Category Archives: Beit Din

Follow-up #3

Last week we discussed Tosafot Yebamot 47a’s presentation of Rabbeinu Tam’s apparent position that many people are presumptively Jewish, meaning that if they claim to be Jewish, halakhic authorities will believe them without requiring corroborating evidence.  According to a beraita on Yebamot 47a, the claim to be a convert is believed only with corroboration or if there is a prior presumption.  Rabbeinu Tam commented that this is true only if there is prior knowledge of Gentileness; someone coming literally out of nowhere and claiming to be a convert would be believed.

Rabbeinu Tam (or perhaps Tosafot on his behalf) cited as proof a story from Pesachim 3b, in which a Gentile was given a portion of a Passover sacrifice simply by showing up.  He addressed an implicit challenge to his proof: what if that story was not based on presumption, but rather on the probability that most people presenting themselves to eat the sacrifice are Jewish?  He responded that most people presenting themselves as Jewish are also Jewish, so Pesachim and Yebamot remain parallel.

However, this response muddies the waters – do we believe the claim to be Jewish because of a presumption, or rather on the basis of probability?  We explained last week that presumptions (chazakah), unlike probability claims (rov),  can exist even without an evidentiary basis,.

Tosafot cite the beraita on Yebamot 47b we looked at two weeks ago as a second proof for Rabbeinu Tam.

מעשה באחד שבא לפני רבי יהודה,

ואמר לו:

נתגיירתי ביני לבין עצמי.

א”ל רבי יהודה:

יש לך עדים?

אמר ליה: לאו.

יש לך בנים?

א”ל:

הן.

א”ל: נאמן אתה לפסול את עצמך, ואי אתה נאמן לפסול את בניך.

A case: Someone came before Rabbi Yehudah,

and said to him:

“I converted when I was alone”.

Rabbi Yehudah said to him:

“Do you have witnesses?”

He said: “No.”

“Do you have children?”

“Yes”.

He said to him:

“You are believed to disqualify yourself, but you are not believed to disqualify your children.”

At first glance this text seems to contradict rather than support Rabbeinu Tam: why don’t we presume the convert to be Jewish?  Tosafot, however, start the other way around: why do we presume the children to be Jewish, so that eliminating the father’s testimony leaves their identity legally solid?[1]

ועוד ראיה משמעתין,

דאמר ליה ר”י אי אתה נאמן לפסול את בניך,

There is another proof (for Rabbeinu Tam’s position) from our own sugya,

where R. Yehudah says to him “You are not believed to disqualify your children”,

Why isn’t the father presumed Jewish?  Tosafot answer that in fact he is, but a technical mechanism nonetheless prevents him from enjoying all the privileges of Jewish status.

 

ואיהו גופיה כשר, אלא דשוי נפשיה חתיכה דאיסורא,

אבל אם בא על בת כהן – לא פסלה,

כדפי’ לעיל.

And he himself is also valid, just that ‘he has made himself a slice of prohibition’,

but if he were to have relations with a daughter of a kohen[2], he does not disqualify her,

as I explained earlier.

The simplest explanation of this mechanism is that it functions in the same manner as an oath.

The upshot of Tosafot is that we presume the father to be Jewish even though he has told us that he is not by claiming to have been invalidly converted.  Here the basis for treating the father as Jewish cannot be probability – no one thinks that most people claiming not to be Jewish are actually Jewish.  Rather, the basis must be presumption.

The last section of Tosafot notes that a story on Yebamot 45a should not be seen as evidence for Rabbeinu Tam.  As background for this story, you need to know that the Talmud records three positions as to the status of matrilineals:

a) that they are mamzerim

b) that they are invalid to marry kohanim

c) that they are no different than Jews with two Jewish parents.

 

תלמוד בבלי מסכת יבמות דף מה עמוד א

ואף רב יהודה מורה בה להיתירא,

דכי אתא לקמיה דרב יהודה, א”ל: זיל איטמר, או נסיב בת מינך.

וכי אתא לקמיה דרבא, א”ל: או גלי, או נסיב בת מינך.

Rav Yehudah also ruled to permit (a matrilineal Jew to marry a Jew with two Jewish parents),

as when (a matrilineal Jew) came before Rav Yehudah, Rav Yehudah said to him: “Go hide, or else marry a woman like yourself (i.e. matrilineal)”,

and when he came before Rava, Rava said to him: “Either go into exile, or else marry a woman like yourself (i.e. matrilineal)”.

Prima facie, Rav Yehudah and Rava suggest that the matrilineal simply show up in a Jewish community elsewhere, where he will be presumed (in their opinion, correctly) to be a halakhically valid marriage partner for Jews born from two Jewish parents, even where he would be socially ineligible would his heritage be known[3].  This suggests that the new community will not investigate their claim to be Jewish.

Tosafot argue, however, that the new community might have investigated whether he was Jewish, but not have researched his family.  Once again, we are left to wonder how he could prove his Jewishness without revealing his parentage.  Bottom line, though, this explanation is offered only to reject using the beraita as a proof for Rabbeinu Tam; once Rabbeinu Tam has triumphed anyway, there is no reason to assume the new community checked at all whether he was Jewish.

