ARR 419-434

CCAR RESPONSA

American Reform Responsa

138. Marriage with Brother’s Widow

(Vol. XXXV, 1925, pp. 364-379) The leaders of Reform Judaism have for some time been confronted with the following question: Why should the marriage with a deceased brother’s wife be prohibited by Jewish religious practice while the marriage with a deceased wife’s sister be permitted, and, on occasion, even encouraged? It led to a heated controversy between Drs. E. Cohn and I.M. Wise on the one hand, and Drs. Samuel Hirsch, David Einhorn, and B. Felsenthal on the other. It received the attention of the Central Conference of American Rabbis at two or three of its sessions, and especially at the Charlevoix Meeting (1915) in Dr. K. Kohler’s comprehensive paper on “Harmonization of Marriage and Divorce Laws,” and in Rabbi A. Simon’s Summary. Since Rabbi David Philipson’s request, at the second Cape May Conference, in 1923, that the Conference consider the Jewish attitude towards the marriage of a deceased brother’s wife, the question is again before us. The issue derives its vitality from the fact that the laws of the various states of our Union place such marriages on a par with those contracted with a deceased wife’s sister. Before taking a definite stand on the matter, it becomes necessary to survey the ground historically and to note carefully the reasons for the prohibition. Modern Biblical scholarship has bared the gradual evolution of the marriage laws of ancient Israel. Whereas Abraham married Sarah (his sister by the same father),^l Jacob married two sisters,² and Amram married his aunt³; and whereas Absalom appropriated his father’s concubines⁴ and Adonijah claimed the hand of Abishag (his father’s youngest wife), while Solomon considered it as part of his regal inheritance⁵–the law, as formulated in Leviticus 18 (which appears to belong to the latest stratum of Biblical legislation), prohibits all such marriages as incestuous. Leviticus 28:16, as well as 20:21, unconditionally forbids the marriage of the brother’s wife.⁶ On the other hand, the Deuteronomic Code lays down the law that “If brethren dwell together, and one of them die, and have no child, the wife of the dead shall not be married abroad unto one not of his kin; her husband’s brother shall go in unto her, and take her unto him to wife, and perform the duty of a husband’s brother unto her. And it shall be, that the first born she bearest shall succeed in the name of his brother that is dead, that his name be not blotted out of Israel.”⁷ In the light of Genesis 38 and Ruth 5, it is evident that previous to the Deuteronomic Law any near kinsman was eligible to discharge this duty. The omission of this important law in Leviticus could not have been accidental. It is quite likely that the priestly legislator, viewing all human relations from the exalted heights of holiness, regarded even the Levirate marriage with aversion. Be that as it may, his point of view did not prevail. When, in consequence of Ezra’s reformation, the Pentateuch as an undivided whole came to be viewed as the revealed will of God and as the unquestioned basis for Jewish life, the Levirate marriage was retained. Subsequent Jewish thought interpreted it as an exception to the general prohibition of marrying the brother’s wife. Accordingly, Jonathan renders Lev. 18:16 thus: “‘Ervat eshet achicha lo tegaleh, ervat achicha hi.’ Eryat itat achuch la tivzeh bechayei achuch uvatar moteih in it leih banin, iryata de-achuch hi” (“The wife of thy brother shalt thou not defile during the life of thy brother and after his death, if he has children, she is thy brother’s nakedness)⁸ The Levirate marriage is not a peculiarly Jewish institution. As the evidence in Westermarck’s History of Human Marriage⁹ and in Frazer’s Folk Lore of the Old Testament¹⁰ shows, it was practiced among primitive and semi-primitive peoples in many parts of the world. J.F. McLennan,¹¹ followed by W.R. Smith,^l2 Wellhausen,^l3 Buhl,^l4 Benzinger,^l5 and Bartonl¹⁶ regard it as a survival of fraternal polyandry of the Tibetan type, in which a group of brothers living together share a single wife, and the children of the brotherhood are all, by legal fiction, reckoned as belonging to the eldest brother. As this form of polyandry was practiced in Arabia, it may adequately explain both the Levirate marriage in ancient Israel and the general aversion to that state of society as embodied in the prohibition of the marriage of the deceased brother’s wife. Other scholars, such as Post, Starcke, Driver,^l7 and Frazer, seek the origin of the Levirate marriage in a particular form of group marriage, namely, in the marriage of a group of brothers to a group of sisters.