If they were formally married, their joint Social Security would be reduced. Freehof raises the question:
Is the Rabbi violating the state law by officiating for a couple who do not have a marriage licence? I have received various legal opinions on this matter. The majority opinion seems to be that it is a violation of the law so to officiate.... Since this marriage ceremony is being conducted without a license for the purpose of evading or contravening the just and legal regulations governing Social Security, such an arrangement must be deemed illegal, even from the Jewish point of views.... The marriage in question may, however, be an illegal action by the Rabbi who officiates, if the law of the state requires recording the information of every marriage conducted.®
A valid marriage is one of an unmarried couple of a Jewish man and woman for whose union there is no prohibition in Jewish law. Gays and lesbians are not the only ones unable to contract a valid Jewish marriage. A mixed couple of a Jew and Gentile may not have a Jewish wedding. An adulterous Jewish couple, where one member is still married to another person, may not be joined in matrimony. Furthermore, incestuous couples may not be married. In all these cases the explanation is ein ha-kiddushin tofsin (There is no marriage—it does not take hold). The wedding ceremony has no significance and the marriage is null and void. When there is a valid marriage, there exists havaya between the couple. This refers to a legal and spiritual binding between the pair. This is the legal status of marriage, which is broken only by divorce or death.
Many lesbians and gays prefer not to have kiddushin because of the heterosexual character of the ceremony. A few scholars tend to denigrate this ancient rite. Eugene Mihaly sharply criticized a statement of a group of rabbis who equated kiddushin with sacred matrimony. In his view,“kiddushin is clearly a rabbinic metaphor and refers to a man’s acquisition of a woman through an act of appropriation... We must not translate kiddushin as‘sacred Jew ish marriage.””* He goes on to elucidate:“Since the kiddushin