ומההיא דלעיל (דף מה.) דא”ל זיל גלי אין ראיה,

דשמא לא היו בודקים אלא אם הוא ישראל אם לאו, אבל במשפחתו לא היו בודקין.

From that earlier (narrative” in which he says to him “Go into exile” there is no proof (for Rabbeinu Tam),

as perhaps they would only investigate whether he was Jewish, but they would not investigate his family.

 


[1] The text does not actually say that the children are considered Jewish, only that their father’s testimony does not determine their status, but Tosafot presumes that they are considered Jewish.

[2]I would emend based on parallels to “a woman whose halakhic status would change as the result of having sex with a Gentile”

[3] This is not the right place to discuss the ethics of hiding one’s background from potential spouses, the current social status of matrilineals in the Jewish community, or the relationship of this passage to the issue of mekach taut as a method of freeing agunot.

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Filed under Beit Din, Conversion, Jewish identity, Jewish Values, marriages, Summer Beit Midrash

Follow-up #2

The 2013 SBM Sh’eilah which you received two weeks ago focused on a woman whose Jewishness comes into question as the result of a conversation with her daughter.  It might reasonably be thought that if the mother cannot be declared Jewish, the same is automatically true of the daughter – but such is not the case. Last week we explained how it be halakhically possible to rule that a woman was not Jewish but and simultaneously that her daughter was Jewish, as follows:

If Robin (the mother) is disqualified on the basis of her own testimony, and Catherine (the daughter) would be considered Jewish if we disregard her mother’s testimony, we may well be able to treat Catherine as Jewish even if we treat her mother as not Jewish.

We then added:

In practice, what evidence could Catherine have for her Jewishness other than being Robin’s daughter?  This of course raises the question of how one establishes one’s Jewishness, and whether and under what circumstances there is a presumption of Jewishness.  This discussion as well relates to a dispute between Rabbi Yehudah and his colleagues, as well as a number of fascinating Talmudic narratives, and I look forward to sharing at least some of those with you next week.

Let us move on to that discussion.

On Yevamot 46b-47a the following fascinating but enigmatic beraita appears:

מי שבא ואמר גר אני, יכול נקבלנו?

ת”ל: אתך –

במוחזק לך.

בא ועדיו עמו, מנין?

ת”ל: וכי יגור אתך גר בארצכם.

אין לי אלא בארץ, בח”ל מנין?

תלמוד לומר. אתך

בכל מקום שאתך;

אם כן, מה ת”ל בארץ?

בארץ – צריך להביא ראיה, בח”ל – אין צריך להביא ראיה,

דברי ר’ יהודה;

וחכמים אומרים:

בין בארץ בין בחוצה לארץ – צריך להביא ראיה.

  1. One who comes and says “I am a ger=convert” – one might have thought we accept him –
  2. so Scripture teaches: “with you” –
  3. only if you already presume him to be.
  4. If he comes with his witnesses, from where do we know?
  5. Scripture teaches “If there should gar with you a ger . . . “.
  6. “. . . in your land” –
  7. So far I only know in the land – from where do I know (that this is also true) in the diaspora?
  8. Scripture teaches “with you” –
  9. wherever he is with you.
  10. If so, why does Scripture teach us by saying “in (the) [your] land”?
  11. In the land – he must bring evidence; in the Diaspora – he need not bring evidence,
  12. according to Rabbi Yehudah.
  13. But the Sages say:
  14. Whether in the land or in the diaspora – he must bring evidence.

 

 

We can ask many basic questions about this beraita, such as:

What is the definition, or: what are the boundaries, if any, of the “acceptance” referred to in line 1?

Is the presumption in line 3 of born Jewishness or rather of conversion?

Why do we need a Torah text to teach me that witnesses are believed?

How does ““If there should gar with you a ger . . . “ teach that one believes a claim of conversion supported by witnesses?

What is the basis of the dispute between Rabbi Yehudah and the Sages?

These questions are asked by the Talmud and Rashi, and we may return to them in future weeks.  The question that matters to us this week, however, is this:

The first line, at least in the opinion of the Sages, asserts that a claim to be a convert rather than a Gentile is believed only if there is a prior presumption supporting the claim.  Is this also true of a claim to be a born Jew?

Rabbeinu Tam, as cited in the Tosafot to Yebamot 46b, asserts that the claim to be a born Jew is accepted as is.  He in essence reverses the beraita by arguing that the prior presumption of conversion is necessary only when there is evidence of prior Gentileness; a person with no known background would be believed if they claimed to be Jewish.  Rabbeinu Tam asserts this on the basis of the following beraita from Pesachim 3b.

ההוא ארמאה דהוה סליק ואכיל פסחים בירושלים.

אמר: “כתיב (שמות יב) ‘כל בן נכר לא יאכל בו’, ‘כל ערל לא יאכל בו’, ואנא הא קאכילנא משופרי שופרי!”