^l8 Westermarck, while rejecting the hypothesis of group marriage, accounts for the Levirate on the basis of inheritance of the brother’s property.^l9 In keeping with the inferior status of women in primitive society, she was treated as an important part of her husband’s estate, and, upon his death, passed together with the children and property to the new head of the family, who assumed toward them the position of guardian and owner. In line with this view is Tarbari’s statement in his commentary to the Koran: “In the Jahiliya, when a man’s father or brother or son died and left a widow, the dead man’s heir, if he came at once and threw his garment over her, had the right to marry her under the dowry (Mahr) of (i.e., already paid by) her (deceased) lord (Sahib), or to give her in marriage and take her dowry. But if she anticipated him and went off to her own people, the disposal of her hand belonged to herself.”²⁰ With the weakening of the family unity, the brother, while still called upon to look after the widow, often only retained the right rather than assume the obligation of taking her as a wife. The Jewish law furnished him, through the ceremony of the Chalitsa with the means of evading this marriage. This institution survived in Israel–as among other peoples²¹–because of two reasons. In the first place, the practice of purchasing wives rendered the widow a valuable part of the inheritance, who could not pass out of the family, and had therefore to go to the rightful heir. The second reason was the desire to preserve the name of the dead (“Velo yimacheh shemo miYisra-el”). As man’s eternal welfare in the beyond was supposed to depend upon his leaving children behind him who could perform the rite necessary for his soul’s salvation, it was the duty of the survivors to remedy the perilous state of a kinsman who died childless. Hence, what was once held to be the heir’s right of succession became a burdensome and repulsive obligation imposed on the surviving brother, who submitted to it out of a sense of duty to the deceased.²² This aversion to the Levirate marriage accompanied it throughout its development among the Jewish people. Thus, the Samaritans, who–as is well known–represent an old point of view, allowed the Levirate marriage only where the woman was betrothed but not actually married to the deceased brother.²³ Geiger has argued that this was also the position of the Sadducees.²⁴ Some of the early Karaites took the same position. Benjamin Nehavendi was the first to make the following compromise: While the betrothed is to be married by the brother of the deceased, the widowed wife (min hanisu-in) is to be married to a kinsman of the deceased, construing–on the basis of the story of Boaz and Ruth–the word achim in Deut. 25:5 not as literally “brothers,” but rather in its wider sense of “kinsmen.” Furthermore, since the Levirate marriage is bound up with the inherited land estate (i.e., in Palestine) of the deceased, the Karaites hold it no longer valid, owing to the changed conditions in the Galut.²⁵ Moreover, even the Pharisees were embarrassed by this institution. The Shammaites upheld the Samaritan view of the Levirate.²⁶ The Hillelites too, placed various restrictions upon its application.²⁷ Thus, they interpreted the reference to “ben ein lo” to mean that the law does not apply in case female as well as male offspring were left by the deceased brother. This view appears also in the Septuagint and in Josephus.²⁸ Abba Saul declares: “He who marries his deceased brother’s wife on account of her beauty or of her possessions commits an act of fornication, and the issue of such a marriage comes near to bastardy.”²⁹ This view was adopted in the Mishna: “In the former days the Levirate marriage was considered preferable to the Chalitsa, because the marriage was entered into with the sole purpose of fulfilling the law, but nowadays when this pure motive no longer prevails the Chalitsa is preferable.”³⁰ Bar Kappara shares this view.³¹ Rav and R. Judah held that it is optional with the man to marry the woman or to give her Chalitsa.³² After considerable fluctuation of opinion as to which is preferable, the Codes gave preference to the Levirate marriage.³³ This is still the practice of Oriental Jewry. A new turn was given to the question in consequence of Rabbenu Gershom’s (960-1028) interdict of polygamy for Ashkenazic Jewry. Levirate⁴ marriage was abandoned and Chalitsa took its place.