(2013/5774)
Rav Asher Weiss has emerged as one of the great Halachic authorities of our time. His writings demonstrate a most impressive breadth of knowledge in addition to “out of the box” yet “down to earth” innovative thinking that has won him acclaim throughout all sectors of the observant Jewish community. Recently, Rav Weiss released his first work of responsa entitled Teshuvot Minchat Asher, which demonstrates Rav Weiss’ standing as a world-class Poseik.
In this essay, we shall present a significant contribution made by Rav Weiss to an issue that unfortunately arises all too often – the Halachic validity of wedding ceremonies conducted by non-Orthodox rabbis. Rav Weiss (in responsum number 72) deals with a situation in which a woman married in a Conservative ceremony and received her Get under the auspices of a Conservative Get administrator (which, experience teaches, cannot be relied upon).
The woman subsequently remarried, became observant, and had five children with her second husband. Rav Weiss discusses whether or not there is a concern that the children are Mamzeirim (illegitimate and therefore forbidden to marry almost all Jews, as a result of the woman remarrying without receiving a valid Get from her first husband). Rav Weiss concludes that the children are legitimate since her first marriage was not conducted in accordance with Halachah (and thus in reality did not require a Get in the first place). He advances two novel reasons to invalidate the non-Orthodox wedding ceremony which are most worthy of attention. In this essay, we will focus on what specifically invalidates most non-Orthodox wedding ceremonies aside from the well known issue of the absence of valid witnesses (only observant and Orthodox adult males are considered valid witnesses according to Halachah; see Shulchan Aruch Choshen Mishpat Perek 34).
The Double Ring Ceremony
Rav Moshe Feinstein wrote several responsa about the Halachic status of Reform wedding ceremonies (Rav Weiss writes that there is no substantial difference between Reform and Conservative – which by now, 2013, is almost certainly correct; the merger of some Reform and Conservative congregations serves as ample evidence), including a 1970 responsum in which he examines several of the problematic aspects of such weddings (Teshuvot Igrot Moshe, Even HaEzer 3:25). In addition to the lack of valid witnesses, which is addressed in Gray Matter 1:83-90, Rav Moshe argues that Reform marriages also lack Halachic validity for other reasons:
They do not perform an act of Kidushin. Rather he merely responds “yes” to the Rabbi's question, "Do you wish to take this woman as your wife?”... These are not words of Kidushin [such as the required phrase, “Behold you are betrothed to me with this ring”]; rather, these words express consent to joining in marriage. [The man and woman] subsequently exchange rings as an expression of their marriage, which they believe to have been contracted already by answering “yes.”
In the above responsum, Rav Moshe suggests that double ring ceremonies raise concern about how the couple understands the wedding procedures. “Even though he gives her a ring,” he writes, “she also gives him a ring, which demonstrates that his giving her a ring was merely a present in honor of their marriage, and there is no act of Kidushin.”
Dayan Aryeh Grossnass (Teshuvot Lev Aryeh 31) presents a similar approach. It should be noted, however, that there are many variations of the double ring ceremony, and they might have different Halachic standings.
Disagreement with Rav Feinstein
Many great Rabbis disagree with this assertion of Rav Moshe. Both Rav Zalman Nechemia Goldberg and Rav Hershel Schachter expressed their opinions to this author that once the groom gives the bride a ring, they are married. Whatever happens after the delivery of the ring is irrelevant in their view.[1]
The Gemara (Nedarim 87a) seems to support Rav Goldberg and Rav Schachter's view. The Gemara states that one may retract even a formal statement (such as testimony in Beit Din) as long as the retraction occurs immediately after the statement (Toch Kedei Dibur). However, this rule does not apply to four areas of Halachah - cursing our Creator (God forbid), idolatry, Kidushin, and Gittin. Accordingly, once Kidushin have taken effect, one cannot retract them (except with a Get or death). Thus, once the groom gives the bride a ring, the bride's giving the groom a second ring should be irrelevant.
Defense of Rav Feinstein's Ruling
Nonetheless, one may suggest a defense of Rav Moshe's ruling. Rav Chaim Soloveitchik (commentary to Rambam's Hilchot Chalitzah 4:16) explains that a couple does not become married merely by the ritual performance of Kidushin. Rather, Da'at, intention, is necessary to create the marriage. Accordingly, the couple must have Da’at that giving the ring creates the Kidushin; without intention, the Kidushin cannot take effect. Since the statement of vows and the double ring ceremony confuse the couple's Da’at, the marriage is not effective.
Rav Asher Weiss bolsters this point with the following insight:
The entire concept of Kidushin according to the laws of our holy Torah is that a man acquires his wife. Even though the Rishonim clarify that this is not a monetary acquisition and that a husband does not own his wife (Rav David Fohrman offers a magnificent explanation of this point in his Dvar Torah on Parashat BeReishit that appears on the website of the Aleph Beta Academy), nonetheless the Torah describes marriage as “Ki Yikach Ish Ishah” (when a man takes a woman), as an act of acquisition… This concept is entirely antithetical to the contemporary secular concept of marriage as an egalitarian and mutual commitment... a [non-Orthodox couple] express this intention by exchanging rings which gives concrete expression to their intention not to be married according to the Torah’s definition of Kidushin.[2]
Moreover, in videos of non-Orthodox weddings that this author has seen (in efforts to solve problems of Igun and Mamzeirut), the Rabbi often declares at the conclusion of the Chupah, “I now pronounce you man and wife in the eyes of man and in the eyes of God.” Women who participated in these ceremonies have told this author that they thought they were married according to Jewish tradition when the rabbis made this declaration. Rav Weiss notes this stands in stark contradiction to the proper Halachic approach, which dictates that the Rabbi merely supervises the ceremony and makes sure it is done correctly, while the Chatan giving the ring to the Kalah creates the Kidushin.
