I do not understand. Please explain.
Kiddushin is predicated on the laws of acquisition as the Rabbis set them forth. In those halachot, there are ways in which women can acquire movable property, land, and certain contractual rights. But they cannot acquire other people in the way a man acquires a woman as a wife or a concubine. The halachic system simply is not constructed with a way for them to do that. It is a kind of acquiring that there is literally no legal way for them to effect. So a woman can neither acquire a man in marriage nor another woman.
A man does have the power to make such an acquisition, but he can only effectively acquire a woman. He cannot acquire another man, because the law does not provide a way for men to be acquired in such a way. A man can acquire another man as a slave or indentured servant, but not as a husband or male concubine (if there were such a thing). There literally exists no mechanism for that kind of acquisition of one man by another in the halachah, and in fact it is specified that attempts to use legal formulae of acquisition on another man have no legal effect.
In order to change these things, and make mechanisms for kiddushin to work with men acquiring other men, women acquiring other women, or for that matter, women becoming the "dominant" partner in the transaction and acquiring men, we would have to re-draw the way that kiddushin marriage works, past its basic foundations, into its roots in the halachot of acquisition, and re-draw them. In other words, we would have to re-create a major section of halachah from the level of Mishnah up.
We don't have the authority to do that. We don't have anywhere close to the authority to do that. It would require the authority of a full Sanhedrin, with ordination of the level not seen since the time of the Tanna'im.
Much as I might believe that gay marriage is right, and Jewish people of the same sex should be able to marry one another, I also believe in the centrality and importance of law, and the functioning of halachah as the framework of Judaism. There is quite literally no way I can, as a halachist, reconcile kiddushin and same-sex marriage-- despite my feelings about the subject.
However, the same issues that make kiddushin non-viable as an option for same sex marriage also make it, IMO, irretrievably problematic as a way of constructing heterosexual marriages also. I really recommend reading Rachel Adler on this-- despite my occasional disagreements with her, I think nobody's done a finer critical analysis of this set of issues than she has. It's absolutely brilliant.
She recognizes-- quite rightly-- that despite the legitimate problems with kiddushin, there is no available halachic solution in terms of altering kiddushin marriage while keeping it halachically valid. Therefore, her solution is ingenious: she sidesteps the whole morass. Rather than getting bogged down in a halachic battle that is unwinnable, she instead creates an entirely new model of marriage, grounded in halachah, but something never done or seen before. As kiddushin is grounded in the halachot governing the transaction of acquisition, her marriage, Brit Ahuvim, is grounded in the halachot governing the formation of partnerships.
The result is a distinctively Jewish marriage ceremony and contract which not only is egalitarian, able to be used by both hetero and gay couples, and is free of troublesome imbalances of power and devaluation, but which is dissolvable at the will of
either party, thus also solving the
agunah problem (in kiddushin marriages, just as the man acquires the woman, even so only the man has the power to initiate divorce proceedings).
The original Brit Ahuvim, as set forth in Adler's book, left some halachic problems unaddressed. The version I use is the one modified by her son, Rabbi Amitai Adler, a Conservative rabbi, which solves most of the halachic issues unaddressed previously-- at least, solves to Conservative standards. I'm sure none of it would pass muster in Orthodoxy.
