Marrying Apostate Daughter of Jewish Mother

A child, an immigrant from Germany, the daughter of a Gentile father and a Jewish mother, was con verted in time of danger to Christianity. She now wishes to marry a Jewish boy. Must such a girl be converted to Judaism before this marriage can take place? (From Rabbi Herman E. Schaalman, Chicago, Illinois)

This young woman’s status is open to two doubts. First, she is the child of a mixed marriage. Second, she was converted to Christianity by her parents.

As to the natural status of the child, aside from her present religious affiliation, there is no question in the law that a child of a Christian father and a Jewish mother is a Jewess. This is clear from the Talmud (b. Yebamoth 45b and Kiddushin 68b and the codes; see especially Shulchan Aruch, Even Hoezer 4 : 5, 4 : 19). Such a child, as far as her birth is concerned, is therefore Jewish and she may marry a Jew.

Although undoubtedly the general opinion of the law is that a child of a Jewish mother and a Christian father is Jewish, yet notice must be taken of some legal opinions which, while they do not doubt this general Jewish status of such a child, nevertheless mention some restrictions.

First, there is the opinion that such a child, although she may marry a Jew (an Israelite), may not marry a priest (a Cohen). This is stated definitely in the Shulchan Aruch (Even Hoezer 4:5). However, this is a minority opinion. The Pis-che Teshuva (Z’vi Eisenstadt) immediately cites a mass of contrary opinions. In fact, even those who hold to the opinion that such a child may not marry a priest grant that if, however, she is married to a priest, the marriage is valid and we do not require them to part. This, for example, is the opinion of Solomon Luria (sixteenth century) in his Responsum # 17. Samuel of Furth (“Bes Shemuel”) to the Shulchan Aruch (ad loc.) agrees with this opinion, and the latest authority, Epstein (Aruch HaShulchan, ad loc), likewise says that if she is married to a priest, the marriage stands.

The more serious restriction to the status of the child of a Jewish mother and a non-Jewish father goes back to Rashi, who, speaking of such a child (in his commentary to Kiddushin 68 b ), implies that he or she, though having the religious status of his or her mother, must nevertheless go through the process of conversion to Judaism. He says something similar in his Bible commentary (to Leviticus 24 : 10), where the text speaks of a son of an Israelite woman and an Egyptian father, who went forth “in the midst of the children of Israel.” Rashi says that his “going forth into the midst of the children of Israel” implies that he consciously entered membership in Israel by a process of conversion. This opinion of Rashi’s is based on the Torath Cohanim (ad loc). However, this opinion is confuted and explained away by almost all the authorities who deal with it.

For example, Nachmanides in his commentary (ad loc.) says that all that Rashi meant was that this child of an Egyptian father had joined the rest of Israel when they were all circumcised and bathed before the Revelation at Mount Sinai. This was, indeed, similar to the process of conversion, but all of Israel went through with it. Then Nachmanides says that the French rabbis explained Rashi’s statement as follows: Before the giving of the Torah (when this particular child was born), the status of such children was different from what it was after the giving of the Torah. In those days such children followed the status of their father, and therefore the child needed to be converted. (The implication being that now, after the giving of the Torah, the child follows the status of the mother and does not need to be converted.) Also, Elijah Mizrachi to the Torah refutes Rashi’s unusual opinion. (See also Schach and Taz to Yore Deah 268 : 10, 11.) The bulk of later scholarship agrees with Nachmanides and Mizrachi that such a child needs no formal conversion. For example, Ezekiel Landau, in his second volume (#150, near the end of the responsum), says that the child is Jewish in every sense and needs no conversion. The fullest discussion of the question is in “Chemdas Shelomo,” by Solomon of Posnan, Even Hoezer 3 (Warsaw, 1836), who proves from the earlier scholars that the child may marry a priest, which in itself is proof that the child does not need to be converted, because the priest cannot marry a convert. Furthermore, if the mother is a Levite, the child does not need Pidyan ha-ben. This proves that the child is Jewish and shares in her privileges as a Levite.

It is therefore clear that a few minor doubts about the status of the child with regard to her marrying a priest, and Rashi’s unusual opinion (or apparent opinion) that the child would need to be converted, have no weight compared with the main attitude of the law, which is expressed by Ezekiel Landau in the responsum quoted above: The child is a Jewess and is eligible to participate in every sacred status. “Kosher l’chol dovor sh’b’kedusha.”

However, this young woman was also converted to Christianity. This fact raises the question anew whether she should therefore be required to follow some ritual of conversion. The question now comes to this: If an apostate wishes to return to Judaism, is it required that such an apostate go through some process of conversion? Moses Isserles to Yore Deah 268 : 12, says that by actual basic law (m’d’oraiso) such a revert (Ba’al Teshuva) is not required to take the ritual bath (of conversion), but by cautionary law (m’d’rabbanan) it may be that he should bathe and promise in the presence of three to be obedient to the law (the latter based upon b. Bechoros 31a). This rabbinical caution is based upon the opinion of Joseph Ibn Chabib to Alfasi, Chapter IV of Yebamoth. However, Abraham Abele Gombiner (“Mogen Avrohom”) to Orah Hayyim #326 (at the end of n. 8) is careful to remind us that this requirement is not strict law. As a matter of fact, most of the leading authorities would not require it at all. Two examples should suffice, one from the relation of the law to the Marranos who came out of Spain and Portugal, and the other to the reverts in the Rhineland after the Crusades.

