Category Archives: Summer Beit Midrash

The 2018 SBM Shayla – Honoring Parents

by Rabbi Aryeh Klapper

SBM 2018 concluded with a superb series of conversations about the Fellows’ draft responsa to the following case. It was moving and inspiring to see how seriously they took both the issues and each other’s work.  We hope that the case will stimulate further conversations among you, and look forward to sharing the Fellows’ final responsa soon.  Meanwhile, we’re including at the end some guiding questions and approaches drawn from Rabbi Klapper’s draft responsa (note that elements of his draft did not survive the Fellows grilling either).

CASE

Kirk and Gwyneth live in Hollywood, Connecticut.  She is 38, he is 39, and they have three children, girls ages 5 and 7, and a boy age 12.  She is a lawyer working for a large firm that specializes in creating offshore corporations to lower tax liabilities. He is a successful serial entrepreneur currently building a business selling nonmatching pairs of socks to young women (www.dobbysoxers.com).  They identify as Modern Orthodox and keep Shabbat and a kosher home, and hilkhot niddah deoraita.

Gwyneth’s parents, Mel and Natalie, divorced when she was still a baby.  She grew up with her mother Natalie on the Upper East Side, living a lavish lifestyle largely financed by Mel, who never forgave either her mother or her for his overwhelming defeat in divorce court.  Mel and Gwyneth were together every second weekend until her high school graduation, and while the relationship never flourished, it has also never been allowed to lapse completely.  Lately they touch base by phone every few months.  Mel has however shown great affection and generosity to his grandchildren, who call him regularly.  Gwyneth and Natalie talk almost daily, and meet frequently.

Mel is still active in his business and very wealthy.  He has never been terribly interested in Jewish practice, although he is a large donor to local Jewish institutions in his current home in Los Angeles.  He has remarried and divorced several Gentile wives since divorcing Natalie.

Natalie has become gradually more interested in religion, and now identifies as Modern Orthodox.  She is an active member of an MO synagogue, keeps a kosher home, and will not eat in nonhekshered fleishig restaurants or check her email on Shabbat, although she does make and receive phone calls and texts.  For some years, she has been in a relationship with Dustin, and they would like to marry.  However, she never received a get from Mel, and Mel has refused to discuss the matter with her, threatening to block her number if she brings it up again.  The Beit Din of America has issued a seruv against Mel and ORA has organized a demonstration in front of his house.     

Natalie asks Gwyneth to bring the issue up with Mel. Gwyneth says that she has already tried, and Mel ordered her never to mention it again.  Natalie also asks Gwyneth to prevent the grandchildren from calling Mel until he gives the get, and if she can, even to prevent them from answering the phone when Mel calls. 

Gwyneth now comes to you and asks whether she is obligated to bring the issue up again with Mel, or whether she is forbidden to, or whether she can choose whichever she thinks is right.  If the last, she’d appreciate any guidance you can give her.  She asks the same question regarding the grandchildren.  She is explicit that she would rather not interfere in their relationship with their grandfather, which has seemed to her a beautiful thing.  She also mentions that Kirk has been very clear that he would not support allowing the children to “be dragged into this thing between your parents,” and that Kirk has a good relationship with Mel that she is sometimes jealous of.  She is aware that Kirk thinks that her mother is impossible to live with, and that Mel is doing Dustin a favor by preventing Natalie from marrying him.  For that matter, she recognizes that her mother has often been a negative force in her life and in her marriage, and both Kirk and her therapist have told her that some of the things her mother has said to her in recent years amount to emotional abuse and attempts at excessive control.  She recognizes that her mother has always tried to sabotage her relationship with Mel.  At the same time, she has deep gratitude for what she sees as a mostly normal and successful childhood, and believes that the stress of not being able to marry Dustin has exacerbated her mother’s weaknesses of character.         

Kirk’s parents Sacha and Scarlett are still married to each other, and they live a few towns over in New Rochelle.  They have identified as Orthodox and been shomrei Shabbat throughout his life.  However, 10 years ago Sacha was indicted for income tax fraud for systematically taking part of the fees for his wedding catering fees in cash and not reporting them.  The indictment was dismissed after he agreed to pay a very heavy fine.  Kirk and Sacha had previously been close, but Kirk has not spoken to his father since the conviction.  He says that he prefers to keep in his mind the clear image of his father as a profoundly righteous man that he imbibed as a child.  His sense is that his father does not believe that he did anything morally wrong, and regrets only being caught, although he has no indication that his father is taking any legal chances these days. However, Kirk calls his mother every day.  Last week, she told him that his father will be receiving a lifetime service award at his shul’s annual dinner and that both of them would really appreciate it if he would make sure to be there; there seems to be a hint that his father’s health is not perfect. She mentions that they would be willing to pay for his ticket if money is an issue.  He mentions all this to Gwyneth, who opposes his going because “it will send the wrong message to our children.”  Still, he feels uncomfortable and even worried, and they both agree to ask you for advice or psak, whichever you feel appropriate.       

GUIDING QUESTIONS and APPROACHES

WHAT ARE OUR HUMAN GOALS?

  • What interest do we have, if any, in altering the relationship between Kirk and Sacha?  Note that change may strain the status quo between Kirk and Gwyneth.
  • What interest do we have, if any, in altering the relationship between Gwyneth and Natalie?  We may have a long-term interest in improving her capacity to resist Natalie, but there is no reason that process must begin now. 
  • What interest, if any, do we have in altering the relationship between Gwyneth and Mel?
  • We have a clear interest in freeing Natalie.

 WHAT ARE OUR HALAKHIC GOALS?

  • Do we think that Kirk is in constant violation of his filial obligations?
  • Do we think that Orthodox society will be helped by more protests against honoring people such as Sacha?  Do we think that such protests are worth disrupting otherwise healthy families?
  • The second question is really a generalized question of the first.  So we need to start with it, although we may conclude that he is not in violation narrowly, and yet that we have no interest in generalizing his behavior.

IS KIRK IN CONSTANT VIOLATION OF HIS FILIAL OBLIGATIONS?

Two questions:

  1. Is cutting off contact a per se violation?
  2. If yes, has Sacha behaved in a way that removes all the obligations that cutting off contact would otherwise violate?

 

Please email your substantive comments to us, or post on our Facebook page.  Thank you for reading!  Rabbi Klapper’s weekly parshah essay will iyH resume next week.

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Of Marriage and Mikvaot: When Does One Not Need to Listen to Their Parents? (Week Five Summary of SBM 2018)

by Amir Zinkow and Yair Lichtman, Senior Fellows

Up until this week, we spent the summer engrossed in the theoretical realm of Gemara, Rishonim, and codes. Now, we have finally arrived at more practical issues. Ironically, many of the more practical cases of kibbud av va’em focus on those people who are in situations that may result in their being exempt from the mitzvot of kibbud and yir’ah. These include cases of parents who tell their children to do things they do not want to do, how to live their lives, or situations of abuse, R’’L.