אמר ליה רבי יהודה בן בתירא: “מי קא ספו לך מאליה?”

אמר ליה: “לא.”

“כי סלקת להתם, אימא להו: ‘ספו לי מאליה.'”

כי סליק, אמר להו: “מאליה ספו לי.”

אמרו ליה: “אליה לגבוה סלקא!”

אמרו ליה: “מאן אמר לך הכי?”

אמר להו: “רבי יהודה בן בתירא.”

אמרו: מאי האי דקמן?  בדקו בתריה ואשכחוהו דארמאה הוא, וקטלוהו.

שלחו ליה לרבי יהודה בן בתירא: “שלם לך רבי יהודה בן בתירא! דאת בנציבין ומצודתך פרוסה בירושלים.”

A Gentile would go up and eat from Paschal sacrifices in Jerusalem.

He said: “Scripture writes ‘No gentile may eat it”, “No uncircumcised my eat it”, and yet I eat from the best of the best!”

Rabbi Yehudah ben Beteira said to him: “Did they feed you from the tail?”

He replied: “No”.

“When you go up there, say to them: ‘Feed me from the tail.’”

When he went up, he said to them: “Feed me from the tail.”

They said to him: “The tail goes to the Most High!”

They said to him: “Who said this to you?”

He replied: “Rabbi Yehudah ben Beteira.”

They said: What is this before us?  They investigated his background and discovered that he was a Gentile, and executed him[1].

They sent to Rabbi Yehudah ben Beteira: “Peace unto you, Rabbi Yehudah ben Beteira!  For you are in Nezivin but your net is spread in Jerusalem.”

 

Here is Rabbeinu Tam’s argument as presented by Tosafot:

תוספות מסכת יבמות דף מז עמוד א

במוחזק לך –

  1. אומר רבינו תם:
  2. דדוקא בדידעינן דהוה עובד כוכבים מעיקרא,
  3. דאי לא הוה ידעינן, מהימן, מגו דאי בעי אמר ‘ישראל אני’, דמהימן,
  4. כדמשמע בריש מסכת פסחים (דף ג: ושם)
  5. גבי ההוא עובד כוכבים דהוה סליק ואכיל פסחים בירושלים.
  6. ואין לומר
  7. שאני התם דהוו סמכי ארובא דהוו ישראל,
  8. דהא בכל מקום נמי איכא רובא, דרוב הבאין לפנינו בתורת יהדות ישראל הם!?
  9. ועוד ראיה משמעתין,
  10. דאמר ליה ר”י אי אתה נאמן לפסול את בניך,
  11. ואיהו גופיה כשר, אלא דשוי נפשיה חתיכה דאיסורא, אבל אם בא על בת כהן – לא פסלה, כדפי’ לעיל.
  12. ומההיא דלעיל (דף מה.) דא”ל זיל גלי אין ראיה,
  13. דשמא לא היו בודקים אלא אם הוא ישראל אם לאו, אבל במשפחתו לא היו בודקין.

“Only if you already presume him to be” –

1. Says Rabbeinu Tam:

2.  (The requirement that a convert have a prior presumption applies) specifically when we knew that he was originally a Gentile,

3. because if we had not known, he would be believed (when he claimed to be a genuine convert), since he has a migo[2] that he could have said ‘I am a Jew’, as someone who makes such a claim is believed,

a. as is implied at the beginning of Pesachim

b. regarding the Gentile who came and ate the Pesach in Jerusalem (that he was initially able to do so suggests that anyone claiming to be Jewish was accepted until counterevidence emerged).

c. and it would be incorrect to (reject Rabbeinu Tam) and say

d. that  because they relied on the majority (of those who presented themselves to eat the Pesach) being Jewish, (whereas our beraita discusses a non-Passover case in which no such majority exists),

e. because everywhere else there is also a majority, (namely) that most of those who come before us בתורת יהדות=presenting themselves as Jews are Jews!?

Rabbeinu Tam argues, as best I can tell, that it is obvious from the story that in previous years no one had investigated whether the Gentile was Jewish before feeding him from the Passover sacrifice, and this indicates that generally a claim to be Jewish was presumed true.

Tosafot then raise a possible objection to the generalization: Perhaps it is not that the claim to be Jewish is believed, but rather that the claim to be eligible to eat the Passover is believed, on the ground that most people making such a claim are telling the truth?  In other words, perhaps there is no general presumption of Jewishness, just a situational probability analysis.

Tosafot’s response is that most people claiming to be Jewish are Jewish, so one does not need the presumption ever.

Here we need to clarify the difference between presumption (חזקה) and probability (רוב).

A presumption can exist without a ground – it can simply be a default setting.  For example, Jews are presumed to be telling the truth when they act as formal witnesses in beit din – they have a chezkat kashrut – simply by being born, even if they are born into a culture that has made lying into a fine art.