³⁴ We can only see in this development the assertion of the moral repugnance of the Jewish people toward the marriage of the brother’s wife. When Dr. I.M. Wise, in 1872, solemnized such a marriage, he took the view that since the widow was childless, the marriage was imperative according to Mosaic legislation, for “whatever is made a personal duty by the Law of Moses, can at no time be wrong among Israelites.” On the other hand, “Rabbi Gershom has no binding power in this century or in this country.” In taking this position, he frankly maintained that the object of Reform must be “to lighten the burden and not to aggravate it.”³⁵ He was stoutly opposed by B. Felsenthal, who pointed out that certain “personal duties,” such as blood revenge, though forming part of the Mosaic legislation, were eventually abolished. Their practice today would, therefore, be “wrong among Israelites.” He further maintained that the marriage laws of Leviticus 18 have not lost their validity for Reform Judaism. Similarly, the ban of Rabbi Gershom holds in modern times because it expresses the moral sentiments of the Jewish people.³⁶ Samuel Hirsch, too, stressed the universal nature of these laws, emphasizing their applicability to all times and places. As to Lev. 18:16, he maintained that it is so reasonable that no European legislation permits a man to marry his deceased brother’s wife. “And shall we in America treat this law lightly?” he demanded. “Shall we perchance set the stage in our homes for tragedies of the type of the ‘Hostile Brothers’?”³⁷ B. Felsenthal’s and Samuel Hirsch’s views received the zealous endorsement of David Einhorn.³⁸ Dr. Kohler, in his aforementioned paper, discussing Dr. Wise’s attitude in the matter, has justly remarked that it can hardly be said that there is great consistency in this view. “Either the Levirate law is in force (otherwise the marriage is incestuous from the Mosaic-Talmudic point of view), or the entire law, prohibiting the marriage of the deceased brother’s wife as incestuous, has–together with the Levirate law–lost all meaning and binding force for us, and the brother-in-law may marry his brother’s widow as he may marry his deceased wife’s sister.” For the sake of consistency Dr. Kohler advocates the formal adoption of the latter alternative. However, it cannot be maintained that the desire for logical consistency can overrule the feeling of the people in the establishment of the prohibited degrees of marriage. The feeling of repugnance toward the marriage of the deceased brother’s wife has helped to safeguard the integrity of the family. Nothing has occurred in modern times to warrant the removal of this safeguard. The prohibition works hardship on comparatively few people, whereas through upholding a high standard of chastity, its moral benefits are considerable. The circumstance that the laws of our states do not forbid such marriages can have little moral weight with us, who realize all too well the imperfection of our State laws on marriage, and who for two thousand years have maintained our own high moral standards of the family, in every land in which we lived. If formal logic rather than human experience is to guide us in our marriage laws, the inequality of the law that permits a man to marry his deceased wife’s sister and forbids the marriage of the wife of his deceased brother may be more profitably removed by declaring both of these forms of marriage as incestuous. This has actually been the position of a large body of Christendom. Above all, we must guard against separating ourselves from Kelal Yisra-el as might be the result of such a radical and hardly called-for change in our marriage laws.Samuel S. CohonDiscussionRabbi Jacob Z. Lauterbach: Rabbi Cohon is a pupil of Dr. Kohler, and, in admiration of his teacher, he endorses the statement of Dr. Kohler that there was an inconsistency in Dr. Wise’s view. I have the highest regard for Dr. Kohler personally, but I cannot subscribe to this statement of his. Dr. Wise was consistent. For it should be remembered that Yibum has not been formerly abolished by any authoritative rabbinical assembly. The Shulchan Aruch still has the law that Yibum is to be preferred to Chalitsa, though it also records the other opinion that Chalitsa is preferable. A change of attitude towards this law took place in the course of time, as recorded in the Talmud Yevamot, but they finally came to recognize that Yibum is preferable. It was Abba Saul who expressed the opinion that if one marries his sister-in-law because of her beauty, and not merely because of the religious duty to raise a child for his deceased brother, such a marriage is almost incestuous. This view of Abba Saul seemed to have influenced Franco-German