A seminal decision comes from the 15th century Italian posek Rabbi Joseph Colon Trabotto (Shu’’t Maharik 366). The question that came before him was complicated, with many aspects, but the part relevant to us is this: If a father forbids his son from marrying a specific woman, must the son obey? Does kibbud av require absolute obedience?

Maharik brings three reasons why a son should not have to obey his father in such a case. First, he notes that the Talmud records a dispute as to whether expenditures required to take care of a parent are borne by the child, or rather by the parent.  The consensus psak is that they are borne by the parent. Maharik argues that if we do not require a child to pay actual money for the care of his father, all the more so do we not require a child to go through the emotional suffering that would result from not marrying the woman with whom he desires to spend his life.

Maharik’s second argument is that, in a way, the father is asking his son to commit a sin. For if the son does not marry this woman, he will have to marry someone else, whom he will inevitably come to resent, and Chazal were careful not to create marriages in which resentment is present  (He derives this from the prohibition against men marrying women they have never seen, although he concedes that this prohibition can be relaxed when the alternative may be not marrying).

Finally, Maharik claims that kibbud av is limited to providing direct physical benefit to a parent. In our case, no physical benefit is present.

In shiur, we noted several interesting aspects of Maharik’s argumentation that may affect the way we posken in other cases. One issue we saw is that his first argument is very easily trivializable. How much emotional distress must children suffer before it is too much and they no longer have to listen to their parents? How do we even quantify this? What if someone just really does not want to take out the trash!?

We also observed that Maharik greatly lowered the standard of what kind of transgression a parent must ask of their child in order to remove the child’s obligation of kibbud. In the responsum, the Maharik uses the language of “nidnud aveirah“.  This phrase is difficult to translate, but indicates an action that is close to sinning but not actually sinning.

Lastly, Maharik made the claim that obeying parents is not part of kibbud or yir’ah; we were unsure whether we were comfortable writing obedience completely out of these mitzvot.

R. Moshe Isserles (Rema) in Yoreh De’ah 241:25 brings down Maharik lehalakhah, ruling that if a father is refusing to allow his son to marry someone, the son has no obligation to obey. However, Netziv, in his Meishiv Davar, reins in this general pesak. He reasons that if the marriage will cause the parent any tza’ar or embarrassment, then the son will be in transgression of the mitzvat lo ta’aseh of “arur makleh aviv v’imo”, “cursed is one who is makleh his father or mother”.  (The word makleh is difficult; one can translate it literally as “lighten”, or else as a lesser form of mekallel, or cursing.) In such cases, the son is obligated to obey the parent and not marry the wife of his choice.

We noted again how difficult it is to quantify tza’ar and embarrassment. When weighing a son’s tza’ar against his father’s, it becomes even more challenging to decide: Whose tza’ar is greater?  We also noted that the prohibition against being makleh parents does not appear in the Talmud, although it does in Rambam (Hilkhot Mamrim, end of Chapter 5), and in any case Netziv expands it well beyond Rambam to include causing parents tza’ar or to indirectly cause them bizayon.

Whether or not one accepts (some or all) of Maharik’s arguments will determine the extent of the obligations of kibbud av va’em in a variety of practical cases. For example, Rabbi Chaim Jachter spoke to SBM about the possible application of harchakot d’Rabbeinu Tam by a son on his father. These sanctions, sometimes imposed by a beit din on a recalcitrant husband to encourage him to give his wife a get, involve the cessation of most forms of social interaction with the husband, including business interaction and casual conversation. May a daughter participate in such sanctions against her father?  Would that extend to refusing direct requests for food or conversation? Rabbi Jachter didn’t issue a definitive ruling on the matter, but it may depend on such issues as whether one must endure emotional pain in the pursuit of this mitzvah, whether the father’s attempts at interaction would be considered “requests to violate the Torah,” and whether maintaining social contact is part of the mitzvah. Rabbi Jachter also raised a potential distinction between teenagers and adult children, considering the effect on both the children and the parents at these varying stages of life.

Another situation in which Maharik’s arguments play out is the case of a mother instructing her son to violate a personal religious practice which falls short of a complete obligation. Shu”t Arugat HaBosem (OC 19), by Rabbi Moshe Greenwald, relates to a man who wants to know if he must listen when his father instructs him to refrain from immersing in a mikveh before prayer. In his discussion, Rabbi Greenwald evaluates whether there is, in fact, an element of mitzvah in such an immersion, and concludes that

כיון דמעולם היה מנהגך כך

א”כ פשיטא דלא גרע ממאי דאיתא ביו”ד סי’ ר”ד דבכל דבר מצוה אם נהג כן ג’ פעמים אפילו לא הוצא בשפתיו צריך לקיים מצד נדר…

Since your practice has always been to do this,

if so it is obvious that this is no worse than what is found in Yoreh Deah 204, [which says] that in every matter of a mitzvah, if one acts in that way three times, even if he did not articulate it with his lips, he needs to fulfill it as a neder…

Rabbi Greenwald allows a person to disobey his parent only after determining that this practice constitutes a mitzvah of sufficient weight.

Shu”t B’tzel HaChochmah (2:55) deals with a case of a son who learns that his father has cancer, whose father asks him to tell him about the diagnosis. Rabbi Betzalel Stern, presuming that it would be bad for the father’s health to hear the news, discusses whether listening to the father’s request falls within the realm of kibbud. He concludes that the son should not tell his father, as he seems to accept Maharik’s claim that kibbud only relates to the father’s personal needs.

This being our final week of shiur, we had a discussion about how these halakhot of kibbud av va’em would be applied given various modern values and realities. For example, given today’s sensitivities towards the emotional pain that come with certain strained relationships, how much do we require a child to go through in order to fulfill kibbud av va’em? We also considered meta-halakhic factors: As focus shifts from the family to the individual, how does this affect our pesak regarding kibbud av va’em? If kibbud av va’em as previously paskened assumed that individual identity (the Self) is at least partially constituted by family membership, and that this halakhah is fundamentally about the creation of a family unit rather than about the fulfillment of the individuals in the relationship, whereas we share modern culture’s position that individual fulfillment is a greater value, and see the self as existing prior to its membership in the family, perhaps this should affect our attitudes towards this mitzvah.  Or perhaps the mitzvah should challenge us to rethink our acceptance of cultural assumptions on these issues.

The modern phenomenon of ba’alei teshuvah raises another issue.  One standard rationale for these mitzvot is that they inculcate respect for the wisdom of the past, and thereby for Jewish tradition.  How do we conceive of and justify these mitzvot for people and societies in which Torah and Halakha are revolutionary instead of traditional? In other words, when children of non-frum parents become frum, they are breaking with tradition – with the way their parents think and act.  How does our tradition deal with this? Are ba’alei teshuvah obligated in kibbud av va’em even though their parents do not keep halakhah?  Does it matter whether the children’s return to observance is experienced as a fulfillment of shared values that the parents did not live out, or as a rejection of parental values?

