern that expresses Jewish values? What does the duty of compassion and empathy, the mitzvah of outreach require us to do?

For some of us, that duty requires the institution of wedding ceremonies for homosexual couples. To include gay and lesbian Jews as equal members of our communities means that we must advance far beyond mere toleration of their presence. They should rather be encouraged, like their heterosexual counterparts, to find partners and to form monogamous, stable, and hopefully permanent relationships. We do not believe that, in so doing, we either promote homosexuality or lead more heterosexuals to become homosexuals; we believe, rather, that we will be reducing the number of gay and lesbian couples who are living in unstable or promiscuous fashion.

More than that: the fact that gay and lesbian Jews are seeking to hold ceremonies establishing their relationships formally and celebrating them is not a threat to the traditional Jewish values of marriage and family but a supreme tribute to them. When two Jews marry, they do not seek only to legitimize their sexual relations and their offspring. They link themselves to the Jewish past, present and future and to a series of concentric circles of family, friends, community, and kelal yisrael around them. The wedding ceremony is that moment of magical transformation when two individuals become a bayit beyisrael. These layers of meaning do not disappear when the individuals are homosexual.

The ritual format by which Jewish tradition affirms this transformation is the wedding. Since we know that sexual orientation is both unalterable and irrelevant to the capacity of an individual to form a loving and stable relationship with another; and since it is our business and our calling to promote the formation of Jewish households which affirm Jewish values, we should offer wedding ceremonies to gay and lesbian Jewish couples. Some Reform rabbis will call these ceremonies kiddushin, while others may prefer a different term that carries less historical baggage. Some will structure a ceremony filled with the rituals and choreography of the traditional Jewish wedding (chupah, wine, the breaking of a glass, the reading of a ketubah, and so forth); others may prefer to create new ceremonies whose imagery does not so obviously mirror that of the traditional wedding of bride and groom. But in either case, we will be fulfilling our rabbinic responsibilities to Jewish people in our time, in the world and the culture in which we live.

The majority of the members of this Committee, however, do not interpret our responsibility as rabbis to warrant officiation at weddings or wedding-like "commitment ceremonies" for gay and lesbian couples. We hold that we are empowered to "officiate" only and exclusively at Jewish marriage ceremonies, and we know of no form of "Jewish marriage" other than kiddushin. We understand kiddushin, in both its traditional and its Reform Jewish manifestations, as an institution whose legal essence excludes homosexual relations. The performance of a ceremony that resembles but is not kiddushin does not qualify as a Jewish marriage, even if the couple regard it as such.⁶⁴

It is true that we Reform Jews are accustomed to creating new liturgies and rituals all the time, so that we might substitute another language and another kind of wedding ceremony for kiddushin should we for whatever reason deem the latter unsuitable for gay and lesbian unions. Yet so long as we hold that "heterosexual, monogamous, procreative marriage is the ideal human relationship for the propagation of the species, covenental fulfillment, and the preservation of the Jewish people,"⁶⁵ we believe that, however we respond to those whose relationships do not adhere to this ideal, the public ceremony which celebrates Jewish marriage should correspond to it as closely as possible.

It is also true that not all Jewish marriages realize this ideal. Not all Jewish marriages, for example, are procreative. According to halakhah, a marriage between a man and a woman who cannot have children, while certainly to be discouraged as long as the man has not fulfilled his obligation to "be fruitful and multiply", is nonetheless valid.⁶⁶ To this we would say, first, that the Jewish tradition has tended to view this situation as one of sadness and even tragedy, and second, that the marriage of an intentionally childless couple, if not ideal from the rabbinic perspective, does not transgress the biblical arayot. No power which we feel we possess as rabbis is sufficient to declare any of the relationships prohibited in Leviticus 18 and 20 to be a Jewish marriage.

