Should Rabbis Perform Intermarriages?

I wrote recently about my involvement in getting an organization together for patrilineal Jews, www.emunahavot.net. So far, I have not written anything about intermarriage in a wider sense, and the organization will not really tackle every issue pertaining to intermarriage or the lives of adult children of intermarriage. I think there are enough groups out there in the Jewish community doing advocacy on this issue.

That said, I feel I should make my feelings about the issue known somewhere. And since this is my blog, after all, why not here?

Traditional Jewish law forbids intermarriage and does not allow rabbis to officiate at wedding ceremonies at which a Jew marries a non-Jew. The intermarriage taboo has had a long evolution and is not necessarily consistent with the Written Torah, which provides examples of intermarriage even (possibly) by Moses himself. The prohibition on rabbinic officiation at intermarriages bases itself on an understanding of the contractual nature of Jewish marriage.

In a Jewish wedding, couples sign a document called the ketubah--a marriage contract. This evolved out of an earlier practice of the groom giving the bride's family money in exchange for the bride; the Torah makes explicit reference to the "bride price of virgins". Over time, however, the ketubah came to substitute for tihs as bride prices became exorbitant and beyond the means of most young men to produce at the time of marriage. The ketubah, as it evolved in the rabbinic era, functioned as a sort of life insurance policy for the bride. It stipulated that, in the event of divorce or death, the groom had put aside a certain amount of money to assist the bride. But the groom did not have to pay out all of this money at the time of marriage.

The ketubah operates "according to the laws and customs of Moses and Israel." The traditional understanding of this, with respect to intermarriage, is that a non-Jew is not bound by the laws and customs of Moses and Israel, and so lacks the capacity to contract Jewish marriage. Any marriage contract between a Jew and a non-Jew would be ipso facto meaningless.

I used to buy this argument. On its face, it seems straightforward. But the more I have thought about it recently, the more I have come to question this logic. I think this way of thinking ignores the nature of how contracts actually function in most legal systems.

To enter into a contract, a person often essentially agrees to be bound by the courts and/or arbiters of a particular jurisdiction. For instance, prior to coming to Taiwan, I was not in any way bound by Taiwanese law. But I was able to sign a contract enforceable under Taiwanese law. And indeed, it is common for business contracts to contain clauses specifying which law or jurisdiction the contract is under. Sometimes, a court will even have to enforce laws of a foreign country with respect to a contract--an American court may have to interpet a contract in accordance with French law, if the contract specifies that French law governs it.

I would argue that a non-Jew who wishes to marry a Jew can contract Jewish marriage--that he or she in essence places himself under the jurisdiction of Jewish courts for this purpose. The marriage is still in accordance with the laws and customs of Moses and Israel, and is still meaningful, Jewishly.

This leads to a second question: in view of the demographic problems of American Jewry, is it wise for rabbis to perform intermarriages? Some feel that rabbis should perform intermarriages--that refusal to perform intermarriages rejects a couple in a way that will ensure that they do not affiliate with Jewish institutions. Others argue that officiation has no effect over a couple's involvement in Judaism.

I think both of these positions are lacking in nuance. Surely, some intermarrying couples seek out a rabbi solely to make the Jewish partner's parents happy, and have no intention of doing anything Jewish after the wedding. But I don't feel rabbis have to perform either all intermarriages or none. A rabbi can refuse to perform an intermarriage if he is not persuaded of the couple's Jewish commitment.

The best approach, in my opinion, is something like what the Catholic Church used to do when a Catholic sought to marry a non-Catholic. The church would require the couple to undergo some teaching in the Catholic faith, with an emphasis on helping the couple understand the Catholic view of marriage. If, after that, the non-Catholic partner was willing to sign a document agreeing to raise the children as Catholic, the marriage could be performed. The Church also explicitly forbade co-offication with non-Catholic clergy, a policy I would also favor for the Jewish community.

Just my two cents on the topic.