The national trend toward legalizing same-sex marriage has posed a unique challenge to Modern Orthodox Judaism. Part of the allure of Modern Orthodoxy is its willing integration with the secular world and in legitimizing a wider range of religious lifestyles than their parochial counterparts. However, the religious proscriptions against homosexual activity must necessarily limit the extent of Modern Orthodoxy’s pluralism. While the topic of homosexuality in Orthodox Judaism has been discussed at length elsewhere, the frequent focus is on individuals struggling with their personal conflicting religious and sexual identities. In contrast, gay marriage is a public announcement and celebration of two people embracing a lifestyle forbidden by Jewish law.

Thus it is important to address the recent news from Washington DC where Rabbi Steve Greenberg recently officiated a same-sex marriage. In this ceremony, Rabbi Greenberg did not simply serve as a civil officiant, but performed what was clearly intended to be a modification of the traditional Jewish marriage ceremony:

Greenberg assisted Bock and Kaplan in creating a ceremonial text that reflected the uniqueness of the event while incorporating the traditional elements of a Jewish wedding. Those familiar with the latter would have noticed an alteration in many of the texts, including the changing of genders for several of the pronouns. “Harey at mekudeshet li,” or “Behold, you (female) are consecrated to me” thus became “Harey atah m’kudash li,” or “Behold, you (male) are consecrated to me.”

While the news article emphasizes Rabbi Greenberg’s credentials as holding an Orthodox ordination, the Orthodox world has repudiated the religious legitimization, let alone officiating, same-sex marriages. Even the recent Statement of Principles, an important template for integrating and including homosexuals in an Orthodox community, specifically excludes same-sex marriages:

11. Halakhic Judaism cannot give its blessing and imprimatur to Jewish religious same-sex commitment ceremonies and weddings, and halakhic values proscribe individuals and communities from encouraging practices that grant religious legitimacy to gay marriage and couplehood

Still, those accustomed to halakhic debates may contest this point. After all, the Bible only explicitly prohibits sexual relations between men. Marriage, on the other hand, may be construed as a ceremony of love or commitment, and does not necessarily imply that the couple would, in fact, engage in halakhicallyprohibited sexual activity.¹

To some, this argument may seem like halakhic hairsplitting to achieve a desired result, but the underlying assumption is crucial to the halakhic process. In order to assert that an action is prohibited in Jewish law, one must provide textual evidence from Biblical or Rabbinic sources to demonstrate how the action in question would be either Biblically or Rabbinically prohibited based on existing halakhic interpretation or legislation.

I submit that Jewish law does, in fact, prohibit same-sex marriage ceremonies, and does so explicitly.

When the Jewish people were still traveling in the desert, they were warned not to copy the practices, or more literally “statutes,” of either the Egyptians or Canaanites. Leviticus 18:3 states:

כְּמַעֲשֵׂה אֶרֶץ מִצְרַיִם אֲשֶׁר יְשַׁבְתֶּם בָּהּ לֹא תַעֲשׂוּ וּכְמַעֲשֵׂה אֶרֶץ כְּנַעַן אֲשֶׁר אֲנִי מֵבִיא אֶתְכֶם שָׁמָּה לֹא תַעֲשׂוּ וּבְחֻקֹּתֵיהֶם לֹא תֵלֵכוּ:

After the doings of the land of Egypt, wherein ye dwelt, shall ye not do; and after the doings of the land of Canaan, whither I bring you, shall ye not do; neither shall ye walk in their statutes

The chapter continues enumerating prohibited sexual relations including the prohibition regarding gay sex in 18:22. However the idiom “וּבְחֻקֹּתֵיהֶם לֹא תֵלֵכוּ” – following their statutes – is general prohibition, which unsurprisingly is addressed in rabbinic literature.

In the rabbinic text Sifra Achrei Mot 8:8 we find the following exposition:

לא אמרתי אלא בחוקים החקוקים להם ולאבותיהם ולאבות אבותיהם ומה היו עושים האיש נושא לאיש והאשה לאשה, האיש נושא אשה ובתה והאשה ניסת לשנים לכך נאמר ובחקותיהם לא תלכו.