rabbis, and, fearing that the brother-in-law in preferring Yibum may be influenced in his decision by the beauty of his sister-in-law and not by considerations for the mitzvah, they recommended that Chalitsa should be preferred to Yibum. And among Ashkenazic Jews Yibum, except in a few rare cases, has not been practiced. But remember: It has never been abolished. So Dr. Wise was perfectly consistent in permitting Yibum, that is, the marriage of a deceased childless brother’s wife. Now, what does Dr. Kohler say? If we permit the marriage of a sister-in-law in case the brother left no children, then we should also permit such a marriage even when the brother left children. I cannot see any logical consistency in this view. The law in Leviticus unqualifiedly prohibits the marriage of a sister-in-law. The law in Deuteronomy permits, and even recommends, the marriage of a sister-in-law in case the brother died childless. We can either assume with the Rabbis of the Talmud that the law in Leviticus had reference only to cases when the brother left children; or we can, if one is antipharisaically inclined (which, by the way, is no longer fashionable), assume with the Samaritans that the law in Deuteronomy applied only to the brother’s betrothed Arusa, but not to the brother’s wife. In either case, there is no conflict between the law in Leviticus and the law in Deuteronomy. And the law in Leviticus has not been abrogated and still has its binding force. To argue that if we disregard one part of the law of Deuteronomy according to the Rabbinic interpretation which permits the marriage of a sister-in-law in case there are no children, we should also violate the law in Leviticus which according to all interpretations prohibits the marriage of a sister-in-law, at least when there are children, is, to say the least, not a very cogent argument. There is absolutely no warrant for declaring the law of Leviticus abrogated. I would much rather favor the abolition of Yibum, that is, forbid the marriage of a sister-in-law, even when the brother died childless, although the Mosaic-Rabbinic law permits such a marriage. For, after all, the Jewish ideal is “Kadesh atsmecha bamutar lecha,” to refrain from doing things even though you may be within the law in doing them. And this brings me to the discussion of the argument of “Dina demalchuta dina” which has been raised by one of the previous speakers. The principle “Dina demalchuta dina” does not mean that we must do everything that the law of the country permits us to do; it only means that we should not do what the law of the country forbids us to do. There are many things for which the law could not and would not put us into prison if we practiced them, but as Jews, as religious and moral persons, we should not practice such things. In every case when a marriage is prohibited by the law of the State, even though the Jewish religious law has no objection to such a marriage, the rabbi cannot and should not permit such a marriage. If he does, he not only violates the law of the State, but he also violates the religious law contained in the principle “Dina demalchuta dina,” which bids every Jew obey the law of the country in which he lives. But if the law of the State has no objection to a certain marriage, but the Jewish law has serious objections, the rabbi must refuse to perform such a marriage, even though a Justice of the Peace would perform the same. Not to do all that the law permits you to do does not constitute a breaking of the law. If your religious consciousness makes you close your business on Yom Kippur and refrain from any work and spend that entire day in the synagogue, do you thereby violate the principle of “Dina demalchuta dina” because the law of the State has no objection to your keeping your store open, and working or going to the baseball game on that day?Rabbi Cohon: I wanted to answer one question that was raised which may easily be dismissed. Someone wanted to know in regard to “Dina demalchuta dina.” I want to give an example. The Episcopal Church as a Church is opposed to the deceased wife’s sister marrying the husband. However, in the United States, where there are no objections in the State laws, the Book of Common Prayer, drawn up by the Episcopalian Church, states that the minister need not solemnize such marriages if his conscience does not permit him. If his conscience does permit him, he may, but they do not surrender their own ground to that. Rabbi Brickner: May I ask Rabbi Cohon what he would do in Canada, for example, where there is no State marriage, where the minister becomes an agent of the State, and every