As we enter our week of teshuvah writing, we are struggling with these questions and more. We hope to consider the cultural, meta-halakhic, and modern realities as we write. Perhaps most importantly, we look forward to weighing the values that underlie all of kibbud av va’em and producing responsa that reflect those values.

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Human Dignity, Human Relationships, and Kibbud Av Va’Em: Week Four Summary of SBM 2018

This week’s summary is by Tamar Yastrab and Tamar Beer, SBM fellows

Rabbi Klapper began shiur by highlighting the ambiguities of the Gemara’s question “eizehu kavod eizehu yir’ah”. Does the question presuppose intuitive definitions of kavod and yir’ah, and seek to differentiate between the two seemingly similar categories? Or, does the question presume no prior knowledge of the categories of kavod and yir’ah, and seek to define them?

It is curious that the gemara lists examples of kavod and yir’ah for parents rather than precisely defining the categories. We realized that all the examples of yir’ah were DON’Ts and all the examples of kavod were DOs. We noted that strangely, obedience was absent from both these lists, even though obedience seemed the central element in many of the narratives about Kibbud Av Va’em we’ve seen in the gemara.

The next step was exploring the various ways in which several of the listed examples can be interpreted. To take one from each list:

Under yir’ah, we find v’lo machriyo =you shall not weigh in on a controversy in which a parent has taken a position. Rashi limits this to the case of a parent who is a chakham (and the subject matter to halakhah). Rav Chananel ben Shmuel contends that the prohibition applies regardless of the parent’s expertise (and to all subjects (or perhaps: all subjects except for halakhah). We asked whether their positions reflect differing standards as to what kind of parent deserves reverence – does kavod require deference to a parent who is a fool? or rather relate to the context and nature of reverence – is casual disagreement about trivia an act of irreverence?

Under kavod, we find maakhilo– causes him to be fed. Does this require the child to provide the parent with food, to personally serve the parent food (or to ensure that the parent is served by a competent butler)? The same issue arises with regard to all the other listed examples of kavod – do they require provision of goods or rather of services?

This issue may be at the core of the the question the gemara next poses: mishel mi =who is responsible for the financial costs of kibbud (and perhaps yir’ah)?

Our two options are either mishel ben =kavod must be financially paid for by the child, or else mishel av =the financial costs of kavod are borne by the parent. It is tempting to assume that the mishel ben position demands more of the child than the mishel ben position. However, this may not be so, in fact the reverse may be true. If the child is exempt in terms of monetary obligations, it must be that the obligation is on actions. This may imply that the child cannot outsource his obligations to hired others if it becomes too onerous, and also that he is expected to contribute his time and his patience. Another possibility is that the child may be obligated to provide both money and service.

The gemara challenges the mishel ben position by citing a beraita which rules that a child can feed their impoverished parent with food set aside as ma’aser ani (=the poor tithe given in the third and sixth years of the shemittah cycle). If kavod imposes a financial obligation on the son, satisfying kavod from a pool designated for the poor generally may be considered illegal “double dipping”, since it diminishes the total resources set aside for the class of poor people.

The gemara answers that the obligation of kavod can be satisfied with the parent still poor and still hungry. At that point there is no double dipping involved in feeding the parent with maaser ani. However, the beraita concludes by citing Rabbi Yehudah as declaring that “A curse should fall on one who feeds their parent maaser ani”. Since kavod has been satisfied, why the curse? The gemara answers that “Nonetheless, it is degrading”. If it is degrading, how can the obligation of kavod have been satisfied?

Rabbi Klapper suggested, following an idea of Rav Hershel Schachter and building on an answer given in shiur by Amir Zinkow, that perhaps parents are owed not only the special obligation of kibbud av va’em, but also that the general obligation of kavod habriot (=human dignity) has particular manifestations in the relationship between children and parents. While this standard obligation of kavod applies equally to every person, what is considered to be kavod can vary depending on the relationship with the person.

This can explain why one may not use maaser ani to feed a parent even after the obligation of kibbud av va’em-has been satisfied. Perhaps receiving charity in the context of a parent-child relationship is degrading, and as such, would be considered a deficiency in the baseline level of kavod which every person deserves.

The gemara next cites a beraita in which Rabbi Eliezer answers the question “How far does kibbud av v’em extend” by citing the case of a parent throwing a wallet full of money into the sea. The child must not humiliate the parent. The pronouns of the statement are ambiguous- כדי שיטול ארנקי ויזרקנו לים בפניו ואינו מכלימו. Whose wallet? Even if the child’s wallet, must the parent indemnify the loss if we hold mishel av? If the wallet belongs to the parent, or if the parent must indemnify the child, it may be hard to understand why this case would be used as an extreme case of kibbud. Rabbi Klapper asserted that in fact children do often develop a sense of entitlement to their parents’ money, and become angry if parents spend money on their own pleasures that diminishes the child’s financial expectations.

We next delved into various rishonim.

The Sefer Charedim believes that the chiyyuv is extremely far reaching, comparing the parent-child relationship to that of a king and servant. Sefer Charedim suggests that the child is obligated in all demands of the parents, barring only a parental request for a child to violate halakhah. He also contends that kavod is intended to express and/or inculcate ahavah =love.

The Ramban suggests that the core chiyuv of kibbud av va’em is providing the parent הנאה =benefit. He is therefore compelled to explain various cases of obedience as providing psychological benefits for the parent, but he is unwilling to say that obedience per se gives the parents a relevant benefit.

The Sefer HaChinuch explains that the obligation of kibbud av va’em is meant to imbue children with a sense of gratitude for those who provided for them”.

The Sefer Yereim suggests that there is no set amount required for kibbud av va’em, and proposes that the more careful one is to fulfil this command to better. We noted that this seemed odd both because kibbud av va’em is not listed among the mitzvot that “have no measure”, and because the case of maaser ani indicates that there is in fact a set requirement.

Rabbi Klapper suggested that the halakhic portions of the text which delineate specific requirements can be understood in conjunction with the heavily midrashic stories that illustrate great acts of kavod by drawing a distinction in kibbud av va’em. The standard level is chiyyuv =obligation, relating the the examples of kavod and yir’ah outlined in the beraita and perhaps to the more expansive interpretations of the rishonim. However, inherent in the mitzvah is also a level of kiyyum, where the child may act beyond what she or he is called upon to do. In this regard, we can comprehend the extreme narratives of אתא רב דימי and רבי אבהו (Kedushin 31.) as going above the letter of the law.

We discussed other textual oddities present in the gemera and rishonim. The gemara exempts women from kibbud av va’em because of רשות אחרים. What does רשות אחרים mean, and how could it exempt women from an unambiguous halakhic obligation? (We noted Rabbi Mordechai Willig’s position that the exemption is socially contingent.)

Tzipporah Machlah Klapper suggested that perhaps from the plural אחרים we can infer that the gemara was talking about her children, rather than her spouse. Rabbi Klapper believes that this constraint points to a larger limitation on kibbud av va’em. Kibbud av va’em is one relationship that at times overrides some relationships (Tosfot- אם יעסוק בכבוד אביו הלא אבידת חבירו קודמת כדאמרינן באלו מציאות (ב”מ דף לב.), yet can also be overcome by other relationships. Perhaps the marriage relationship supersedes the parental relationship halakhically. This suggests that husbands as well must prioritize their marital relationship over their obligations of kibbud av va’em where those conflict.