A probability, by contrast requires a ground – we need to understand what we are claiming, why we think it is likely true.  Determining the context of the odds is vital.  For example – suppose most of the people in the world are not Jewish, but most of the people claiming to be Jewish are – does the majority support someone’s claim to be Jewish, or oppose it?  Should we seek more precise sociological data – for example, see whether either majority is affected by skin color, age, or level of education?

Note also that handling conflicts between presumption and probability is a massive topic.

Note also that halakhah likely often requires one to investigate ordinary probabilities to see if one can determine the status of a particular case, and allows one to presume that an individual case came from the majority only if either further investigation is impractical, or else if there is a superprobability (likely somewhere between 85 and 95 percent.)

Some practical questions for us then are

1)      If we accept as normative the position of Rabbeinu Tam as recorded by Tosafot – what is the probability today that those who claim to be Jewish actually are Jewish?  Do the percentages vary geographically, eg among Israel, Russia, and the US, in ways that we must account for halakhically?

2)      Does Rabbeinu Tam’s migo argument apply for someone who claims to be a convert and was not previously known to be Gentile, but whose previous Gentileness could be discovered easily, eg. via a Google search?

3)      Does Rabbeinu Tam’s claim that a claim to be Jewish is accepted presumptively apply even if the person making the claim has not previously identified as Jewish, or had previously identified as not Jewish, and so had, before making the claim, been assumed to be not Jewish?

Next  we will discuss Tosafot’s second proof for Rabbeinu Tam, as well as a disproof Tosafot reject.

 


[1] It is not a capital crime for a Gentile to eat the Passover, so presumably there is a backstory about the particular gentile – perhaps he was a spy?

[2] An argument of the form:  If I were lying, I would have made a stronger claim than this, and you would have believed me – so believe me when I make this weaker claim.

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Filed under Beit Din, Conversion, Jewish identity, Jewish Values, marriages

The Agunah Dilemma, #7

Last post I wrote this:

Faced by a modern agunah situation (and often in cases of mamzerut as well), any beit din will look to see if bediavad (after the fact) it is possible to declare that the relationship never constituted kiddushin, and therefore no get is necessary.  (This technique must be sharply distinguished from afk’inhu, or annulment, which may involve retroactively causing the relationship to never have constituted kiddushin.  That will be discussed some weeks hence).  One can accomplish this inter alia by questioning

A)     whether the parties intended to enact kiddushin

B)      whether the parties entered into the relationship willingly

C)      whether the parties entered into the relationship adequately informed about each other

D)     whether the object of value (ring) belonged to the groom before being transferred to the bride

E)      whether the bride acquired something of value without giving equal value for it other than agreement to marry

F)      whether the bride and groom understood that the transfer of the object of value effected marriage

G)     whether the ceremony took place in the presence of valid witnesses.

We concluded last post that relying on A) to free agunot would be very difficult in most cases where the parties choose a Jewish religious ceremony.

In this post we’ll discuss B).

Halakhic marriage is a contract between two parties, and accordingly the marriage is effective only if both parties intended to marry.  However, how does the law know what the parties intend?  Mindreading cannot be a requirement for legal decision-making, so it follows that the law must use external behavior and commonsense reasoning to create presumptive intent.

The burden of proof must always be on the party who wishes to void an apparently valid contract, or put differently, the demonstration that X has signed or orally entered into a contract makes the contract presumptively binding on X.  The halakhic phrase which enshrines this principle is דברים שבלב אינם דברים = “words in the heart are not words” when opposed to words from the lips or the pen, meaning that your present claim of past intent has no legal force against your past speech or signature.

(In most Orthodox wedding ceremonies, the bride indicates her willingness to marry by implication, rather than by speech.[1]  To my knowledge, however, all halakhic decisors have interpreted her acceptance of the ring as an act of entering into the marriage contract, so that the “words in the heart” principle applies.)

How can someone wishing to void a contract meet the burden of proof?  The simplest way to accomplish this is mesirat moda’a, an advance statement before valid witnesses that one’s word or signature will not be sincere.  This is not a device that can be employed retrospectively or conditionally, however, and therefore is not useful with regard to agunah.

A second way to satisfy the burden of proof is to demonstrate coercion, for example by producing witnesses to a threat.  However, postfacto claims of coercion face two halakhic obstacles:

a)      סברה וקבלה = savrah vekiblah – if the contract was not a one-time affair, but rather involved a long-term relationship, halakhah considers the possibility that the coerced party eventually came to terms with the result and entered willingly into the contract.[2]  An agunah would likely have to prove the existence of an ongoing threat throughout the marriage in order to avoid needing a get.    

b)      תליוה וזבין – if the end result of coercion is agreement to a fair contract, i.e. a contract that falls within the norms of the current marketplace, halakhah validates the contract even as it condemns the coercive behavior.  This principle is applied to marriage on Bava Batra 48b.                              Note: the Talmud there records Mar bar Rav Ashi’s statement that in such                                  circumstances we resort to afk’inhu, which we will discuss many posts hence, but I can                say here that afk’inhu is rarely a reliable tactic for freeing Orthodox agunot.