marriage, in order to be a marriage, must be solemnized by a minister of religion? If Jews came to you in such a case and ask you to marry them, and the Jewish law will not permit you, they would be compelled in those circumstances to go to an Episcopalian for marriage.Rabbi Cohon: Then let them go.Rabbi Philipson: I regret extremely that I came too late to hear Dr. Cohon’s paper. I precipitated this discussion, when, two years ago at Cape May, I brought the matter before the Conference as a very practical issue. There may be some of you who were not at Cape May, and, with the indulgence of those who were, I should like to tell what induced me to bring this matter to the Conference. In the preceding spring of that year I was asked to officiate at the marriage of a man and his sister-in-law. The brother had died; there was a son. I refused. I refused on the ground that I felt that as long as no rabbinical conference had taken any action in this matter I would not set myself up against Kelal Yisra-el and act individually. To my amazement, several months later this man resigned from my congregation for the following reason. He had written to a friend in another city. The friend consulted the rabbi of that city, who said that he would officiate at the marriage. So the couple went to that city, and were married by that rabbi. I then felt that I should bring the matter before the Conference. The committee had no report last year; they have a report this year. I heard only the conclusion, and I do not know whether I heard right, but it seems to me that the writer of the paper is of the opinion that the law should not be abolished, and if I understood Dr. Lauterbach right, he feels that we should keep up the practice of not officiating at such marriages, but not base it on the legal point at all; but–whether there are children or not–that we shall not officiate at these marriages. My difficulty is this. I am living in a different age from the ancient Palestinian. I may have a sort of abhorrent feeling against officiating at a wedding of that kind. I confess that I have; it seems to me somewhat incestuous. But if that is incestuous, then for a woman to marry her deceased husband’s brother is also incestuous, from my point of view. I cannot separate those two things. There may have been reasons in ancient Palestine for allowing a woman to marry her deceased husband’s brother while forbidding a man to marry his deceased wife’s sister. It seems to me that we must take a stand in this matter. Either we ought to declare ourselves against both marriage of a deceased wife’s sister and a deceased husband’s brother, or we ought to be brave enough to say: In the light of modern conditions we cannot retain either. That is the problem. I agree with Dr. Lauterbach that if we do it at all, we shall do it whether there are children or not, but I want to make it all inclusive.Rabbi Jacobson: I do not recognize the law. I will perform any marriage that is recognized by the State, and I would have done exactly as this man did even if I had consulted you and found out why you refused. But I want to ask this question: If you refused to marry this man on the ground of Mosaic law, then that man–by being married and living with his brother’s wife–is guilty of incest. What right then did you have to take him back into your congregation?Rabbi Philipson: According to the laws of that land that marriage is legal.Rabbi Schulman: I am very glad that Rabbi Cohon strongly recommends the retention of the present usage in Israel with respect to the prohibition of the marriage of a man to his deceased brother’s widow. You can discuss here a number of aspects of this question. The possibility of bringing about unanimity of obedience to any resolution of this Conference is impossible. The Conference is on record as opposed to mixed marriages. It adopted the resolution after a very thorough debate at a convention at which two papers were read on the subject, and yet there are individuals in this country who are solemnizing mixed marriages. We cannot help that. Our duty is to express the sincere convictions of the majority of this Conference on any question. That is, of course, a moral influence that is a guide, and as we have not yet spoken on this matter we will do so, but not–I hope–in the sense in which Dr. Philipson suggests. We cannot, of course, say that because the State allows something we must immediately go and do it. That young colleague who asked that question, if he will do me the honor and read my paper on mixed marriages, read in New York in 1911 (it is in print), he will find that this aspect of the question