Another interesting observation we made was that though the Rambam brings many of our sugyot down to halacha, he never mentioms the idea שלשה שותפי באדם, that G-d and parents are partners in each human being. How could he omit one of the most foundational text related to kibbud av va’em? (Note that Tur promptly reinserts it in his own code.) Perhaps for the Rambam, kibbud av va’em is has no emotional bearing on the parent-child relationship and really addresses the child and Hashem alone. Thus Rambam explains that a child should remain silent and respectful even when their parents publically humiliate them is because וְיִירָא וְיִפְחַד מִמֶּלֶךְ מַלְכֵי הַמְּלָכִים שֶׁצִּוָּהוּ בְּכָךְ , he must be in terror and fear of the King of Kings Who has commanded him to show kavod to parents. In stark contrast to Sefer Charedim, he says nothing about the child’s emotional relationship to the parent. For Rambam, at the root of kibbud av va’em is truly kibbud Shamayim. Yet perhaps he goes too far in removing the human relationship from the equation, and his position leaves too much space for abuse.

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What Does Kibbud Av Va’Em Actually Mean? (Week Three Summary of SBM 2018)

by Eli Finkelstein and Steve Gotlib, SBM Fellows

There are four pesukim in the Torah from which we derive Mitzvot regarding Kibbud Av Va’Em (KAVE):

כַּבֵּד אֶת-אָבִיךָ, וְאֶת-אִמֶּךָ–לְמַעַן, יַאֲרִכוּן יָמֶיךָ, עַל הָאֲדָמָה, אֲשֶׁר-יְהוָה אֱלֹהֶיךָ נֹתֵן לָךְ. (שמות כ:יא)

אִישׁ אִמּוֹ וְאָבִיו תִּירָאוּ, וְאֶת-שַׁבְּתֹתַי תִּשְׁמֹרוּ:  אֲנִי, יְהוָה אֱלֹהֵיכֶם. (ויקרא יט:ג)

וּמַכֵּה אָבִיו וְאִמּוֹ, מוֹת יוּמָת. (שמות כא:טו)

וּמְקַלֵּל אָבִיו וְאִמּוֹ, מוֹת יוּמָת. (שמות כא:יז)

 

We spent this week trying to figure out what we could learn from these pesukim. How do they relate to each other, and to other mitzvot in general?

We began our discussion through the lens of the sugya about אתי עשה ודחי לא תעשה, the discussion about whether the fulfillment of a Mitzvat Aseh can override a prohibition (Yevamot 5B-6B).

The Gemara intends to prove that an Aseh can override a Lo Taaseh whose punishment is Karet by bringing in KAVE. If not for Vayikra 19:3, which is interpreted as subordinating KAVE to Shabbat because Shabbat represents Kevod Hashem, we would have thought that honoring one’s parents could supersede the prohibition of Shabbat.  We would then have generalized this to mean that all Asehs override all prohibitions involving karet (when the Aseh can only be done by violating the prohibition).

However, the Gemara rejects that claim by saying that even before the verse, we would never have thought that KAVE could override all Shabbat prohibitions.  Rather, we would have thought this only about the prohibition against directing animals (mechamer), which is not punished with Karet.  Ie, the fact that in the end KAVE does not override Shabbat also cannot teach us a general rule that Asehs don’t override override Lo Taasehs.  This is because we  would usually be breaking the Lo Taaseh only for a Hechsher Mitzvah of KAVE, and not for the Guf Mitzvah, which would be worth violating Shabbat for.   (The rishonim discuss what to do about the cases where the violation of Shabbat would directly benefit the parent, and why simply obeying a command to be mechamer wouldn’t directly fulfill KAVE even if the physical benefit was indirect, e.g. by having the animal bring desired foodstuffs.)

However, a similar Gemara in Bava Metzia offers a different interpretation. The reason why KAVE might be able to override a Lo Taaseh with an Aseh is because KAVE is analogized to Kibbud Hashem.  (The Yerushalmi has a version in which KAVE is shown to take precedence over Kibbud Hashem in some ways.)

So we see two different views of KAVE – one in which it has less power than other mitzvot, and one in which it has more power.

YU Rosh Yeshiva Rabbi Michael Rosensweig formulates this dichotomy by stating “Kibbud av va-eim, then, is governed by a fundamental tension. On the one hand… it is manifestly subordinate to other mitzvot because it cannot compete against kavod Shamayim — kulkhem chayavim bikhvodi. But, on the other hand… kibbud av va-eim is superior to other mitzvot because it is analogous to  kavod Hamakom — hukash kevodam le-kavod ha-makom.” 

There are two ways to resolve this apparent conflict. The first is by R. Rosensweig, who cites the opinion of the Baalei HaTosafot on Yevamot 6a. The Tosafot write that KAVE is a fundamentally extreme mitzvah which can never be equal to others (though it can in theory either supersede or be subordinate to them).  Once the Talmud concludes that KAVE cannot displace a lo taaseh ve-taaseh it must be the case that it cannot displace even an ordinary lav.

But how can this be the case given the unique interplay between KAVE and the honor of Heaven that we learn from the various pesukim which give it authority?

R. Rosensweig answers this question by stating that “A child’s first interaction with the Ribono Shel Olam is through his parents, through the values and beliefs and through the traditions they bequeath to him… it is in the furthering of kavod Shamayim that the authority of a parent — and thereby the imperative of kibbud — is firmly rooted.”

If this is the case, it makes sense why KAVE can not trump kavod Shamayim. If parents are teaching their child to live a life of Jewish values, the honor that they are due is due to them channeling the honor of Heaven. However, according to R. Rosensweig, “if a parent competes against kavod Shamayim, when he tests his authority against His Authority, he severs his own authority from its life source and is left pathetically paralyzed and pitiably feeble.” Any demand of a parent to violate any command of the Torah would then be meaningless as they are no longer inspiring kavod Shamayim and no longer have any authority to rely on in order to grant them honor.

In R. Rosensweig’s view KAVE serves the exclusive purpose of being an instrument to teach kavod Shamayim. If it is accomplishing this goal, it is all-powerful. If it is not accomplishing this goal, it is utterly powerless.

A second approach was offered by R. Klapper in Shiur this week. First, we must understand the connection between KAVE and Kibbud Hashem as a metaphor. Then we need to interrogate the metaphor: do we take it seriously as a Halakhic concept, or do we treat it as merely a literary comparison which is not intended as an overall equation?