Rama (E.H. 42:1) writes, “Regarding Kidushin, we do not use assumptions or [circumstantial] proofs to establish that a [man or] woman did not intend to be married.” Thus, it seems that we cannot assume that the couple did not intend to be married at the right time in the ceremony. Nevertheless, there is still room to invalidate most non-Orthodox weddings. This is because the basis for Rama’s ruling (as explained by Rav Yechezkel Landau, Teshuvot Noda BiYhudah 1:59, cited by Pitchei Teshuvah, E.H. 42:3) is that unarticulated thoughts have no Halachic significance (a concept known as “Devarim SheBeLeiv Einam Devarim”). However, in the case of the double ring ceremony, the circumstances clearly indicate a lack of Da'at. The groom and bride demonstrate with their actions that they do not want the groom's delivery of the ring to effect Kidushin. In fact, Tosafot (Kidushin 49b s.v. Devarim) write that when the individual's intentions are obvious, they do indeed have Halachic standing. The Chazon Ish (E.H. 52:3) also writes that even Rama would invalidate a marriage if it is blatantly obvious that the couple did not intend to marry Halachically (see Techumin 18:92-99).
Indeed, it is common in observant communities for a man to present an engagement ring to his fiancée, yet we do not believe that the couple is thereby married (see Rama, E.H. 45:2). This is because they clearly do not intend to create Kidushin with the engagement ring.
Limitations of Rav Feinstein's Ruling
Rav Moshe’s ruling probably does not apply to every case of a double ring ceremony. This author saw on video a traditional Conservative Rabbi (a category that is rapidly disappearing) conduct a double ring ceremony. The rabbi told the groom to give the ring as an expression of marriage and subsequently told the bride to give him a ring as a pledge of her love. He seemed to be attempting to distinguish between the groom's delivery of the ring (which creates Kidushin) and the bride's handing the groom a ring.
Although Rav Moshe strongly disapproves of such a ceremony (Teshuvot Igrot Moshe, E.H. 3:18), he probably would believe that this form of a double ring ceremony does not invalidate the wedding. In this case, there might lack concrete evidence that the couple does not wish to create Kidushin with the delivery of the ring from the groom to the bride.
Ownership of the Ring
Rav Moshe (Teshuvot Igrot Moshe, E.H. 1:76) further notes that the groom often does not own the ring at Reform weddings. If the ring belonged to the bride (or anyone else) before the ceremony, the Kidushin are not valid.
Rav Zalman Nechemia Goldberg expressed his disagreement with Rav Moshe to this author. He referred to a ruling of the Rosh (Kidushin 1:20, codified in Shulchan Aruch, E.H. 28:19) that if one borrows a ring and informs the lender that he wishes to use it for Kidushin, the Kidushin are valid. Although the ring was borrowed, the lender intends to give the ring as a present (and not merely a loan) to the groom so that the Kidushin can take effect. Similarly, the groom intends to acquire the ring in order to properly implement the Kidushin.
However, one may respond that the Rosh's ruling applies only to those who know that the wedding ring must belong to the groom. Rav Moshe states this explicitly in Teshuvot Igrot Moshe (E.H. 1:90).
In fact, the Mishnah Berurah (649:15) seems to support Rav Moshe's contention. It rules that one who uses a borrowed Lulav does not fulfill the Mitzvah on the first day of Sukkot (the first two days in the Diaspora, according to some Rishonim), unless the lender knows that the borrower must Halachically acquire it. Otherwise, we assume that the lender gave the Lulav as a loan and not as a present.
Conclusion
We must make every effort to assure that divorcing couples who were married in a Reform or Conservative Jewish ceremony receive a valid Get. Only when a spouse refuses to participate in a Get ceremony, or when possible Mamzeirut exists, do some rabbinical courts consider relying on Rav Moshe Feinstein and the authorities who agree with him to invalidate a non-Orthodox wedding ceremony. Rav Asher Weiss has further bolstered Rav Moshe’s ruling which has saved the spiritual lives of tens of thousands of Jews. Indeed, in the specific case addressed by Rav Weiss, no less of an authority than Rav Yosef Shalom Eliashiv himself agreed with Rav Weiss’ ruling that the five children born to the woman from her second husband are not considered Mamzeirim.
[1] This does not mean that Rav Goldberg and Rav Schachter endorse a double ring ceremony. Rather, they argue that it does not invalidate a wedding ceremony.
[2] This, of course, does not apply to non-Orthodox couples who marry in an Orthodox ceremony where rings are not exchanged. Rav Weiss’ approach underscores the importance of resolutely maintaining the integrity of the Orthodox wedding ceremony without giving expression to egalitarian values which might impinge on the Kashrut of the Kidushin.