is discussed in that paper. “Dina demalchuta dina” does not mean that you have to do what the State allows. You can refuse, as a rabbi, to officiate, because that person can get married according to the laws of the State and his marriage is legal. But if he has enough religious conscience to ask a rabbi whether he should marry this person, teach him as a rabbi and tell him, “No.” Then it is for him to decide whether he will obey you as a rabbi or not. Your duty as a rabbi is, above all, to act according to your conscience with respect to this matter. I would like to know from Rabbi Cohon the date of the opinion of Dr. Isaac M. Wise, when he solemnized such a marriage. It is exceedingly interesting to me because Dr. Isaac M. Wise did change his opinion afterward.Rabbi Cohon: In l872. Rabbi Schulman: Long after that he changed his opinion. I will tell you why I say so. As a young rabbi in one of my earlier ministries, before I came to New York, I refused to officiate at such a marriage, when asked by one of the high officers of my congregation. He said to me: “I can go to another city and be married by a rabbi.” I said: “That doesn’t concern me. I am the guardian of my own conscience. I refuse to marry you.” I said: “Do not think I do so lightheartedly. I am very, very sorry that you did not speak of this matter to me before. I cannot do it. But I will tell you what I will do. In order to show you that I do not wish as a young man to force you to abide by my opinion or to seem to you to act arbitrarily, I will write to older rabbis–not that I for a moment expect that they will differ with me, but to show you that I am not giving you a subjective opinion.” I wrote to Isaac M. Wise, Felsenthal, Mielziner, and to Gottheil, with whom I had personal relations. I got four letters from these men, saying that my stand was absolutely right, and that they were glad that I had the courage to do what I did and the humility of asking an opinion of older rabbis. Therefore, I know that at that date, long after 1872, Isaac M. Wise was clear in his own mind. Now I believe that this prohibition should be upheld. When this gentleman whom I refused to marry asked me, “Are we not Reform Jews, have we not changed and abolished many Mosaic laws? Who then shall decide which shall be kept and which shall not?” I said: “Reform Judaism does not abolish laws lightly; it does not change laws merely to make life convenient for people. When it abolishes an old law, it abolishes it because of an ethical motive, whether correctly or mistakenly. It says that this law no longer expresses our own ethical feeling. But suppose Reform Judaism still feels that the ethics which is in this law appeals to it; it does not abolish it. I feel that way as your rabbi, and I agree with those men who feel that this prohibition should still be maintained.” The man married. His marriage was legal. I will answer directly the question of Rabbi Jacobson. The man remained in the congregation. It never entered his mind to leave. As to putting him out of the congregation–that is an entirely different matter as to what should compel expulsion of a member from a congregation, as our congregations are at present constituted. We all maintain the sanctity of Yom Kippur. To my horror, there is the growing custom of people attending to their business on Yom Kippur. Shall we say that we shall expel these people from the congregation? That is a practical question, and let me tell you that it is a question many an Orthodox rabbi would have difficulty in answering. It is not for me to enforce my decisions upon this man in the form of an excommunication; that is what expulsion from membership would mean. As a rabbi, I have told him the law, have made him feel uncomfortable. I am not his judge, and I socially continued my relationship with him, but my record was complete and consistent, and in the end he had respect for me. We are not ready to excommunicate our people for every violation of the law. Does the ethics in this prohibition still appeal to us? Most decidedly it does; therefore, we should retain it. The prohibition has for us–at least speaking for myself–ethical force, and I will never perform such a marriage, even if this Conference should allow me. Now, with respect to Dr. Philipson’s suggestion, I would say: He is quite right, logically; but life is not logical. It is quite true that if there is that sense of repugnance, and if there is that feeling about the continued ethical validity of this prohibition with respect to the marriage of a widow to her deceased husband’s brother, then–analogously–that feeling ought to exist