To answer this question, we must use the same Tosafot on Yevamot 6A, DH Nigmar MeHacha DeLo Dachi, cited by Rav Rosensweig:

כיון דגלי לן קרא דלא אלימא לן טעמא דהוקש כבודם לכבודה מקום דלידחי, א”כ אפילו לאו גרידא לא דחי, דמכלאים לא מצי גמיר משום דכיבוד הוי הכשר מצוה:

Once the Torah has revealed to us that the rationale that KAVE is analogized to Kevod HaMakom cannot push aside a prohibition involving karet, we realize that it cannot push aside even an ordinary prohibition.  (This is so even though other Asehs can push aside such prohibitions, which is derived from the rule that the mitzvah of tzitzit overrides the prohibition against wearing shaatnez,) because KAVE is weaker than tzitzit because it is only a Hekhsher Mitzvah.

The way we understood this line is that since the Gemara in Bava Metzia does not see the connection of KAVE to Kibbud Hashem as having sufficient legal meaning to override a prohibition involving karet, we see that it has no legal significance at all, at least in terms of determining a hierarchy of mitzvot.

In addition to this conceptual debate,  we learned the quintessential sugya in the Gemara regarding KAVE, on Kiddushin 29A-32A.  Among the topics we covered was a discussion of which parent one is required to prioritize Kibbud for. The Gemara in 31A states that one is Chayav to honor his father before his mother, since his mother is also Chayav to honor her husband. In addition, we see a Halachah that a woman is only Chayav to honor her parents when she is not married, but that her obligation of KAVE is in some way bounded and limited by an obligation to honor her husband.

On this topic, we read an article by YU Rosh Yeshiva Rabbi Mordechai Willig in Beit Yitzchak. There, he methodically showed that all the manifestations of a wife’s chiyuv to honor her husband are sociologically determined, not eternal.  Nowadays, they do not apply, and a husband who insists on them is violating communal and relational norms rather than enacting them.  We noted that the gemara does not provide any legal basis for such an obligation.  Following this argument, a married woman nowadays is fully Chayav in Kibbud Av Ve’Em, and a child would not automatically honor the father first. This argument will be important for our coming discussion of KAVE in cases of parental conflict.

In the coming weeks, SBM 18 will continue to dive into the various mekorot regarding Kibbud Av Ve’Em, and how various halachot are applied to real-life situations.

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Must Children Presume Parental Penitence? (Week Two Summary of SBM 2018)

by Zachary Ottenstein, SBM Fellow

A beraita on Talmud Kiddushin 22b declares that if a man and woman agree to marry “on condition that he is righteous”, they are married, since he may have “thought of repentance” (שמא הרהר בתשובה).  Lechem Mishnah (Ishut 8:5) and many subsequent scholars see this text as contradicting the consensus ruling of later authorities that a marriage contracted in front of invalid-as-sinners witnesses is null and void: why don’t we presume that the witnesses repented and became valid?

SBM explored this question via a thorough examination of the first half of an extensive responsum written by Rav Ovadiah Yosef z”l in 1957 (Yabia Omer Volume III, Even Ha’ezer 8).

In Rav Ovadiah’s case, two witnesses come to a beit din and testify that a young woman had accepted a token of kiddushin from Mr. X. Both attest that they saw the kiddushin take place in a prearranged place at a prearranged time of day.  They say that the marriage was intended to help the young woman evade the match that her parents had agreed to with her cousin. The young woman admits to none of this and maintains that she never accepted kiddushin from Mr. X.

The witnesses’ recollections conflict regarding  the date and time of day of the wedding: One claims that it was the week before Pesach, while the other claims that it was a week after Pesach. In addition, the father of the woman brought witnesses  stating that the witnesses to thekiddushin were both violators of the Shabbat due to them smoking cigarettes during Shabbat. One of the witnesses admits to not being halakhically observant man and specifically to smoking on Shabbat. So it not clear whether a kiddushin transaction took place, and furthermore, if whatever took place happened in the sight of valid witnesses.

The question is whether we can be sure that kiddushin was never accepted, and/or that no valid witnesses were present if it was accepted, so that we can free the young woman to remarry. The obvious way out of this predicament is for Mr. X to give her a get, but unfortunately he has “turned his shoulder and prevented her release via a get.”   The father of the bride strongly desires a ruling that no get is necessary, but one rabbi argues for stringency, citing our opening beraita as requiring us to be concerned lest the witnesses had repented and were therefore valid. Rav Ovadiah seizes the opportunity to explore the broad issue of presumed penitence.

Rav Ovadiah begins by quoting an Amoraic dispute found on Talmud Sanhedrin 26b.   R’ Nachman states that a person suspected of sexual improprieties is still a valid witness.  R’ Sheshet counters this by asking rhetorically: “He is owed 40 lashes on his shoulders (as punishment for his improprieties), but he is still valid?!” Rava then offers a reconciliation or compromise between these two positions: “R’ Nachman in reality agrees that this person cannot testify on issues related to women, whether to “take her out” (gittin) or to “bring her in” (kiddushin).”

This passage led Rambam to conclude that a kiddushin performed in front of witnesses who are invalid per a deoraita law (for which the minimal punishment is lashes) is null and void.  But why shouldn’t we at least be concerned for the possibility that the witnesses had “thought of repentance”? Why would thinking of teshuvah be sufficient to turn the groom from an absolute rasha to a tzaddik, but leave the witnesses as disqualified reshaim?

Rav Ovadiah quotes a sound explanation from Responsa Maharam Padua 37.

טעמא רבה איכא,

שמאחר שהוא אומר כן ורוצה בקידושין –

מסתמא רוצה לקיים תנאו

There is a great reason for this

Since he states this (condition) and he wants the kiddushin –

The presumption is that he wants to fulfill the condition

Since his condition can only be fulfilled through his repentance, therefore a lot more weight can be given to the idea that maybe he has thought about doing teshuvah. However, the witnesses have no such obligation to fulfill and therefore their potential thoughts of doing teshuvah do not carry as much weight.

This answer of the Maharam Padua seems logical, but it is not based on halakhah as much as it is based on psychology.  Shu”t Radbaz 1:140 gives an entirely different reason for declaring the eidim to be invalid. He writes

דכיון דאיכא סהדי דעבר עבירה שנפסל בה לעדות –

אינו חוזר להכשרו עד שיבאו עדים ויעדו שחזר בתשובה

Since there are witnesses that he transgressed a transgression that makes him invalid to testify

He does not return to being valid until witnesses testify that he has repented

Witnesses become invalid due to their witnessed violation of a commandment, and therefore they cannot become valid again until they have witnesses who can testify that they have in fact repented.

How does all this pertain to the SBM topic of Kibbud Av va’Em?  To answer that question we turn to some primary sources that Rav Ovadiah will use in the second half of his responsum.

Rambam (Hilkhot Mamrim 6:11) states that a mamzer is obligated to honor his father, but he is not liable to punishment if he strikes or curses his father before his father repents (of the adulterous or incestuous act that led to his conception). He goes on to say that even if a parent is wicked and sins frequently, the son is still obligated to fear and honor him.