It is true, moreover, that gay and lesbian couples are capable of establishing stable and committed relationships--marriages in fact if not in law. The same is true of couples of mixed religious identity. We are well aware of the pressures placed upon rabbis to officiate at mixed marriages, on the grounds of outreach, compassion, a desire to include the couple within the Jewish fold. We accept those values; we do not wish to turn the intermarried couple away from the Jewish community. But we as a Conference and as a Committee have resolved that these concerns do not warrant our officiation at mixed marriages, for among other reasons because we cannot define mixed marriage as Jewish marriage, the only kind of marriage we as a community are empowered to provide. We are deeply concerned that, by granting recognition to gay and lesbian unions, we will be unable in the future to defend our position on mixed marriage. Our congregants will wonder, with some justification, why we officiate at one kind of marriage that Torah finds unacceptable but not at another.

The two cases, of course, are not exactly parallel. The non-Jewish partner in a heterosexual relationship has the option to convert to Judaism. Jewish marriage is a real possibility for that couple, and the rabbi can say: "I am not turning you away; I offer you the option of Jewish marriage as this community understands it. Should you not accept that option according to its inherent rules, that is your choice. You have by your own free will rejected Jewish marriage; the community has not rejected you."⁶⁷ So long as we recognize sexual orientation as unalterable, the element of "choice" does not apply. If we do not offer them marriage, there is no other religious option available for gay and lesbian couples. Moreover, when both partners in a homosexual union are Jews, their household will by definition be a Jewish one, something we cannot say in the same way for a religiously-mixed couple. A rabbi who officiates at wedding ceremonies for two Jewish homosexuals can therefore explain with consistency and justification why he or she does not also officiate at mixed marriages.

With all of that, however, we continue to live in a world where appearances count and where impressions can make all the difference. When a rabbi conducts a commitment ceremony for a homosexual couple, we cannot expect that the community will not learn from that act that Judaism, as represented by the rabbi, sanctions this union as a marriage, even though Jewish law and tradition do not recognize it as such. Distinctions between one kind of "non-Jewish marriage" and another, if obvious to the rabbi, will not be so clear to the community. Inevitably, the rabbi will be placed under ever-increasing pressure to officiate at mixed marriages, which are also unions between loving and committed persons which Jewish tradition does not recognize as marriage. And even if that individual rabbi can withstand the pressure, the Reform rabbinate as a whole will be buffeted by what many in our community will consider justified outrage. When some Reform rabbis depart from tradition to the extent that they conduct "weddings"--by whatever name--for gays and lesbians, many of our congregants will ask, quite reasonably, why they and other Reform rabbis refuse at the same time to abandon tradition to marry religiously-mixed couples.

That most of us are disinclined to conduct wedding ceremonies for gay and lesbian couples does not imply that we can make no positive ritual response to their presence within our communities. On the contrary: so long as we welcome them into our midst, it is our duty as rabbis to accompany them, as we seek to accompany all our people, along the path of Jewish life. How might we do this, if we do not recognize homosexual unions as marriages?

We might begin by acknowledging that, whether or not we define them as "marriages," homosexual unions are households, the nuclear social and family units which compose our communities and whose strength and stability is a primary Jewish religious concern. To speak of a gay or lesbian union as a household does not imply that we offer ritual sanctification to their sexual union or, indeed, that we must say anything about it. It is to recognize that, however we understand the nature of kiddushin, we are dealing here with a Jewish home, the classic environment of the Jewish experience. These individuals have formed a union bonded together by cords of love, and that, without any question, is a positive Jewish value.

This recognition quite properly brings any number of ritual responses in its wake. We are all familar with ceremonies, traditional and creative, which speak to the life of the Jewish household. Families dedicate their homes, and they celebrate significant moments in the lives of their members. The ceremonies which mark these occasions are as appropriate for gay and lesbian households as for all others. In addition, even though most of us are hesitant to sanction actual wedding ceremonies for gays and lesbians, there is no reason why a community cannot offer a ceremony of welcome for any new household which joins their ranks. A number of us, too, see no reason why homosexual couples might not observe their personal semachot at the synagogue as do other Jews, perhaps by sponsoring a kiddush or an oneg shabbat. If words of Torah are spoken on these occasions, they may take on the character of a religious festivity, a se`udat mitzvah. To accept homosexual couples as households, in other words, is to invite them to express that identity according to the full range of possibilities afforded by the Jewish ritual tradition.