with respect to the marriage of a man to his deceased wife’s sister. But we are not making new laws. I would have no objection; but just imagine what that would mean–today in American Israel–if you undertook to legislate and extend your prohibitions. It might have a tremendous influence upon the strengthening and deepening and heightening of the spiritual authority of the rabbinate. But because I am not prepared to make new legislation, that does not by any means mean that I should deliberately abolish a prohibition the ethical sanction of which I still feel in my own heart. Now, as to the hardship, there is this to be said. The older I become, the more I feel that to be a loyal Jew and to maintain the religion of Israel with its sanctities in the midst of a large overwhelming non-Jewish environment is impossible without some kind of sacrifice and without some kind of hardship. And if this Conference would envisage this side of the problem once for all, perhaps it might mean a new epoch in the history of modern Judaism. If our people were impressed with the fact that we, the representatives of our great historic religion, have the courage to ask them to make some sacrifice sometimes for this religion, I think it would heighten our influence and it would impress their imagination; because for something for which you never make a sacrifice you eventually come not to care for at all. Therefore I say, by all means maintain this prohibition. Now, if this Conference maintains this prohibition, that will not prevent some individuals from going and doing what they like. That we cannot help. And still I am hopeful and optimistic enough, and have that confidence in human nature, that if we have the courage of our conviction, eventually our moral influence will grow and grow, and then it will come about that a man will be ashamed to act deliberately against the formal expressed opinion of the overwhelming majority of his colleagues; and if he is not ashamed, we shall have created a Jewish public opinion in this country which will make him ashamed. I therefore hope that the prohibition will be maintained, and that we do not weaken the possibility of our expressing a fairly unanimous opinion for the maintenance of this by bringing in this new point of view by new legislation.NOTE:This question is a very complex one. The discussion in the CCAR Yearbook (vol. XXXV, 1925, pp. 364-379) is very lengthy, annotated, and of opposing opinions, each stated by revered and respected teachers within Reform Judaism. This discussion, based upon traditional interpretation of Halacha, affirms the conclusion of the traditional rabbis that there is a prohibition against the marriage of a man to his deceased brother’s widow. This opinion has evidently remained as accepted practice within Reform, even though Rabbi I.M. Wise did not abide by it, and solemnized such a marriage in 1872. He followed the Biblical commandment found in Deut. 25:5-6. The decision rendered in 1925, affirming the prohibition of the Levirate marriage, required re-evaluation and quite possibly reinterpretation.Responsa Committee (1980) NOTES:1. Gen. 20:12; cf. II Sam. 13:13 and Ezek. 20:11.2. Gen. 29.3. Ex. 6:20.4. II Sam. 16:215 I Kings 17-22. “Such unions were still common in Jerusalem in the time of Ezekiel (XXII, 10), but they were offensive to the higher morality of the prophetic religion” (W.R. Smith, Kinship and Marriage, 1903, p. 1 10) .6 Through marriage husband and wife are united into “one flesh” (“levasar echad”). Accordingly, the son’s wife is considered as a daughter, and the brother’s wife as a sister. See Maimonides, Moreh, 3.49; “Vecha-asher neesra ha-achot ne-esra achot ha-isha ve-eshet ha-ach.” B. Felsenthal, “Beitraegezum Verstaendnis der biblischen Ehegesetze,” Jewish Times, July 12, 1872.7. Deut. 25:5-6: “Ki yeshew achim yachdav umet echad mehem uven ein lo, lo tihyeh eshet hamet hachutsa le-ish zar. Yevamah yavo aleiha ulekachah lo le-isha veyibema. Vehaya habechor asher teled yakum al shem achiv hamet, velo yimacheh shemo miYisra-el.”8. Similarly Jonathan renders Lev. 20:21 by “itat achoi becheivei.”9. Vol. III, pp. 207-220, 261-266.10. Vol. II, pp. 263-34111. Studies in Ancient History I, pp. 109-114.12. Kingship, pp.