This contrasts with the opinion of the Tur (Yoreh Deah, Hilkhot Kibbud Av va’Em 240).  Tur holds that as long as the father remains sinful, there is no obligation to honor him, but if and when he does repent, the obligation is reinstated.  But – to bring us full circle – can the Tur’s position ever be relied on in practice, or must children always be concerned lest their parents have “thought of teshuvah” and therefore all obligations toward them have been reinstated?  (More radically: Is it possible that since repentance can retroactively transform the status of past deliberate transgressions into accidental transgression and even virtues, is it possible for parental sinners to retroactively become deserving of honor, and therefore for children to become retroactively guilty for having failed to act toward their previously wicked parents in accordance with the obligations of kavod or yir’ah?)

In the coming weeks, we will continue to discuss hirhurei teshuvah and how it pertains to questions of Kibbud Av va’Em. Our background in the concepts of hirhurei teshuvah and honoring wicked parents, both in the primary and secondary sources, will provide us with an excellent springboard for discussing other relevant questions such as: What makes a parent wicked enough to void the chiyuv of the child towards them? Is there ever a case in which the halakhah itself obligates or recommends that a child not honor his or her parent? Please stay tuned!

Shabbat Shalom!

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Conditional Kiddushin and the Presumption of Parental Penitence

by Rabbi Aryeh Klapper

SBM 2018 is off to a terrific start.  I’m sitting in the beit midrash several hours after maariv listening to a group of fellows study a responsum of Rav Moshe Feinstein about what to do when a universal minhag plainly contradicts an authoritative halakhic text, while several other engage in private bekiut or Torah writing projects.  Here I’ll try to share with you some of the learning from the daily shiur.

Our theme is “Honoring Parents: The Hard Cases”, but we started from a seemingly unrelated passage on Kiddushin 49b.  We’ll explain its relevance at the very end of this essay.

{האומר לאשה: התקדשי לי}

על מנת שאני צדיק –

אפילו רשע גמור – מקודשת,

שמא הרהר תשובה בדעתו.

על מנת שאני רשע –

אפילו צדיק גמור – מקודשת,

שמא הרהר דבר עבודת כוכבים בדעתו.

{If a man says to a woman: “Marry me}

On condition that I am a tzaddik” –

even if he is an absolute rasha – she is married,

{because} perhaps he cogitated repentance in his mind.

“On condition that I am a rasha” –

even if he is an absolute tzaddik – she is married,

{perhaps} he cogitated a matter of idolatry in his mind.

Now kiddushin is a form of halakhic contract, and therefore we can always ask whether a rule about marriage applies equally well in commercial contexts.  So in this case:  If A sells B a horse on condition that he is a tzaddik, when in fact he is a complete rasha, would the sale go through because of the possibility that the seller had repented?

ROSH comments that the woman in our case is only doubtfully married, not certainly married, even thought the language of the passage is simply “married”.  Rabbeinu Yerucham comments that this is obvious.  Why is it obvious?  The simplest explanation is that it is utterly implausible to claim that the man in our case certainly did teshuvah.

Beit Yosef, however, explains that Rabbeinu Yerucham was making a literary rather than a substantive claim.  It’s obvious that she is only “doubtfully married” because the text saysperhaps”.  Seemingly, Beit Yosef thinks that it would not be unreasonable to claim that she is certainly married, although it is obvious that the Talmud does not take that position.

But is it reasonable to claim that she is even doubtfully married?  The legal category “doubtful”, or safek, generally reflects something with a 50% chance of occurring.  Do we really think that 50% of absolutely wicked men can be presumed to have repented?  Lechem Mishnah among others points out that such a claim would have absurd consequences.  We rule that a marriage that takes place before witnesses who are invalid-as-reshaim- as-the result-of-their-sins is a nullity, not a “doubtful marriage”.  How can this be?  Shouldn’t there be a 50% chance that the witnesses repented?

Responsa Doveiv Meisharim 1:22 notes that one can concretize this problem by framing it as a single case.  Three men each commit a sin which invalidates them as witnesses because it makes them into “reshaim”.  One of them then marries a woman “on condition that I am a tzadik” in the presence of the other two.  Would we say that his condition is fulfilled because he presumably repented, but that the marriage is nonetheless a nullity because there is no chance that the witnesses repented?!

The simplest approach to resolving this paradox is to claim that by “doubtful” Rosh did not mean that there was a genuine likelihood of repentance.  Rather, he meant that the Rabbis chose to consider her as doubtfully married when the groom made this condition even though they knew that the chances of his actually having repented were infinitesimal.   Therefore, with regard to all other laws, such as the validity of witnesses, the possibility of repentance can safely be ignored.

Doveiv Meisharim himself offers a much fancier resolution.  To cease being a rasha and become a tzaddik, he contends, one must both have repented and atoned.  Repentance by itself is therefore insufficient to fulfill a condition “that I am a tzaddik” – except for a groom, because marriage by itself, like Yom Kippur, is a comprehensive atonement for all prior sins.  This explanation allows him to maintain that repentance is 50% likely in all cases.

Rabbeinu Yerucham had also cited a dispute as to whether the Talmud’s law is true no matter what sins the groom had committed.  One position held that it is not true for interpersonal mitzvot, which require appeasing the friend as well as repentance in order for G-d to forgive them.  This is especially true of theft, where there is a formal obligation to return the object.  In all such cases, one cannot become a tzaddik through repentance alone.  But a second position believes that one become a tzaddik if one has repented and resolved to return the object (even if that resolve turns out to be fleeting.)

This second position generates another apparent conflict between our passage and the laws of witnesses.  No one contends that the mere resolution to return a stolen object revalidates a thief as a witness, especially if the resolution is not carried through.  Such a thief remains a rasha and therefore an invalid witness.  So how can he be considered not merely an ex-rasha, but even a tzaddik, for the purpose of marriage?

The simplest solution is that our passage is not using the terms “rasha” and “tzaddik” in their formal legal sense.  For that matter, it may not be using them in the sense they have in ordinary conversation.  Our passage is interested exclusively in what the terms mean when they are used by a man in the context of a conditional offer of marriage, and how they are understood by a woman who accepts that offer.

This raises the question: Why would a man make an offer on such a condition?  If he knows himself to be wicked, why make a condition of righteousness?  If he knows himself to be righteous, why make a condition of wickedness?  I suggested that he might do so precisely because his interest is not in being married to the woman, but rather in convincing the woman that she is married to him.  His motives might range from avarice – her rich father might be more likely to do business with him – to the hope of convincing his “fiancée” to permit him physical liberties.  On this theory, there might be no actual possibility of repentance.  Rather, Chazal reacted to his chicanery by decreeing that he is in fact matrimonially entangled with this woman, to the point that he needs to give her a get.

But, I contend, on this theory we would likely waive the marriage and get requirement if it victimized the woman rather than the man. Just such a case is discussed by Responsa Radbaz 4:91. He points out that some Geonim ruled that an apostate is simply not Jewish for the purpose of levirate marriage, so that a woman whose husband died childless can remarry freely even if her late husband has living apostate brothers who refuse to do chalitzah.  These geonim also ruled that if the same apostate brother married a different woman, the marriage would be valid – meaning that he is Jewish!  Radbaz suggests that the marriage would only be valid “doubtfully”, and that this “doubt” is a “mere stringency”, not a genuine likelihood.  Therefore, it can be ignored when the consequence would be trapping a woman as an agunah.