I did not say this [prohibition] except for the statutes enacted by them, their fathers, and their father’s fathers. And what would they do? A man would marry a man, a woman [would marry] a woman, a man would marry a woman and her daughter, and a woman would marry two men. Therefore it says, “and in their statutes do not follow.”

This text of the Sifra is a halakhic midrash, which is to say legal exegesis with the effect of determining normative Jewish law.² According to this Rabbinic source, the specific actions prohibited by Lev. 18:3 include the men marrying men and women marrying women.

It is important to clarify that the word “נשא” or “marry” does not imply that the union has any halakhic validity. All marriages (נשואין) must be preceded by a formal declaration of an intent to marry called kiddushin (קדושין). Not only must this act of kiddushin be between a man and a woman, but the relations between these two individuals must not be prohibited by Jewish law, otherwise the act of kiddushin is meaningless (B. Yevamot 53a, Rambm Ishut 4:12).³ It is thus my understanding of Sifra Achrei Mot 9:8 that the prohibition does not refer to any halakhically binding marriage, but rather any equivalent or comparably ceremony and by extension any formal union would violate the prohibition of “וּבְחֻקֹּתֵיהֶם לֹא תֵלֵכוּ” – not following in their (i.e. the Egyptian or Canaanite) statutes.

This midrash is not contradicted in later rabbinic sources, and indeed it does not reappear except for inclusion in later midrashic compilations, though it does appear sporadically in later halakhic codes such as Rambam Issurei Biah 22:8 and Vilna Gaon in Biur HaGra EH 20:11.

I would argue that this omission is not indicative of a rejection of the midrashic law, but if anything, indicates that for various reasons the sages deemed it obvious, superfluous, and unnecessary to repeat or include. Consider that homosexuality was not a practical concern for the rabbinic sages. While they enacted the laws of yichud prohibiting seclusion of individuals who are ‘arayot (people with whom relations are forbidden), they intentionally made no such decree for two men on the grounds that Jewish men are not suspect of homosexuality (B. Kiddushin 82a). It is also conceivable that codifiers of halakhah considered the marriage to be an obvious extension from the prohibited relationship. In other words, they may not have sufficiently distinguished between commitment ceremonies and the forbidden sexual relationships implied therein. Not only would these ceremonies be considered an anomalous rarity, but they could easily be implicitly subscribed under the prohibitions of sexual activity.

As such, regardless of how Jewish communities accommodate the needs of gays in their respective communities, the formal recognition of a homosexual marriage – male or female – would in fact be condoning a halakhicaly prohibited union, regardless of the private behaviors of the individuals. It would therefore follow that Rabbis who are committed to halakha should therefore not officiate or participate in these ceremonies, nor should halakhic communities formally recognize the couple as such, as they would with any other union prohibited by Jewish law.

This is not to negate any of the other points of the aforementioned Statement of Principles, which I should note I personally signed. But it is important to remember that for shomrei Torah the boundaries of pluralism must always be defined by the arba amot of halakhah – the four cubits of Jewish Law.

Update: 6/20/2018
I realized there is an important point I neglected to address regarding the use of the verb “נושא” meaning “marriage” to refer to ritual or process of marriage independent of attaining the halakhic status. We find this distinction in B. Kiddushin 6b: אמר אביי המקדש במלוה אינה מקודשת – “Abaye says: With regard to one who betroths a woman with a loan, and he now says that she is betrothed to him by means of that loan, she is not betrothed.” In this case the word “המקדש” refers to the process of betrothal even though there is no halakhic effect of being betrothed. I believe the read holds true for the Sifra cited above.

1. This argument is particularly true for lesbian couples where the biblical prohibition and admonition would not apply.
2. Regarding the normativity of the Sifra, the Dorff / Nevins responsa (PDF) from the Conservative movement selectively cites Sifra when it suits their arguments, justifying lesbian activity (page 10), rejecting the definition of “approach” (page 7), and ignoring it entirely for same-sex marriage (page 29). For a full treatment of this phenomenon see my MA thesis “Conservative Judaism and Homosexuality: Understanding the New Debate” p. 35-36.
3. The primary distinction would be if the woman would need a formal divorce in order to remarry