- 85ff13. Nachtrichten der Kgl. Gesell. der Wiss. zu Goett., 1893, pp. 460ff, 474ff, and 479ff. 14. Die sozialen Verhaeltnisse der Israeliten, 1899, pp. 28ff.15. Hebraeische Archaeologie, 1894, p. 134.16. Semitic Origins, pp. 66ff.17. International Critical Commentary, Deuteronomy, pp. 284-285.18. Op. cit., p.33919. Op.cit. 20. Cited by W.R. Smith, op. cit., p. 105. Compare the symbolical act spoken of here with Ruth 3:9.21.Frazer, Op. cit., 341n.22. Op. cit., p.34023. Kid. 75b-76a: “Shehem meyabemim et ha-arusot ufoterim et hanesu-ot”; Yer. Gitt. 1.4; Yev. 1.6, and Masechet Kutim, end.24. Geiger, Kevutsat Ma-amarim, Warsaw, 1910, p. 87; “Die Levirate Ehe,” Juedische Zeitschrift I, 28f.25 Ibid., Aaron b. Eliyahu of Nikomodio, Gan Eden, ch. 30: “Ata bagalut, keivan she-ein lanu yeshivat yichud benachala, ein lanu chiyuv hayibum”; Solomon Troki, “Apiryon” in Neubauer’s Geschichte des Karaertums (Hebrew Part), pp. 54-55; Pisker, Likutei Kadmoniyot II, pp. 66ff.26. Yer. Yev. 1.627. Sifrei, Ki Tetse, 288ff; Mishna and Gemara, Yevamot; also Shulchan Aruch, Even Ha-ezer, Hilchot Yibum.28. Ant. IV.8, no. 23; comp. Mark XII:l9. Philo makes no reference to the Levirate in his discussion of prohibited marriages. Special Laws (Younge’s transl.), III, pp. 303.29. Tos. Yev. VI:9: “Haba al yevimto leshum noy uleshum nechasim, harei zo be-ilat zenut, vekarov havalad lihyot mamzer.” Yev. 39b quotes this saying in a different version: “Hakones et yevimto leshum noy uleshum ishut uleshem davar acher, ke-ilu paga be-erva, vekarov ani be-einai lihyot havalad mamzer.”30. Yev. 39b: “Mitzvat yibum kodemet lemitzvat chalitsa, barishona shehayu mitkavenim leshem mitzva. Achshav she-ein mitkavenim leshem mitzva, ameru mitzvat chalitsa kodemet lemitzvat yibum.”31. See also Ket. 64 and Bechorot 13. See Tosafot, Yev. 39b (referring to Ket. 64): “Ein kofin… i ba-ei chiluts i ba-ei yibum.” 32. yev. 39b.33. The Shulchan Aruch, Even Ha-ezer, Hil. Yibum still follows the same view.34. See Kohler, op. cit., p. 369, and Loew, Eherectliche Studien 74-78. Caro writes: “Rabbenu Gershom hecherim al hanose al ishto aval biyevama lo hecherim.” (And in the Hagahot: “Omnam yesh cholekim, usevira leih decherem Rabbenu Gershom noheg afilu bimkom mitzva vaafilu bimkom yibum, vetsarich lachalots,” Even Ha-ezer 1.10). See also Holdheim Ma-amar Ha-ishut, p. 18.35. American Israelite, July 12, 1872. Dr. Wise argued that if it is abolished, it is because (1) it is a penalty, and the Mosaic penal code is no longer in force; and (2) it is a mere mockery of an ancient law without any effect. “The conception of Chalitsa as a penalty can hardly be substantiated by a careful consideration of the matter.” In an editorial (ibid., July 12) he advanced this somewhat casuistic argument for the non-validity of the ban of R. Gershom: The Portuguese or Spanish Jews never submitted to it, and since they ‘were in America and established congregations prior to the German Jews” it follows that “in customs and usages, those of the Portuguese, according to the Orthodox sect, have the authority of priority.”36. “Beitraege zum Verstaendnis der biblischen Ehegesetze,” Jewish Times, July 12 and 19, and August 2, 1872. At the end of his exhaustive paper, Dr. Felsenthal exclaims: “Behuete uns ein Gott in Gnaden vor solch einer Reform, die selbst in Punkt der Sittlichkeites den Leuten ‘leicht machen will!”’37. “Das Gesetz ueber verbotene Ehen kuendigt sich als ein allgemein menschliches, von keiner Zeit und von keiner Lokalitaet abhaengiges an! Egypten und Kanaan wird es (Lev. 18:3) zum argen Vorwurf gemacht, dass sie diese Verbote nicht beachteten. Gerade weil sie diese Verwirrung aller sittlichen Verhaeltnisse duldeten, hat das Land seine Bewohner ausgespieen (18, 24 und 25). Dieses Gesetz ist so vernuenftig, dass keine europaeische Gesetzgebung die Ehe mit der Frau der Bruders Zulaesst. Und wir in Amerika sollen mit diesem Gesetz leichtsinning umgehen? Sollen wir vielleicht in unsern Haeusern Tragoedien nach dem Muster der ‘feindlichen Brueder’ zur Auffuehrung bringen? Auf die Reinheitunserer Familienbeziehungen, unserer Familienliebe setzten wir bisher unseren ganzen Stolz. Der Bruder sollte den Bruder bruederlich lieben koennen und auch die Veranlassung zur Eigersucht sollte ausgeschlossen bleiben!” (Jewish Times, July 19, 1872) In his answer to Dr. Elkan Cohn (Jewish Times, August 2, 1872) he writes: “Aber weshalb ist es denn erlaubt, die Schwester der verstorbenen Gattin zu heiraten? Nun, das Gesetz setzt voraus, dass die unverheiratete Tochter im Hause ihres Vaters “beveit aviha” lebt; sie hat keine Gelegenheit, im Hause ihrer Schwester stoerend einzuwirken. Und gerade diese Stoerung ist (Lev. 18:18) ausdruecklich verboten. Fuer die mutterlosen Waisen dagegen sieht das Gesetz allerdings die Tante als die beste Mutter an.”38. Jewish Times, August 9, and September 27, 1872. His articles were written in reply to Dr. Elkan Cohn’s letters to the Jewish Times of August 2, and September

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