However, Responsa Shaagat Aryeh 1 (the “other” Shaagat Aryeh, a grandson of the Bach) discusses a case in which it is to the woman’s advantage for us to consider the possibility of repentance a genuine likelihood.  A man swore not to give a get, and then used judges-invalid-as-sinners to undo his oath so as to give the get; is the oath undone?  Shaagat Aryeh contend that it is, because we do not allow the possibility that the judges did not repent to prevent the get.  His argument assumes that there is in fact a 50% chance of repentance.

How does all this relate to our SBM theme?  We will learn next week that parents forfeit some or all rights to being honored when they behave badly.  Is a mere resolution of repentance enough to restore those rights, and obligate their children to honor them as if nothing has happened?  Does it matter which sins they have committed?  Must children consider that their parents have or might have repented, even if there is no evidence for that possibility, and the last horrific sin was only minutes ago?  Probably not, if our passage discussed “a mere stringency”.  On the other hand, perhaps we follow Shaagat Aryeh in regarding this as a genuine 50% chance.  Moreover, there may be excellent policy reasons for preventing children from writing their parents off the first time they sin and until they conclusively demonstrate that they have repented.

Stay tuned!  Recordings and sourcesheets will be posted soon, and questions are welcome.

Shabbat shalom!

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Mental Illness and Religious Life: A Case Study

by Rabbi Aryeh Klapper

SBM 2017 Shaylah:

Kaila Adamah Jellison was a junior at Samuel Myerson High School when she suffered her first attack of manic-depressive illness.  

It began with exhilaration.    I had always been a highly competent and painstaking student, but prone to two-dimensional readings of texts and human beings.  Suddenly I could see into the depths of literature and people, made giant intuitive leaps, and everything made so much sense!  I still experience the world more richly as a result of that first week.  But the crash came soon after.  My limbs became concrete; my mind, an uncomprehending blank.  Nothing made sense; nothing interested me.  Then came an obsession with death – I wandered through the local cemetery for several nights in a row writing endless morbid poems and reciting kaddish at each gravestone that seemed to have a Jewish name . . . But no one in school seemed to notice anything amiss; I still don’t understand how.

A second attack came in graduate school, soon after her marriage to Marcus.  This time the manic phase led to uncontrolled spending and impulsive rule-breaking; the depressive phase almost killed her.  

I bought fountain pens – tens of fountain pens, because my ideas deserved to be expressed in perfect calligraphic form.  I shoplifted some of them because the line at the store was too long.  Then I started collecting wild turkey feathers and sharpening them into quills so that I could write the perfect Megillat Esther – and I did! . . . a few days later I was hallucinating, and thinking suicidally in very specific ways …

A psychiatrist put her on lithium, which worked.  But for several years she would stop taking the pills whenever she felt good enough for a while – the highs were too seductive, and the lows no longer seemed real.  She thought she could take them in time if her moods seemed to be spiraling out of control; but she was constantly in danger of falling completely over one cliff or the other. But one day in Elul, Marcus came home to find her in the grip of a paranoid/grandiose fantasy.  

The world was out to get me; or maybe the world was broken, and only I could fix it, by repenting properly on Yom Kippur.  But my whole community was conspiring to stop me . . .

Kaila was hospitalized on 28 Ellul, in a facility well out of walking distance of any motel or Orthodox community and with no space for guests and limited visiting hours.  She is prescribed medication that makes her ravenously hungry.  Her doctors say that while it is almost certain that she will return to normal moods soon, having caring visitors daily will probably lead to a significantly faster return to normalcy.  They also warn that this is remission, not recovery, and that this cycle will happen again unless she succeeds in staying on her meds.

As you are a close friend of the family, and an informal halakhic authority of some repute, it is not surprising that when you visited that night, both Kaila and Marcus had questions they want to ask you:

Kaila:

  1. Is the megillah kosher?
  2. If I blow shofar for myself, can I make the berakhah?
  3. Should/may/must I fast on Yom Kippur?

Marcus

  1. Can I take a cab to visit her on Shabbat and yom tov?
  2. Our minhag has always been for her to make the hamotzi on Friday nights.  Can I be yotzei with her berakhah while she is hospitalized?  (Was I yotzei with her berkakhot during these interim periods?)  

Sometime before Pesach, with Kaila having been out of the hospital after Sukkot and medication-compliant since, she decides to write a magazine article about her experiences for the OUs Jewish Action, with the goal of destigmatizing mental illness in the Orthodox community.  Jewish Action accepts the article and asks you if you’re willing to write up the answers you gave her, with your reasoning, so they can either publish or link to it.  They also pass on that several rabbis on their advisory board expressed deep interest in reading as fully developed a teshuvah on the questions as you can produce.  

Rabbi Klapper’s response:

Kaila and Marcus Jellison are an exceptional couple who deserve our admiration and gratitude.  Their courage opens the space for a much-needed conversation about the spiritual and halakhic lives of the mentally ill and how they can best be included in our communities.  I emphasize that we need to discuss all three aspects: halakhah, spirituality, and inclusion.  My focus here will be on how halakhic deliberations and conclusions affect and are affected by all three aspects.

The halakhic tradition discusses mental disability primarily in one narrow and probably atypical context: the competence of a husband to issue a Jewish divorce.  The context is narrow because divorce has no necessary connection to any other aspect of Jewish law.  On the one hand, it requires an unparalleled type of mental “force” on the part of the husband.  He must write or delegate the writing of the get in a fashion that imbues it with the semi-mystical quality of “lishmoh-ness”.  This requires his willing consent and intent, and is often understood as requiring his physical presence.  On the other hand, as my teacher Rabbi J. David Bleich has noted in the context of American constitutional law, a husband can produce a valid get without having any degree of religious intent or belief, so long as he understands its consequences within the realm of Jewish law for those who accept its authority.

Divorce law may also be halakhically anomalous with regard to issues of mental disability because it involves one of the supreme ethical imperatives within halakhah: the drive to free women from marriages that provide them with no companionship.  A man who is declared incompetent to divorce will generally also be useless as a husband.  The less relationally competent he is, therefore, the more pressure there is to declare him legally competent in the area of divorce.  There may be correspondingly greater reason to declare him incompetent with regard to other areas of halakhah.

This brings us back to our initial triumvirate:  From the perspectives of the spiritual and communal lives of the mentally ill, what are the central halakhic issues, and how are they best approached? [1]

For example, Kaila and Marcus asked two questions about blessings.  The first was whether she was permitted to make a birkat hamitzvah before blowing shofar for herself on Rosh HaShannah.  The second was whether she could make a birkat hanehenin on behalf of herself and another obligated adult.  