We realize that those who favor rabbinic officiation at homosexual weddings may view the ritual recognition of gay and lesbian households as an inadequate substitute. Yet they may concede that, viewed against the backdrop of sacred text and Jewish history, the declaration by a rabbinic body that gays and lesbians can form a household and constitute a family represents a remarkable transformation in Jewish religious thought. To say that the community ought to accept gay and lesbian couples as households in every respect, if not a totally satisfactory solution to the problem before us, can still do much to focus our people's attention and energies upon its most essential aim: the strengthening of Jewish life for all Jewish families. And this may help restore a sense of community that seems at times to have disappeared in the controversy surrounding this issue.

To summarize, we note the following points.

1. We as a Committee acknowledge that our beliefs concerning the nature of human sexual orientation differ significantly from those of the past, even the recent past. The majority of us, however, are not persuaded that this transformation in our attitudes requires that we recognize and insitute a system of homosexual marriage within our congregations and communities.

2. The majority of this Committee define "Jewish marriage" as kiddushin. That concept, whether understood according to its traditional terms or its Reform interpretation, is a legal institution whose parameters are defined by the sexual boundaries which Jewish law calls the arayot. Homosexual relationships, however exclusive and committed they may be, do not fit within this legal category; they cannot be called kiddushin. We do not understand Jewish marriage apart from the concept of kiddushin, and our interpretation of rabbinic authority does not embrace the power to "sanctify" any relationship that cannot be kiddushin as its functional equivalent. For this reason, although a minority of us disagree, our majority believes that Reform rabbis should not officiate at ceremonies of marriage or "commitment" for same-sex couples.

3. Our duty of outreach and our concern for all Jews require that rabbis and communities consider other ritual and social means by which homosexual couples might express their identity as households and families within the wider community of Israel.

In presenting this responsum, we have sought to outline the various positions held by our members as completely and as honestly as we can. The result is a teshuvah which, because it speaks several different languages of argument, expresses in literary form the deep divisions which split us and all our colleagues in the Conference. Though we have arrived at a majority opinion, we have failed to reach a consensus as to how we as a community ought to understand and talk about this question. Some day, history may permit us as a movement or a Conference to reach that consensus. Some day, the controversy over the Jewish religious status of gay and lesbian unions may be resolved to the satisfaction of all. Given, however, that such a day is yet far off, we do not believe that anything of value can be accomplished by declaring through majority vote that one position or the other is the official policy of the Conference. A resolution at this juncture would do little to bring us together. It would persuade no one; it would change no minds. On the contrary: it would stifle the possibility of genuine conversation among us, serving but to enrage and to embarrass the adherents of the losing side. We urge our colleagues to refrain from taking that step.

What do we advocate in its stead? We call upon our colleagues to do what we have so haltingly attempted to do in this responsum: to talk; to explain; to justify and to argue. Our goal should be the recovery of a common discourse on this most divisive of subjects. To achieve it will take much time, a great deal of patience, and no little faith in each other. And it will require that we renew each day our commitment to conduct our discussion in an atmosphere of mutual respect. No disagreement that occurs among us, however heated, and no controversy that divides us, however intractable, should cause us to doubt or to denigrate the religious sincerity of those who take the opposing view. As rabbis, we owe each other the presumption that all of us are students and lovers of Torah, whose intentions are honorable even though our arguments do not always succeed in persuading. We know that mutual respect does not guarantee that we will reach a solution satisfactory to all. Yet we also know that, in its absence, no solution and no learning are possible.

