Journal Watch
Wed, 06/16/2010
Staff Writer

 Keitzad m’rakdim lifnei ha-kallah? “How does one dance before the bride?”

This question, seemingly simple, is in fact a classic formulation of the array of normative procedures, customs and traditions surrounding the marriage ceremony and its attendant activities. Journal Watcher, in a seemingly counterintuitive way, turns first to Yemen for a look at something old, something new.

But Yemen, cut off early from the rest of the Jewish polity, indeed did preserve a number of marriage customs directly based on rulings of the Talmud and of Maimonides (considered authoritative for Yemenite Jews) that have been long abandoned by other Jewish communities, Sephardic or Ashkenazi. Bar Ilan’s Aharon Gaimani opens our eyes to “Marriage and Divorce Customs in Yemen and Eretz Israel” (Nashim, 2006) and reviews the norms surrounding the marriage of minor girls; levirate marriage (yibum), still practiced among the Yemenites; divorce procedures; and polygamy. Gaimani analyzes not only the venerable halachic traditions preserved by the Yemenite community, but also economic and social factors that influenced these practices. Thus, underage girls were often betrothed in order to ensure them a good match; or, if they were orphans, to save them from forced conversion to Islam.

Similarly, with polygamy—less prevalent in Yemen than is commonly thought—social and economic factors were often determinative. In the Yemeni countryside, women were a source of labor that could be used to expand one’s economic base; in the city, multiple wives constituted a social burden rather than an economic boon.

With the immigration of Yemenites to Israel, most of these customs disappeared. Different social conditions, ordinances of the Chief Rabbinate and the acculturation of Yemenite Jews in Israel brought far-reaching changes whose effect transcended the former marriage customs, and they informed a change in the status of Yemenite women.

Cardozo Law School’s Daniel A. Crane explores the public affairs aspects of marriage in his thought-provoking “A ‘Judeo-Christian’ Argument for Privatizing Marriage” (Cardozo Law Review, 2006). Crane parses the seemingly contradictory grammar of same-sex marriage, in which opponents propose to nationalize the definition of marriage through a constitutional amendment that would define marriage as the union of one man and one woman. But Crane notes the curious fact that this push to legalize or nationalize the definition comes from precisely those religious communities—Christianity and normative Judaism—whose religious traditions are opposed to state intervention in marriage.

As Journal Watcher scratches his head on this one (including wondering about the “Judeo-Christian” tradition which, popularized decades ago in Will Herberg’s “Catholic-Protestant-Jew,” has been called an invention designed to broaden political support for the fundamentalist Christian agenda), Crane reminds us that “Jewish tradition regards Jewish marriage as the province of Jewish law—Halakha—and not of civil law. In neither the Jewish nor the Christian tradition is marriage understood as primarily the province of the state.” If this is the case, argues Crane, then the legitimacy of marriage derives not from the state but from the sanction of religious communities; and marriage is therefore the province of the religious community. “Empowering the state to define marriage uniformly not only profanes a holy institution but threatens the ultimate autonomy and authority of religious communities with respect to marriage.”

The ultimate irony, suggests Crane, is that the push for greater legal control by constitutional amendment of marriage—wrong-headed in any case, it seems—comes primarily from those constituencies that stand to lose most from this move. “In the long run, traditional religious conceptions will increasingly be seen as idiosyncratic and out of step with contemporary values.” What to do? Refocus on the church or synagogue as the viable hope for achieving marital norms rather than a dubious marriage amendment to advance a dubious “Judeo-Christian” vision of marriage.

Also on the public policy front, albeit looking back 200 years, is the regulation of Jewish marriage and divorce—by civil law, explored by Smith College’s Lois C. Dubin in “Jewish Women, Marriage Law, and Emancipation: A Civil Divorce in Late-Eighteenth-Century Trieste” (Jewish Social Studies, Winter 2007). Dubin cleverly weaves together history and public affairs in her article, which examines the impact on Jewish communities, and particularly on Jewish women, of the entry of modern states into the domain of marriage. The issue of state intervention became a serious one as the nation-state became a reality in the period following the Peace of Westphalia that ended decades of religious war in Europe. Dubin’s vehicle is the fascinating story of the marriage and divorce of Rachele Morschene of Trieste, who in 1796 became one of the first Jewish women to obtain a civil divorce in Christian Europe. Morschene successfully negotiated both the new civil marriage law of the Habsburg monarchy (the 1783–1791 Ehepatent) and halacha to become divorced both civilly and religiously.

Dubin skillfully demonstrates how the entry of the state into the business of marriage and divorce could facilitate a woman’s emancipation. Civil separation gave Morschene protection and a moral victory: she gained the right to live apart from her husband with her honor and reputation intact, a right not readily available through Jewish law as practiced in that time and place. Having said this, state action yet might not have been sufficient to sway her husband were he determined to deny her a religious divorce, a get; the Damoclean sword of agunah status hung over Morschene.

At bottom, the state’s entry into marriage and divorce gave Jewish women freedom to maneuver; but the state’s remedies could not resolve her problems, particularly if she and her community considered halacha binding—as they did and do—and deemed religious divorce necessary.

Straddling the public and private, Rachele Morschene’s story is a revealing chapter in the history of Jewish women, of marriage and divorce, and of Jewish emancipation. “Emancipation did not mean the full replacement of religious by civil law,” Dubin writes.

So, after all is said and done—marriage defined, weddings planned, betrothal and nuptial vows and blessings made, ketubah read and explicated, sheva brachot celebrated, and sadly, divorce sometimes initiated—keitzad m’rakdim? Do we dance or do we dance? 

Jerome A. Chanes is the author of “A Dark Side of History” (ADL) and editor of “A Portrait of the American Jewish Community” (Praeger).