It is possible to approach these issues from a purely technical, although humane and clever, perspective.  For example, one might suggest a mimah nafshakh: If Kaila is competent, then she is permitted to make a birkat hamitzvah; if she is not, then she is not subject to the prohibition against making berakhot levatalah.  So either way there is no reason for a posek to tell her not to make the berakhah before the shofar.  Or a pragmatic workaround: Marcus can mutter the blessing under his breath while pretending to fulfill his obligation through Kaila.  These are perfectly legitimate practical approaches to the issue at hand, and yet they require absolutely no consideration of Kaila’s spiritual life or communal place (even though they cater to her presumed psychological best interests).  

A very different approach would ask: What sort of intellectual, emotional, or religious understandings or capacities are necessary to make these blessings meaningfully for oneself, and for others?  To what extent is that meaning or meanings dependent on the religious reality of being obligated, or on the religious condition of being capable of obligation?  To what extent should or must halakhic categories of obligation correspond to such spiritual and psychological realities?

Let me be clear that the answer to the last question is not obvious.  For example, one strand of the tradition holds that blind people are exempt from all Torah obligations despite being perfectly capable of obligation.  Some modern poskim continue to exempt deaf-mutes from all obligations on the grounds that this exemption is a rationale-less and therefore unchangeable halakhah leMosheh miSinai.  Rav Mosheh Feinstein held (in one responsum; he appears to hold differently elsewhere) that anyone exempted from one mitzvah on grounds of mental incompetence is exempt from all mitzvot, even if they are fully competent with regard to those other mitzvot.  A standard contemporary ruling is that adults with the mental age of kindergarteners are legally obligated in all mitzvot, even though they cannot be held more liable than kindergarteners when they transgress.  So we have both exemptions and obligations that explicitly do not correspond to spiritual and psychological realities.

Nonetheless, I believe that it is generally best to pasken with a bias toward correspondence.  We therefore must turn to Kaila’s realities.

Manic-depressive illness is not explicitly discussed in Rabbinic literature.  The Rabbinic term shotah is defined in one core discussion by a set of actions that include one that may mark depression, sleeping in cemeteries, and another that may mark mania, going out alone at night.  But there is no hint of bipolarity as a defined condition [2], let alone as a progressive disease with varying degrees of severity.  There is of course also no discussion of its treatment, or of the status of manic-depressives in the various stages of taking effective medicines.

As SBM 2017 Fellow Shoshana Jakobovits correctly notes, manic-depressive illness is not a “secular” condition that can be evaluated in isolation from religion.  Rather, at each stage it is often associated with religion.  As with other mental illnesses such as obsessive-compulsive disorder, the expression of the disease in otherwise religious people is especially likely to take a religious form.  Thus in our case Kaila said kaddish in graveyards while depressed, and learned safrut and wrote a Megillat Esther while manic.

We can therefore separate two questions:

1) What are the halakhic status and consequences of religious acts that are expressions of the underlying illness, recognizing that those actions are likely to be exaggerated expressions of “genuine” feelings?

2) What are the halakhic status and consequences of the religious acts of people suffering from mental illness, but which they plausibly contend are not expressions of the underlying illness?  

Now we are not called on to discuss the kaddishes per se.  We can presume that Kaila was aware that as a davar shebikedushah, the halakhah generally does not permit the kaddish to be said liturgically without a minyan present, and that in a neuronormal condition she would have abided by this halakhic restriction.  It is accordingly clear that her illness is capable of causing her to violate halakhah in a manner that the Talmud likely would describe as העברה על דעתה, against her actual will.  It is possible that this particular expression of the disease was wholly accidental, and she might equally well have violated any other halakhah.  It is also possible that her underlying halakhic inhibitions would have prevented her from violating halakhah except in service to what seemed like a necessary positive religious outpouring.  If the first hypothesis is correct, it seems to me likely that she must be ruled legally unaccountable for all matters.  If the second is correct, we must address whether this distinction can become the basis for a coherent and plausible halakhic framework.

We must also discuss whether “legally unaccountable” should or must entail “not halakhically obligated”.  As noted above, modern decisors have regarded adults with Down’s Syndrome as simultaneously legally unaccountable and halakhically obligated.  However, perhaps the moral pressures in that case exceed those in ours.  The Talmud also records the category of the tinok shehishbah, the Jewish infant captured and raised by non-observant aliens.  As an adult, such an infant is legally unaccountable; he or she incurs liability for one sacrifice when they first commit a sin of appropriate severity, and incurs no further liability no matter how numerous or varied their sins.  Rav Moshe Feinstein in one responsum states explicitly a position that seems implicit in much contemporary psak regarding American Jewry, namely that such an adult is nonetheless treated halakhically as fully obligated, and so can for instance make birkot hanehenin for other fully obligated adults.  Perhaps then Kaila can also do so even if we rule that he is legally unaccountable for all matters.  One might argue that she can do so kal vachomer, since her unaccountability may stem from an exaggerated spiritual sensibility rather than from the absence of any such sensibility.

But here it may also necessary to distinguish the stages of illness.  In OCD, for example, the religious expression has no real connection to the mitzvah; the disease just seizes on available anxieties and amplifies them generically.  In severe mania, this is also the case.  But there may be a hypomanic point at which this is not so, or at least not so absolutely.  

Many halakhic scholars have offered variations on a legal distinction between a person who is intrinsically not obligated, and one who is obligated-but-excused.  This distinction may have concrete halakhic consequences, for example whether one may say a birkat hamitzvah.  The category “shotah” has been assigned to each side of this divide, and other scholars have split the category, so that some shotim fall on one side and other shotim on the other.  Some scholars have offered more theological distinctions, in which people can be categorized as religiously obligated even though not halakhically obligated.  Such scholars may distinguish between rational and other commandments, for example.  Each of these distinctions can be seen as relevant to our case.

The question of violating Shabbat to visit psychiatric inpatients can also be the subject of profound theological/halakhic discourse.  Is it considered “life-saving” to restore someone to full sanity?  If yes, does that mean that the insane are not fully alive (and how does one avoid the disturbing potential moral and halakhic implications of such a statement)?  However, these are all moot in the present case.  An in-patient for psychosis resulting from manic-depressive illness is at non-negligible risk for self-harm at essentially every moment.  Any non-negligible possibility of speeding their return to neuronormalcy has the status of life-saving, and for a patient who expresses a desire or gratitude for visitors, visiting certainly has that possibility.  As there is no issue of immediacy, care should be taken to violate Shabbat in the least halakhically severe way possible, but the underlying law is clear.

To conclude:  My hope is that this synopsis honors the Jellison’s courage by jumpstarting overdue conversations among both scholars and laity, and by making our communities safer and more supportive spaces for members with mental illnesses.  I pray that I have not committed any errors, and encourage readers to email me with questions or correction.

 

Notes:

[1] A more complete, and yet still very preliminary, analysis of the underlying traditional texts and rulings can be found in my forthcoming Teshuvah.  In this venue I will present the halakhah as I would currently decide it.

[2] There are a few discussions of conditions that may approximate clinical depression.

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