REFORM AND MAMZERUS

QUESTION:

The law in South Africa allows a man to marry his brother’s divorced wife. Such a marriage was contracted and a child was born of it. But according to the Halachah, a man may not marry his brother’s wife (Leviticus 18:16), hence the child is a mamzer. Does Reform Judaism adhere to all the strict Orthodox laws against the rights of mamzerim? (Asked by Rabbi Isaac Richards, Temple David, Durban, South Africa.)

ANSWER:

THERE IS NO doubt that according to the Halachah a man may not marry his brother’s wife. This is clearly stated in the list of prohibited marriages which are considered incestuous in Leviticus 18:16. Yet even this marriage, which is counted as incestuous, can sometimes not only be permitted, but is even considered to be a religious duty. That would be in the case where the brother dies childless. So it is clear that this prohibited marriage is somewhat different in its essence than the other prohibited marriages listed in Leviticus. However, since the brother did not die childless (at least I assume so), then the marriage is indeed a prohibited one and the child is a mamzer. The essential question asked is, what is the attitude of Reform Judaism to such a child?

First, it is necessary to clear up certain misapprehensions about the status of the mamzer in traditional Jewish law and life. A certain Gentile novelist, who wrote a novel about ancient Israel, described the mamzer as being an outcast, a pariah, scorned and rejected by all. This is far from the case.

The actual status of the mamzer in Jewish law is as follows: Scripture says (Deuteronomy 23:3): “He shall not enter the congregation of the Lord.” The word ” congregation” here means, of course, “community,” and it means specifically that he may not marry into a legitimate Jewish family. But even this prohibition is limited. He may marry a convert because converts (at least in the first generation) are considered to be a separate kahal or “congregation,” and into this congregation of Jews, he may marry.

This prohibition of marriage is the only disability which a mamzer endures. For example, he is entitled to be a witness in the Jewish courts (kosher l’edus) (Choshen Mishpot 34:21). He may be circumcised, even on the Sabbath (Yore Deah 265:4), where the explanatory statement is made, “A mamzer is like any other Israelite”. He may be called up to read the Torah before the congregation (Orach Chayim 282:3, note of Isserles). If his brother dies childless, he is in duty bound, like any “legitimate” brother, to marry the widow or give her chalitza (Mishnah Yevamos 2:5, explained in the Talmud, Yevamos 22a). When the father dies, he is an equal heir with the other “legitimate” brothers (Mishnah Yevamos 2:5, Talmud Yevamos, ibid., which makes the statement that he is a brother in every respect— ochiv l’chol dovor —and this is codified in the law as in Choshen Mishpot 276:6). And, of course, aside from all these rights, the statement is well known (Mishnah Horayos 3:8): “A learned mamzer is deemed superior to an ignorant High Priest.”

So from the above it is clear that even in the strictest Orthodox law, except for the right to marry into a regular family, a mamzer has all human and Jewish rights. Thus, if the question were asked of the strictest Orthodox authority, the above would be the answer. Indeed, under certain special circumstances, it is conceivable that Orthodox authorities would also remove any stigma from this girl. The best-known Orthodox authority in the United States, Moses Feinstein, was faced with the fact that a young woman had been divorced in the courts and could not secure a get from her husband (who was unavailable). Feinstein found out that the girl had been married by a Reform rabbi, and so he decided as follows: The marriage ceremony conducted by a Reform rabbi lacked the presence of kosher witnesses (Sabbath observers, etc.), therefore the marriage was null and void, and the young woman did not need a get at all (Igros Moshe, Even Hoezer, new series). So if the brother who was the first husband had been married by a Reform rabbi, Moses Feinstein might, in an emergency at least, declare that marriage void, and therefore the wife was not really a wife and could very well marry the brother, and the little girl would not be a mamzeres at all. But this decision of Moses Feinstein is a bold and a dangerous one.

Now the question asked is: What would be or should be the attitude of Reform Judaism as to the status of this child born of the above-mentioned marriage? We must consider the fact that Reform, from the very beginning, took a bold, revolutionary attitude in the field of marriage when it accepted the full validity of civil divorce. Orthodoxy, which does not consider any Jewish marriage dissolved without a valid Jewish get, would consider any marriage undertaken by a woman after a civil divorce an immoral marriage and utterly invalid. Therefore, the children of the second marriage are mamzerim in Jewish law. At this stage in Jewish social history, it is not only among Reform families, but there are innumerable numbers of other families in which there has been a remarriage without a Jewish get. Who, now, would dare to declare perhaps half of western Jewry to be technically illegitimate? Even Orthodox rabbis, unless the matter is plainly and inescapably put before them, would not hesitate to marry any average Jewish couple.

In actual historical effect, Reform has led the way to removing the stigma of mamzerus from countless Jewish individuals. You might say, therefore, that without openly declaring the principle that the concept of mamzerus is no longer operable today, Reform has simply taken no notice of it. Of course, perhaps in Reform we should be hesitant in ignoring such mamzerus as is due to actual incest. But perhaps, even so, we should consider the child innocent. But certainly in such cases where no actual incest (i.e., not of consanguinity but only of affinity) is involved, Reform follows the principle in the Talmud Kiddushin 76b that “all families are presumed to be kosher.” Of course, this means that they are presumed to be kosher unless the question is formally raised about them, which, as far as we are concerned, we will not do.

To sum up: The child in question is indeed in Halachah a mamzeres, but even so, as we have seen, she has in the Halachah every right of a Jewish child except that of marrying into a regular family. Reform, which has removed the stigma of remarriage without a get, certainly would not allow this stigma to be put upon the child.

Addendum

Moses Feinstein is not the only American Orthodox authority who denies the validity of Reform marriage. Menashe Klein, dean of a yeshiva in Brooklyn, in Vol. VII of his Mishne Halachos (Even Hoezer #214) likewise declares Reform marriages invalid. Whereas Feinstein was concerned with a woman who could not obtain a get, Klein is concerned with the subject of our discussion, namely, mamzerus.

He was asked by a scholar in Jerusalem whether it is permissible to officiate at marriages in which one party or both are of Reform Jewish families. He answers that the problem involved is due to the fact that Reform Jews accept the validity of civil divorce, while according to Jewish law a civil divorce is not a divorce at all. Therefore, if the woman was civilly “divorced” and remarries, the marriage is not lawful according to Jewish law, and the children born of this second “marriage” are mamzerim, who therefore may not marry into a normal Jewish family.

However, he does not believe that this taint of mamzerus is a serious obstacle to marrying people of Reform families. First of all (he says), the majority of families do not divorce, and as to the minority which has divorced in the courts, an official public record is available of those proceedings, and such families can be, therefore, easily identified.

Then he goes further and uses a rabbinical phrase which may be freely translated as follows: “Their disadvantage redounds to their advantage.” What he means is this: Since Reform marriages lack kosher witnesses, they are invalid, which is the same statement as made by Moses Feinstein (a “kosher” witness is one who obeys the Torah laws and the Rabbinic laws; cf. Choshen Mishpot 34:2-3 and Isserles). Therefore, he says, the first marriage was not valid, and the woman who was divorced in the civil court never needed a divorce at all, and therefore her so-called second marriage is really her first marriage and the children are not illegitimate.

In other words, the implications of the denial of validity to Reform marriages by both Feinstein and Klein really amount to this: that there is perhaps less mamzerus in the Reform Jewish community than in some other sections of the Jewish people. In fact, Klein in responsum #211 says specifically, for the aforementioned reasons, that Reform families are to be considered legitimate and marriageable with pious Jewish families (p. 139, top of col. 2).