Asserting that her marriage was coerced is therefore rarely if ever an independently successful rationale for freeing an agunah, at least one whose marriage endured past the first night.

However – coercion can play an important ancillary role.  Next post we will discuss C), the claim that the marriage was entered into as the result of misinformation or missing information = מקח טעות = mekach ta’ut.  A standard basis for such a claim is that a mental health condition was not disclosed prior to the wedding.  However, unless made immediately after the wedding, such claims often run into a variation of סברה וקבלה – if the condition made marriage a nonstarter for the woman, why didn’t she leave immediately after discovering it?  She must have made her peace with it!  One possible response is that she felt coerced to stay, and many abused woman correctly feel that leaving would be actively and physically dangerous.

We explained above that a claim that one’s marriage was coerced requires evidence of coercion to succeed, because the action of accepting the ring creates a presumption of willingness.  In this case, however, the action whose meaning we are seeking to interpret is not her acceptance of the ring, but rather her remaining with a man with whom she stood under a chuppah years ago.

A woman’s acceptance of a ring in the context of a man’s statement of marriage can reasonably be constructed as “silent speech”, so that we can presumptively reject a claim that her consent was subject to unstated conditions.  But I don’t think we must or should apply this construction to her failure to leave immediately after finding out that her husband was mentally ill.  We should instead treat that as an action whose meaning is indeterminate, and therefore her present claim that she remained because of coercion or fear would not be defeated by the “words in the heart” principle.

As an analogy –

an employer cannot renege on a signed contract by claiming that he or she signed it under threat, because of “words in the heart”.

What if the employer seeks to void the contract on the ground that the potential employee seriously inflated his or her credentials?

If the employer can establish that the fraud was discovered after the hiring, the contract might well be voided.

What if the employer did not fire the employee immediately after discovering the fraud?

If the employer has a reasonable explanation for the delay – for example, fear that the employee would sabotage an ongoing project – the delay would not prevent the employer from terminating the contract (although the employee would be due appropriate wages for services rendered).

Therefore a plausible claim that coercion or fear of retaliation prevented a woman’s immediate departure from the marital home should be sufficient to keep the focus on whether the original agreement to marry was validly consented to, and allow a claim of mekach ta’ut to proceed even if the woman remained in the marital home after discovering her error. 

Rabbi Aryeh Klapper
Dean, Center for Modern Torah Leadership

www.torahleadership.org


[1] When I am mesader kiddushin, I sometimes ask the bride explicitly whether she consents before the groom places the ring on her finger, and she replies “הרי אני מוכנה לקבל טבעת זו לשם קידושין כדת משה וישראל”.  This seems to me preferable both halakhically and pastorally to silent acceptance, but obviously it should be done only if the couple wishes it.

[2] From an analytic perspective, this is confusing, as it seems that the parties are entering into the contract at different times, and that party A is not aware of the moment that party B actually enters into the contract and therefore makes it binding on B.  I have not seen an adequate treatment of this issue and would welcome references.

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Filed under Beit Din, Jewish divorce, Jewish Values, marriages

Retrospectively invalidating kiddushin

 

Last week we discussed various proposed methods for allowing a couple to deliberately live together in a formal and religiously recognized relationship without necessitating a get should they separate.  I argued that such methods would generally be ineffective and even counterproductive. 

That discussion was almost entirely lekhatchilah (beforehand), however.  Faced by a modern agunah situation (and often in cases of mamzerut as well), any beit din will look to see if bediavad (after the fact) it is possible to declare that the relationship never constituted kiddushin, and therefore no get is necessary.  (This technique must be sharply distinguished from afk’inhu, or annulment, which may involve retroactively causing the relationship to never have constituted kiddushin.  That will be discussed some weeks hence).  One can accomplish this inter alia by questioning

A)     whether the parties intended to enact kiddushin

B)      whether the parties entered into the relationship willingly

C)      whether the parties entered into the relationship adequately informed about each other

D)     whether the object of value (ring) belonged to the groom before being transferred to the bride

E)      whether the bride acquired something of value without giving equal value for it other than agreement to marry

F)      whether the bride and groom understood that the transfer of the object of value effected marriage

G)     whether the ceremony took place in the presence of valid witnesses.

In this post we’ll discuss A).

Here we need to distinguish two kinds of cases:  those in which no attempt was made to conform to the halakhic norms of kiddushin, and those in which such an attempt was made.

The most common case of the first kind is where the couple had a civil rather than a religious ceremony.

