Talmud Commentary: Bavli 5/1. bBetsah 36b (mBetsah 5:2)

@General observations

The primary source on the question of marriage on Shabbat is mBets 5:2 (see the commentary on Mishnah 6. mBetsah 5:2). The discussion in the gemara on it provides reasons for the various rabbinic prohibitions cited in the Mishnah. The talmudic discussion concludes that the rabbinic prohibition of betrothal or the performance of halitsah or levirate marriage are all preventive measures. These prohibitions are, in other words, rabbinic gezerot (decrees) to protect, according to the rabbis, the more important injunction against writing on Shabbat. Betrothal was prohibited because a document that could affect the marriage might be written (giving the bride a marriage writ is namely one way of affecting a marriage). For the halitsah procedure a document might be written to record that it took place, and in the case of a levirate marriage, it is prohibited as it might lead to writing a marriage contract (ketubbah).

The rabbinic injunction “not to betroth a wife” on Shabbat prompts the question in the gemara: Is he not discharging a religious obligation (as marriage was considered a mitsvah)? The reply in the gemara is that the Mishnah deals with a specific case where the man already has a wife and children and, therefore, has already fulfilled the obligation to “be fruitful and multiply” (Gen 9:7). According to the rabbis, a person must attempt to have at least two children – two sons according to Beth Shammai, a son and a daughter according to Beth Hillel (mYev 6:6). If the person has already fulfilled his obligation and has two children, marrying another wife in order to produce additional children is termed a non-mandatory mitsvah.

@Feminist observations

The above-mentioned prohibitions are meant to apply to men only. At the center of the debate about whether a man is allowed to betroth on a festival day is, first of all, the question of whether he already has children. The argument that, if he does, he may not betroth on a festival day, is considered insufficient by the gemara, because marriage in rabbinic Judaism is not first and foremost instituted for the purpose of having children. Also, epigraphical and papyrological evidence indicates that relatively small families, especially in Egypt (of which we know more), were the norm in antiquity. In the Book of Tobit, for instance, only one child per family is reported and in burial inscriptions from Leontopolis only one woman is mentioned as having more than one child.[1] According to our gemara, the reason for the prohibition against marrying on Shabbat and festival days is the avoidance of writing and commerce. As we saw above (Mishnah 6. mBetsah 5:2), the Tosefta parallel to this mishnah referred to both women and men by alluding to a female activity (weaving) and a male activity (writing). In contrast, the Mishnah here mentions only the male activity of writing. The gemara reinforces the Mishnah’s male orientation by stating that all the prohibitions mentioned in the mishnaic list have only one purpose: the avoidance of writing and commerce. Thus the exclusion of women, initiated by the Mishnah, is firmly established by the gemara. In contrast to the Bavli, the Yerushalmi argues for another reason why marriage was prohibited on Shabbat; it relies hereby on a mishnah from Tractate Yoma, which states:

When discussing this mishnah, the Yerushalmi raises the question: How can another woman be made ready to marry him since it would involve an act of acquisition on a festival day? (yYom 1:1, 38d) The Yerushalmi’s answer is that rabbinic prohibitions (shevut) have no effect in the Temple, and since the prohibi tion against marrying on Shabbat is only a rabbinic injunction, it does not apply to the high-priest. The implication of the Yerushalmi question-and-answer sequence for us, however, is that the rabbinic prohibition against betrothal on Shabbat is not just, as the Bavli states, a preventive measure against writing, but rather it emphasizes the significance of marriage as an act of acquisition.[1]

The definition of marriage as an act of acquiring a woman by a man corresponds to the patriarchal principle which pervades rabbinic literature: Women are seen as the property of men. For the rabbis, men are the center of action, while women are depicted contrastingly as passive. The Bavli commentators certainly knew the Tosefta well (if they did not actually base their commentary on it rather than on the Mishnah; see the Introduction to this volume). Assuming that the Bavli was aware of the reference to women’s activity in tYT 4:4, the restriction of the halakhah here to men only has to be considered an intentional removal of women.