¹ "At first, there was but one machloket in Israel...but when the students of the schools of Hillel and Shamai became numerous and did not study sufficiently, the disagreements multiplied, and Israel was divided into two sects...which will not reunite until the coming of the Messiah"; PT Chagigah 2:2 (77d).

² See M. Sanhedrin 7:4, BT Sanhedrin 54a-b, and Yad, Isurey Bi'ah 1:4: the penalty is sekilah, or "stoning" according to its particular halakhic form (M. Sanhedrin 6:4).

³ Male homosexual intercourse features as one of the wicked deeds of the Sodomites (hence, "sodomy"; Gen. 19:5) and of the Benjaminites in Gibeah (Jud. 19:22). In addition, the kadesh or male prostitute (I Kings 14:24, 15:12; II Kings 23:7) proscribed in Deut. 23:18 may have provided male homosexual intercourse; thus, at any rate, is how the Talmud (BT Sanhedrin 54b) interprets the verse, although Targum Onkelos reads it differently.

⁴ However, rabbinic tradition affirms that male homosexual intercourse (mishkav zakhur), like the other arayot, is forbidden to Gentiles as well; BT Sanhedrin 58a-b; Yad, Melakhim 9:5.

⁵ The concept of holiness is here identified with that of distinctness, of separateness from other peoples and their way of life (20:24, 26), a theme to which we shall return below.

⁶ See, for example, the story of R. Yehudah ben Pazi, who discovers two men having intercourse in the attic of the house of study. They warn him to keep silent, since in court his own testimony would be outweighed by theirs; YT Sanhedrin 6:3(6), 23c.

⁷ M. Kiddushin 4:14; BT Kiddushin 82a; Yad, Isurey Bi'ah 22:2; SA EHE 24.

⁸ Yad, loc. cit.

⁹ R. Yosef Karo in SA, loc. cit. See Be'er Hagolah, no. 3: "these are his own words"; i.e., an opinion not derived from sources or precedent.

¹⁰ Bayit Chadash to Tur, EHE 24; Chelkat Mechokek and Beit Shemuel to SA, loc. cit.; Yam shel Shelomo, Kiddushin 4:23; Arukh Hashulchan, EHE 24, par. 6. This applies in general. When a man has committed an act of homosexual intercourse, some require that he avoid all yichud with males in the future; see R. Chaim Pelaggi, Ruach Chayim EHE 24.

¹¹ BT Shabbat 65a-b; BT Yevamot 76a, Rashi, s.v. pesulot lekehunah.

¹² BT Yevamot 76a; Yad Isurey Bi'ah 21:8; SA EHE 20:2.

¹³ Sifra to Lev. 18:3; Yad loc. cit.

¹⁴ BT Sanhedrin 58a. Note Rashi's comment to the next part of the Genesis verse, "and they shall become one flesh": "a child is created by both male and female, and it is in the child that their flesh becomes one."

¹⁵ BT Nedarim 51a.

¹⁶ Ran, Nedarim 51a, s.v. to`eh atta bah.

¹⁷ See also Gen. Rabah 26:5 and Lev. Rabah 23:9: the generation of the Flood was destroyed because they wrote wedding contracts for males and animals.

¹⁸ See BT Gitin 41b and Arakhin 2b: the world was created only for the sake of the commandment "be fruitful and multiply", as it is said (Isaiah 45:18), "He did not create it for waste, but formed it for habitation."

¹⁹ BT Yevamot 61b-62b; Yad, Ishut 15:7. A dispute exists in the literature as to whether a man ought to continue to try to beget children even after he has fulfilled the Toraitic mitzvah of procreation. Rambam holds, at least as a matter of Torah law, that one who has fulfilled this commandment may then marry a woman who is not capable of bearing children.

²⁰ Torah Temimah to Lev. 18:22, no. 70, on BT Ned. 51a.

²¹ BT Berakhot 33b; Yad, Tefilah 9:7.

²² BT Sanhedrin 21b.

²³ See Yad, Me`ilah 8:8 and Temurah 4:13.