It might be thought obvious that in such cases no get is necessary.  However, halakhic marriage can be effected via sexual relations as well as through ceremony, and the Talmud in various places established the principle ein adam oseh beilato beilat znut = “a man does not make his sexual act one of promiscuity”.  Now this obviously is not a claim that all male sexual acts are intended to accomplish marriage.  Rather, it is a claim that in a marital context, a man will stipulate that he has whatever intentions are necessary to make his sexual acts marital.  The halakhic tradition has sometimes taken this as a presumption that in a committed monogamous relationship, the first sexual act was intended to effect kiddushin.  The great 20th century halakhic decisor Rabbi Yosef Eliyahu Henkin famously held this about couples who publicly identified as husband and wife in the presence of a Jewish community.  Rabbi Moshe Feinstein famously disagreed, and there is testimony that Rav Henkin did not hold to his position in cases of mamzerut.  It is also possible to distinguish (either way) between

a)       situations in which there is a readily available option for ceremonial kiddushin (such as the United States) and opting for purely civil marriage likely expresses indifference to religion, and

b)      situations in which there is a readily available option for ceremonial kiddushin (such as Israel) and opting for purely civil marriage requires a trip to Cyprus and may express hostility to religion (although we should distinguish hostility to a particular rabbinic bureaucracy from hostility to Halakhah generally), and

c)       situations in which there is no readily available option for ceremonial kiddushin (such as under Communism in the USSR)

In cases of agunah I believe that most batei din would rely on Rabbi Feinstein in cases of purely civil marriage, or at the least refer the case to another beit din that relies on Rabbi Feinstein.

Another case of the first kind is where there was a religious ceremony that deliberately disassociated itself from halakhic kiddushin.   For example, a Reform colleague and I years ago considered proposing that the Reform ceremony include the words “shelo kedat Mosheh v’Yisroel”­ =” not in accordance with the laws of Moses and Israel” to make explicit its rejection of kiddushin, from his perspective to avoid association with what he understood as a patriarchal institution (but see the discussion of kinyan acharayut last post), and from mine to prevent any risk that remarriage without a get would produce mamzerut.  If it can be established that the couple was making the choice to avoid kiddushin consciously while committing to the relationship, i.e. that they did not consider themselves to be engaged in promiscuity, there should be no presumption that a later sexual act was intended to effect kiddushin, even according to Rav Henkin.

But this is not obvious.  If one holds that intent-for-kiddushin, or da’at kiddushin requires specific religious content, the argument is compelling.  Some argue, however, that intent for any relationship which both parties agree imposes a religious obligation of sexual fidelity on the woman constitutes da’at kiddushin; some might not require agreement that the obligation is religious in nature.  If the parties reject other aspects of kiddushin, such as the husband’s physical obligations toward the wife, they are considered matneh al mah shekatuv baTorah = stipulating against Scripture.  In such cases the rule is maaseh kayam utenai batel = the action takes legal effect but the stipulation is a nullity.  In other words, the couple is married, and each party has all the obligations of marriage. 

I think that this is too broad a definition of intent-for-kiddushin.  My preferred alternative is that we define da’at kiddushin as intent for a relationship that imposes an obligation of sexual fidelity on the woman that can be dissolved only via a get.   If the groom does not intend to impose such an obligation on the bride, as would be the case in all such ceremonies, then in fact no kiddushin can have happened and no get is necessary, even though halakhically this means that all sexual acts during the relationship are considered znut.

I cannot say at this point whether/when batei din would accept my preferred formulation lehalakhah.  However, my sense is that in cases of agunah, most batei din would adopt some formulation of daat-kiddushin that would allow the woman to remarry, or at the least refer the case to another beit din that adopted a formulation sufficiently narrow to allow the woman to remarry.

Many Reform and most Conservative wedding ceremonies, however, do adopt or adapt halakhic language and ritual to an extent that make it very hard to argue that the couple explicitly intends to avoid kiddushin.  Reasonably, most couples emerge from such ceremonies feeling that they have entered into whatever Judaism considers marriage.  Factors other than lack of da’at kiddushin are therefore necessary to free agunot who were married in such ceremonies. 

Aryeh Klapper

 

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The Agunah Dilemma, #5

In previous posts I’ve tried to define the terms “agunah” and “systemic solution”, generally showing that they can mean many different things and are affected by social and legal environment.  In this post I’ll begin a discussion of systemic solutions thus far proposed.  They fall into the following categories, which I will discuss seriatim:

  1. Preventing kiddushin
  2. Retrospectively invalidating kiddushin
  3. Constructing kiddushin that dissolve automatically in reaction to get-refusal
  4. Creating a consent-independent mechanism for get-delivery
  5. Creating a disincentive for get-refusal
  6. Coercing get-delivery
  7. Dissolving kiddushin by means other than a get

Preventing Kiddushin

One advocate at the Agunah Summit argued that the best way to prevent get-refusal is to prevent get-necessity.  She accordingly suggested that woman be encouraged to find ways of formalizing relationships that do not count halakhically as kiddushin.

Rabbi Meir Simchah Feldblum z”l suggested – I have never been quite sure how seriously – that this had already happened in practice, on the ground that no contemporary woman actually intends to accept the terms of kiddushin, specifically the vulnerability to get-refusal.