With regard to the Marranos, there is a full responsum by Solomon ben Simon Duran (Rashbash #89), who definitely says that these are Jews to all the generations. They are not proselytes to Judaism (but Jews by birth) and therefore are not required to take the ritual bath. Nor should we enumerate to them all the commandments (which must be done to actual proselytes to guard them against taking their conversion too lightly). The case of a revert is not a conversion at all. Solomon Duran emphasizes his opinion by saying: “We must do nothing to terrify them or discourage them but attract them by kindness; for they are still under the covenant sworn at Mount Sinai.” He adds too that “our rabbis in France say that a Jewish apostate who returns requires neither ritual bathing nor a formal reception.”

The second example is a famous responsum of Rabbenu Gershom, “Light of the Exile,” given in “Machzor Vitry” (pp. 96-97). There he discusses an even stricter question than the one involved in this case. The question asked of him was whether a Cohen who had become an apostate and later repents may bless the people and may have the privilege of being called as the first reader to the Torah. And he says, of course he may, and, furthermore, he warns the people: “Do not ever say to him, ‘Remember your past actions,’ for if you say such things, you will be discouraging apostates from doing repentance.”

Thus it is clear that the general attitude of the law is that no ceremony of conversion is required; in fact, a ceremony would be wrong because it would imply that a child born of a Jewish mother is not Jewish, which is an incorrect implication.

The mood of the law is clear, that such a revert must be treated generously and must be accepted at once; but even more important, in the case of this young woman, is that the fact of her having been a Christian is actually irrelevant to the specific question involved, namely, her marriage. The Jewish law is clear in its distinction between the status of unrepentant apostates with regard to the mitzvos (such as being called to the Torah or being counted to a minyan) and their rights as to marriage and divorce. In matters of marriage, even an unrepentant apostate retains his rights completely. His Jewish wife, for example, cannot marry another man unless he (the apostate) gives her a Jewish divorce, and his marriage to a Jewess is a Jewish marriage (Kidushov Kiddushin). The distinction between other mitzvos and the special privilege in the marriage relationship is clearly stated by the Gaon Saadia (“Ozar Ha-Geonim,” Yebamos 474), namely, that with regard to other mitzvos we judge a man according to whether he observes the Sabbath, but with regard to marriage and divorce, it all depends upon his birth.

Thus this young woman, being born a Jew, may be married to a Jew even if she has not formally reverted to Judaism. But this, of course, would be against public policy. Since, however, she declares her willingness to be Jewish, that is sufficient. She must be accepted as a Jewess without any ritual of conversion, and the marriage ceremony may be performed without any doubts.

LETTER ON A SIMILAR SUBJECT

(To Mrs. S. M. B., Forest Hills, New York)

DEAR FBIEND:

Let me repeat your question so that I know that I get it clearly. The young man that your daughter is to marry is the child of a Jewish mother and a Gentile father. He was baptized in his childhood for his protection under the Hitler regime and never was circumcised. I believe I am right in assuming that the fact that he was not circumcised was likewise for his protection. You ask whether, considering his status, your daughter and he may be married in the temple.

First, I assure you that whether or not the wedding takes place in the temple has no relationship to the Jewish status of your daughter’s fiance. In the Rhineland in the fourteenth century, the weddings took place in the temple, as we know from the great Rabbi of Mainz, “Maharil.” Since his time, however, the tendency of Orthodox law has been against this clear custom. Sometimes in Europe the wedding takes place in the open air, as Moses Isserles, of Cracow (Poland, sixteenth century), recommended. Generally it is held in a home or a hall, but among the strict Orthodox, never in the synagogue.

Therefore, even if there were no question as to the family eligibility of the young man being married by a rabbi, the question of marriage in the synagogue is irrelevant. A couple both of whom are of Jewish descent and of complete Orthodox piety could not be married in the synagogue according to the tendency of Orthodox law of the last two centuries. With regard to Reform Judaism, we follow the older custom and do occasionally have marriages in the synagogue (see Reform Jewish Practice, I, 85-86).

Therefore, whether or not the marriage should take place in the synagogue is of no essential importance. The question is whether the rabbi can officiate at all. The young man has a Jewish mother and, according to Jewish law, in all mixed marriages the child follows the status of his mother. The fact that he was baptized (especially for his protection) and the rite of circumcision neglected, does not lessen his status as a Jew in the marriage relationship. An Orthodox decision in this matter would require him to be circumcised, which might in general be advisable because, while the duty of circumcision is incumbent upon a father, nevertheless, if that is neglected by the father, the rabbinical court does it. Finally, it is incumbent upon the person himself when he grows up to see that he is circumcised. However, I would not insist, because in Reform Judaism, even when we accept proselytes of full Gentile descent, we do not make circumcision an indispensable prerequisite to conversion.

But the young man does not need to be converted. He is in all marriage relationships considered to be a Jew. There is, however, one fact that you neglected to tell me with regard to your daughter. Is she the daughter of a Jewess? In other words, are you Jewish by birth or by conversion? If you are Jewish by birth or conversion, your daughter follows your status and she is Jewish, and there is no reason why this couple cannot be married by a rabbi. The idea that a wedding in the synagogue has a different status from that of a wedding elsewhere is possibly derived from Catholic influence in which usually only weddings of certain canonical status take place in the church proper, others in other parts of the building. With us that has no bearing. In Orthodox law, weddings took place in the synagogue in the fifteenth century. Now, according to law, none of them do. In Reform Judaism we are free in this regard to follow the older custom as we wish.

In brief, if your daughter is of Jewish descent she may certainly be married in the synagogue.