²⁴ See BT Avodah Zarah 66a and 71a, and Rashi to Deut. 14:3: a to`evah is that which God declares "abominable" and not necessarily that which we, on the basis of our unaided reason or moral sense, would find to be so.

²⁵ In this we part company from the opinion expressed by our teacher, R. Solomon B. Freehof, who in a 1973 responsum (American Reform Responsa, no. 13) clearly declares homosexuality to be in the category of "sin." We would note that his teshuvah makes no mention at all of the nature of homosexuality as a sexual orientation, a structure of psyche which is not the product of individual choice. As such, we feel that its message has lost much of its relevance for today.

²⁶ We cannot, in this setting, enter into a detailed consideration of the vast scientific literature on the nature and causes of human sexual orientation. Nor, for that matter, are we qualified to judge the scientific accuracy of that material. The CCAR's Ad Hoc Committee on Homosexuality and the Rabbinate, reporting to the Conference in 1990 (CCAR Yearbook 100 (1990), 109-110, found that the scientific community lacked unanimity on this question and that the very definition of sexual orientation depends largely upon the interpretations and constructions which various disciplines and groups place upon that concept.

²⁷ The rule is ones rachmana petarei, "one is legally exempt for acts committed under duress"; see BT Bava Kama 28a and parallels. A problem with this analysis is that gilui arayot, the commission of acts of intercourse forbidden in Lev. 18 and 20, is normally prohibited even on pain of death; BT Sanh. 74a. Moreover, ones in sexual cases applies only to the female or passive "partner;" the male or active "partner" by definition is said to perform intercourse with intention; see BT Yevamot 53b and Yad, Isurey Bi'ah 1:9. However, see Yad, Yesodey Hatorah 5:4: when a person commits any act, including gilui arayot, under duress, he or she does not suffer the Torah's prescribed punishment. Moreover, there are times when human nature "compels one to desire" an otherwise forbidden thing and thus mitigates the act from the law's point of view (Yad, Isurey Bi'ah 1:9). This can be said to apply to our case, where homosexual behavior results from an orientation which, whatever its cause, is beyond the control or the will of the individual.

²⁸ CCAR Yearbook 87 (1977), 86; CCAR Yearbook 100 (1990), 107.

²⁹ CCAR Yearbook 90 (1990), 109 and 111. There, it is reported that the Hebrew Union College-Jewish Institute of Religion considers a rabbinical-school applicant's sexual orientation only within the context of that applicant's overall suitability for the rabbinate generally. The resolution as passed by the Conference endorsed this admissions policy.

³⁰ CCAR Yearbook 106 (1996), 330.

³¹ See BT Bava Metzi`a 94a and Yad Ishut 6:9. On this basis, a husband and wife can stipulate whatever financial arrangements they wish to govern their marital affairs; see Yad, Ishut 12:1ff.

³² Contemporary American Reform Responsa, no. 200 (from 1985). See also American Reform Responsa, no. 14 (from 1981).

³³ CCAR Yearbook 100 (1990), 110.

³⁴ Readers will note the affinity between the ideas expressed in this paragraph and the works of such contemporary thinkers as Hans-Georg Gadamer, Alisdair MacIntyre, Michael Perry, Hillary Putnam and others. We are in no position to consider here whether these thinkers are "right" about the concept of tradition. We refer to them only as a reference point for a view we find persuasive: namely, that all moral thinking begins with tradition.

³⁵ It bears emphasis that this she'elah is not a case of conflict between "Jewish tradition" on one side and "modernity" on the other. As of this writing, no "modern", "liberal" Western jurisdiction recognizes homosexual marriage as legally valid. This fact is evidence that the "modern Western tradition" is at least as divided as we are on this question and offers but uncertain support to the advocates of same-sex marriage.

³⁶ This is a point of vital significance. While the fact that Reform Judaism has departed from traditional standards of practice in one area suggests that we might abandon them in another, it does not logically require that we do so. Each issue has to be judged on its own particular merits.

