Some Taanit Esther Thoughts on Systemic Solutions for the Agunah Issue

by Rabbi Aryeh Klapper

There is a longstanding controversy as to whether the modern plague of get-refusal must be solved entirely within the halakhic system, or whether external forces should be brought to bear, even if those forces impose change on halakhah.  I want to offer a mediating position.

In America, where halakhah has no secular authority, a woman can be an agunah only if she chooses to remain part of the halakhic system.  Therefore, any solution must feel authentic to her and respect the sincerity and depths of her beliefs, for which she has sacrificed so much.  Solutions externally imposed on halakhah will likely not in practice free her, since she will be unwilling to remarry, and the men she wishes to marry would not see her as free.  This does not mean that all such attempts will fail, but there should be a bias against secularly constraining the discretion of halakhic authorities.  If for no other reason, we should fear the consequences generally for freedom of religion.

In Israel, by contrast, halakhah has agreed to become part of the state, and as a result has jurisdiction over many women who would never choose to be subject to halakhic authority.  Israeli agunot do not need authentic solutions; they need practical solutions.  The price of halakhah becoming part of the state is that the state may force its religious bureaucrats to choose particular halakhic options or accommodate particular halakhic policies, or else resign.  In particular, the state can legitimately force its religious court judges to ensure that no women are trapped by a system whose premises they do not believe.

More sharply – the use of get-refusal as a bargaining tool in divorce cases should be stamped out in all jurisdictions.  But in America this is the responsibility of the halakhic community; in Israel this is the responsibility of the government.

It is therefore deeply ironic that while New York State and Canada have enacted creative and somewhat effective get laws, in Israel the only legislative response has been to give rabbinic courts the power to coerce more effectively.   Such powers are welcome, but they are desperate last measures generally taken after extended extortionary or spiteful get-refusal.  I believe more creative and more effective measures are necessary and possible.

An ever-larger percentage of the American halakhic community is meeting its responsibility to end get-refusal by voluntarily signing the RCA halakhic prenuptial agreements, and I was pleased to read that Tzohar and the Israeli Bar Association have jointly released an apparently parallel agreement in Israel.  For now, I very much hope that it is effective and gains broad voluntary use.  But I believe that a version of this agreement can and should be mandated legislatively.

It should be clear that if the state seeks to impose halakhic choices that the dayyanim cannot in good conscience endorse, they must resign, and if the state goes ahead anyway, it will simply be creating its own form of civil marriage and divorce.

But I think there is an opportunity for more here – an opportunity for the entire Israeli community, and perhaps as well the international halakhic community, to think together about how authentic halakhah can reasonably and responsibly accept secular authority in a democratic Jewish state most of whose Jewish citizens do not feel bound by halakhah.

Nothing excuses the many years that get-refusal, get-extortion, and the implicit threat of get-extortion have corrupted the halakhic divorce process.  But if we can generate that sort of thinking together, perhaps there is hope that the agunot will not have suffered in vain.

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