This proposed solution, especially when proposed systemically and for both Israel and the United States, raises many, many halakhic and moral difficulties, and in any case would be ineffective.  Here’s why:

1) It likely actively suborns sin.  Halakhah forbids both men and women to engage in non-exclusive sexual relationships, (although the ground of the prohibition is different for men and women).  Rabbi Feldblum and others noted that some or many medieval authorities permitted pilagshut = concubinage, which they understood to be a  relationship that limited the woman to one partner but did not require her to receive a get for it to be dissolved.  However, most commentators believe that Maimonides believed that pilagshut is Biblically forbidden to everyone but the monarch, and other authorities believe that it is rabbinically forbidden.  It is therefore profoundly unlikely that this suggestion would be adopted by a significant percentage of the halakhically committed population.

2) It leaves women without the protection of marriage.  Kiddushin provides women with the ketubah, which provided for her in the case of divorce or widowhood.  While the ketubah is of little practical value today, this is because secular has adopted the ketubah model – but again, only for married couples.  Israeli law would not, so far as I know, recognize concubines as married.  Women would therefore run the risk of being left without any claim if the relationship ended.  Pilagshim could still obtain marriage licenses in the United States and marry secularly, so this objection does not apply in the United States.

3) Some authorities require a get to sever a pilagshut relationship.  I suspect that many batei din, especially in Israel, would not permit a woman who had been formally designated a pilegesh to remarry without a get.

4) Those authorities who do not require a get to sever a pilagshut relationship might nonetheless require the male to actively and willingly sever the relationship.  (I have been unable to find a satisfying discussion of this question and welcome references).

The purported lack of need for a get therefore does not enhance the woman’s legal position in any way, but rather harms it, because—

  1. she has none of the protections of marriage;
  2. the male has none of the obligations of marriage;
  3. there are no precedents for compelling or even pressuring the male to end the relationship, even if the female wishes to.
  4. Even if the male consents, the woman may be left with no proof that the relationship has ended.

In other words – it seems to me likely that women who enter into such relationships will become agunot at the same or greater rate than present, and gain no other practical advantages.  The proposal could only be effective if batei din accepted that such relationships could be contracted and sustained without requiring a get, or the husband’s consent, to dissolve them, and batei din are not intellectually compelled or religiously desirous of accepting such proposals.

An alternative version of the proposal is for woman to eschew any and all relationships that have halakhic significance, on the grounds that either

  1. It is worth committing the sin of sex-outside-exclusive-relationship to avoid the risk of agunah, or
  2. Kiddushin is hopelessly sexist and should therefore be abandoned.  The risk of agunah is symptomatic and emblematic of the fundamental problem that kiddushin involves a kinyan of the woman by the man.

This is sometimes described as “reverting to kiddushei bnei Noach” and/or solemnized with creative rituals and texts such as brit ahuvim.

With regard to b), my custom in premarital counseling is to mention Rabbi Shlomo Riskin’s very plausible claim that substance of the kinyan of kiddushin is not that the man acquires the woman, but rather that the man acquires his obligations toward the woman.  The prima facie evidence for this claim is that kiddushin effected by document happen when the man transfers the shtar to the woman, and in commerce it is the seller who transfers the shtar to the buyer.  A secondary supporting framework is that wives have no Biblical obligations toward husbands in marriage, whereas husbands are obligated to provide for their wives’ food, clothing, and sexuality.  Wives do have a one-way Biblical prohibition against sexual nonexclusivity, but that is an obligation to G-d rather than to the husband.

With regard to a), I think this approach runs the risk of blaming the victim.  As I noted last week, agunot in America are always in a sense volitional – no one forces them to keep halakhah.  Proposing “solutions” that require women to violate either the letter of the spirit of Halakhah as understood by their home communities will not diminish the incidence of agunah in America; it will only diminish sympathy for them.

Nor is it clear that this solution works in Israel for those not halakhically committed.  Just as secular law in the United States recognizes “common-law marriage”, meaning that a couple who acts married for some period of time is treated legally as having married, so too batei din, via mechanisms we will discuss in the future in the context of conditional marriage.

However – and this is a big however – I think that it is intrinsically problematic for a halakhic system to have compulsory jurisdiction over people who fundamentally reject its assumptions, especially when that combination accidentally but inevitably generates severe human suffering.  In Israel the absence of civil marriage creates this situation; in America having a valid kiddushin necessitates a valid get.

I have wondered for years whether Orthodox rabbis should officiate at weddings for the non-Orthodox in a culture where divorce is common and gittin rare.  I have heard several stories about American rabbis deliberately making errors when officiating at weddings to forestall issues of mamzerut; perhaps the same kind of thing occurs in Israel to forestall agunah.  Nowadays I tend to think that insisting on the prenup (which will of course be the subject of a later post) should allow a rabbi to educate such couples so that the risk that they will choose not to obtain a get should they divorce is minimal.

 

Rabbi Aryeh Klapper
Dean, The Center for Modern Torah Leadership

www.torahleadership.org

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The Agunah Dilemma, #4

Last week we discussed the desire for “a systemic solution” for the agunah issue.  One challenge to implementing any such single solution is that the issue manifests differently in Israel and the United States, among other places.

Israel

Israel has no civil divorce.  All marriages between two Jews must be ended by a get before either partner can remarry.