³⁷ The prohibition against sex with a nidah, or menstruating woman (Lev. 18:19), may be something of an exception. Though we have never "legalized" it, the subject is absent from virtually all discussions of sexual ethics in Reform Judaism. At any rate, the halakhah also distinguishes between the nidah and the other arayot in that kiddushin with the former, unlike with the latter, is recognized as valid; BT Yevamot 49b and SA EHE 61:1.

³⁸ CCAR Yearbook 100 (1990), 110-111.

³⁹ Ibid., 109.

⁴⁰ See note 26. As the Ad Hoc Committee on Homosexuality and the Rabbinate notes, "the specific origin of sexual identity and its etiology are still imperfectly understood"; CCAR Yearbook 100 (1990), 109. In other words, we do not know with scientific certainty just what sexual orientation is or how a person develops one kind of sexual orientation as opposed to another. While we as individuals may believe that we are in possession of a clear understanding of the nature of sexual orientation, we as a Committee are unable to advance beyond the uncertainty expressed by the Ad Hoc Committee.

⁴¹ Similarly, while we must show love and concern for the intermarried couples in our midst, such a duty in no way requires that we as rabbis offer religious sanction to their unions. This analogy does not, of course, perfectly mirror the situation of homosexual couples. The differences and similarities will be discussed in Part III, below. It is cited here merely to demonstrate that compassion for human persons does not automatically entail that we offer ritual sanction their particular sexual relationships.

⁴² R. Herbert Bronstein, in Rabbi Simeon J. Maslin, ed., Gates of Mitzvah (New York: CCAR, 1979), 123-124.

⁴³ We know that "Reform Jewish marriage" is often identified in the public mind as a purely "spiritual" endeavor, the legal aspects of the marital union being left to the control of the state. We regard this as an unfortunate historical error. In Jewish religious thought, marriage is a legal as well as a spiritual institution, and to understand marriage as a category of Jewish life requires that we take both its aspects seriously. That the legal implications of marriage are determined in practice by the civil law in most Western countries does not alter this elemental fact of history and religion.

⁴⁴ M. Kiddushin 3:12. The halakhah recognizes the validity of a marriage between two Gentiles, in that the "children of Noah" are forbidden the arayot, the proscribed sexual practices of Leviticus 18, which include adultery. See also Yad, Ishut 1:1, where Rambam describes the law of marriage "before the Torah was given" and Magid Mishneh ad loc. However, the word kiddushin never designates non-Jewish marriage, and Jewish law is indifferent as to the ritual or ceremony by which Gentile traditions effect the marriage bond.

⁴⁵ M. Kiddushin 3:12.

⁴⁶ M. Kiddushin 1:1 lists three methods of effecting the kinyan: kesef (money); shetar (written document); or bi'ah (sexual intercourse). While any of these methods is halakhicly valid, the use of kesef is the universal custom; Yad, Ishut 3:21. Out of moral concern, the early Babylonian amoraim forbade the use of bi'ah as a method of contracting marriage; BT Kiddushin 12b.

⁴⁷ BT Kiddushin 65b-66a; Yad, Ishut 4:6.

⁴⁸ BT Kiddushin 5b-6a; Yad, Ishut 3:1. The wife is the passive party here; she neither gives the money nor recites the formula. If, however, he gives the money and she recites the formula, some authorities suggest the marriage may be valid. See SA EHE 27:8.

⁴⁹ Marriage, unlike any other kinyan, requires the clear consent of the "acquired" party, the wife; BT Kiddushin 2b and Bava Batra 48b; Yad, Ishut 4:1.

⁵⁰ BT Kiddushin 10a; Yad, Ishut 10:1.

⁵¹ BT Kiddushin 2b. Tosafot, s.v. de'asar, notes that the use of hekdesh language in a secular transaction is unique to marriage; thus, perhaps, the sanctity of marriage lies at least in part in its essential un-likeness to every other kind of legal act.

⁵² M. Kiddushin 1:1 and Rashi, s.v. vekonah et atzmah.

⁵³ M. Kiddushin 3:12.

⁵⁴ Deut. 25; Yad, Yibum Vechalitzah 1:1.

⁵⁵ BT Ketubot 7b. See Yad, Ishut 3:24, where the conclusion (chatimah) of the benediction is simply: ...mekadesh yisrael, "Who sanctifies Israel."

⁵⁶ And see Rashi, BT Ketubot 7b, s.v. ve'asar lanu: even the husband is forbidden to his betrothed wife, under rabbinic if not Toraitic law, until the time of chupah (nisu'in).

⁵⁷ Sifra to Lev. 19:2, and see Rashi and Ramban ad loc.

⁵⁸ To refer again to the above citation from Gates of Mitzvah: "in Kiddushin the husband and wife set each other apart."

⁵⁹ See the list of "Prohibited Marriages", both de'oraita and derabanan, in Rabbi's Manual, 235-236.

⁶⁰ While the Reform movement in the United States accepts the validity of civil divorce (Rabbi's Manual, 244-246), the preponderant majority of our colleagues elsewhere require a get before remarriage. In addition, the American movement has explained its acceptance of civil divorce in traditional halakhic terminology: since divorce in Jewish law is regarded as a matter of monetary law (itself a controversial assumption), a divorce decree emanating from a civil court is valid at Jewish law under the doctrine of dina demalkhuta dina. In this sense, we continue to practice "Jewish divorce," since the secular courts act as our designated agents. On the history of Reform and the divorce question see ARR, no. 162, Solomon B. Freehof, Reform Jewish Practice I, 99-110, and Moses Mielziner, The Jewish Law of Marriage and Divorce in Ancient and Modern Times. Cincinnati: Bloch, 1884, 130-137. Moreover, the introduction of the Ritual of Release (Rabbi's Manual, 97-104) suggests that the movement is beginning to reconsider the necessity of some Jewish ritual procedure to mark the dissolution of a marriage.

⁶¹ It is true, but irrelevant, that the text of this berakhah in our Rabbi's Manual, 52-53, omits the prohibitions of arayot and arusot. Would anyone seriously argue that incest and adultery are thereby permitted? The omission may reflect the aesthetic concerns of the Manual's liturgists, but its amended text does not describe our understanding of marriage as a legal institution.

⁶² We use the terms ervah and arayot here in their traditional Judaic context: they refer to those sexual unions which the Torah so classifies, and no Jewish marriage can take place between the two individuals involved. Whether we as individuals or as a group feel that any one of these unions is no longer "sinful" is a separate question and quite irrelevant to the point we are making here.

⁶³ Some suggest that we institute divorce procedures for gay and lesbian couples and that we prohibit sexual infidelity among them as though these were adultery and incest. This would have the effect of making homosexual unions fully parallel to traditional marriage. The problem, of course, is that these boundaries and requirements would be entirely our own creation; they are not what the Torah considers "adultery", "incest", and "divorce." It is the Torah's definition of arayot--and not our own--which is central to the traditional conception of kiddushin.

⁶⁴ The operative concept here is ein kiddushin tofsin: "Jewish marriage is impossible" between these two persons"; see M. Kiddushin 3:12.

⁶⁵ See above, at note 32.

⁶⁶ Yad, Ishut 1:7; Isserles, EHE 1:3, and Resp. Rivash (R. Yitzchak b. Sheshet, 14th-cent. Spain/North Africa), no. 15: while the ideal (lekhatchilah) standard is to require a man to marry a fertile woman, it is "no longer customary for the courts to exercise coercion over this."

⁶⁷ In a similar way, we do not offer religious sanction to the relationship of an unmarried couple. They can choose to accept the sanction we do offer: Jewish marriage. If they reject that option, it is not our responsibility to make a "better offer."