As a result, many Israelis without deep halakhic loyalty are subject to a system that binds them against their will.

Israeli agunot therefore may be women who would happily remarry without a get if they had a choice.  They may happily accept any solution which frees them, regardless of their own evaluation of the halakhic or intellectual integrity of that solution.

For example, they would be effectively freed by a governmental decision to permit civil divorce even for parties who were married via valid kiddushin.  They would also almost certainly be effectively freed by a governmental decision to recognize the marriage-ending declarations and rituals of nonOrthodox Judaism, or to recognize divorces issued by a highly idiosyncratic Orthodox beit din.

On the other hand – most Israeli agunot would not be freed by any method that the government refused to recognize, no matter how solidly grounded that method is in Halakhah, or how broad a consensus of universally respected Orthodox poskim approved it.  As of now, the Israeli government allows the Chief Rabbinate to set its Jewish divorce standards.

 

United States

The US has secular divorce, and does not grant religious divorce any legal force.  American Jewish women have the legal option to remarry without an Orthodox-recognized get if they so choose, either under secular or under nonOrthodox auspices.

A woman who self-identifies as an agunah in America is consciously rejecting these options. 

She may reject them because they conflict with her personal commitments or ideology; or,

she may reject them because they conflict with the commitments or ideology of the community or communities she identifies with and would seek a remarriage partner in.

American agunot therefore will not accept a solution that fails to satisfy their own and or their communities’ standards of intellectual integrity and/or halakhic integrity and/or halakhic authority.   

If they were willing to accept such solutions, they would already be free.

On the other hand – American agunot and/or their communities have the autonomy to choose their own halakhic authorities and to evaluate halakhic arguments on their own.  Therefore a solution for American agunot does not in principle require either rabbinic consensus or the approval of a particular rabbi or set of rabbis.

Note: Some Israeli women, and therefore likely some Israeli agunot, are like Americans in that they autonomously accept the  authority of halakhah, or live in communities that do, and so can only accept solutions that meet their own religious standards.

Note: Some Israeli women would be willing to remarry illegally so long as they have a valid halakhic divorce.

Note:  Canada is fundamentally the same as the US with regard to this section, but with secular legal differences we will discuss elsewhere.  I do not have enough knowledge of other countries to discuss them individually

Rabbi Aryeh Klapper 

Dean, The Center for Modern Torah Leadership

www.torahleadership.org

 

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The Agunah Dilemma, #3

One theme of the Agunah Summit was the need for a “systemic solution”.  However, different speakers used the term to mean and exclude different things, and this led to frequent and unfortunate misunderstandings and failures of communication.  I will therefore try here to develop a rigorous analysis of the term.

Systemic can mean:

  1. Comprehensive (antonym “ad hoc”)
  2. Internal (antonym “external”)
  3. Automatic (antonym “dependent”)

These three translations generate five specific uses:

a)     internal to the Halakhic system, rather than reliant on external forces, such as the secular courts

b)    capable of resolving all cases

c)     capable of resolving all cases without requiring any rabbi to  exercise any form of halakhic discretion

d)    capable of resolving all cases without requiring specific men or women to exercise any form of discretion

e)     capable of resolving all cases without requiring any human being, rabbi or otherwise, to exercise any form of discretion

Each of these definitions likely represents a distinct values position.  For example:

a)     the desire for an “internal solution” may stem from a concern for the moral reputation of Halakhah, and lead someone to prefer such a solution even if it is less effective than a solution that involves extrahalakhic forces or agencies;

b)    the desire for a comprehensive solution may reflect a belief that ad hoc solutions cannot be relied upon in advance, and so reliance on such solutions will leave women vulnerable to get-refusal blackmail or anxiety;

c)     the desire for a solution not dependent on rabbinic discretion may reflect a lack of trust that the rabbinic court system will properly use any new powers it might be given, or a general aversion to increasing rabbinic power;

d)    the desire for a solution not dependent on the discretion of non-rabbis may reflect a lack of trust that couples will take proper prudential measures before marriage, or a sense that accepting such a solution in principle will in practice enable rabbis to avoid their responsibility to fix the matter.

e)     The desire for a solution independent of any human discretion may reflect either a combination of c) and d) or else a sense that vulnerable people should not, if possible, be required to put their trust in others.

Furthermore, the contemporary agunah issue (see also the four manifestations discussed last post) affects three distinct groups of women:

1)       Women who are currently in the midst of or have completed civil divorce proceedings

2)       Women who are currently married but not considering divorce

3)       Women who are not currently married.

A solution may be comprehensive for one or two but not all three of these groups.  For example:

prenuptial agreements only help group 3;

postnuptial agreements might extend a similar solution to group 2;

but any solution requiring the husband to voluntarily accept new obligations cannot help group 1.

Furthermore, some solutions may work comprehensively, internally, or automatically in Israel but not in the United States, or vice versa.  More on that in a forthcoming installment.

 

Rabbi Aryeh Klapper
Dean, The Center for Modern Torah Leadership

www.torahleadership.org

 

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