RR21 no. 5759.8

CCAR RESPONSA COMMITTEE 

5759.8

A Blind Person as a Witness

She’elah.

From a traditional and from a Reform perspective, may a blind person serve as a witness at a wedding? (Rabbi Joseph Forman, Elkins Park, PA)

 

Teshuvah.

We say “yes” to this question, though traditional halakhah would likely answer it in the negative. Maimonides includes the blind among the ten persons disqualified from serving as witnesses before a court.[1] The exclusion, he tells us, is Toraitic, derived by way of a midrash on Leviticus 5:1. The verse speaks of a public adjuration (kol alah) imposing a requirement to testify upon “one who has either seen or learned of the matter.” Since blind persons have not “seen” the matter, they are exempted from the responsibility of giving testimony upon it.[2] The ceremony of betrothal (kiddushin), if it is to be valid according to Jewish law, must occur in the presence of two witnesses[3] who see the transfer of the ring from groom to bride.[4] These witnesses must meet the standards of eligibility demanded of all witnesses; should either or both of them be among the ten “disqualified witnesses” (pesulei edut) mentioned above, it is as though no testimony exists and the wedding is invalid.[5]

Our contrary viewpoint is based upon the following three arguments. First, it is quite possible that the halakhah recognizes the validity of a marriage even when the wedding ceremony is conducted in the presence of ineligible witnesses. Second, despite the description of the law in the preceding paragraph, a case can yet be made that blind persons are not to be disqualified from serving as witnesses to a wedding. And third, as Reform Jews we endorse the general tendency of Jewish law to include the blind in religious life to the greatest extent possible.

  1. Valid Testimony Without Qualified Witnesses. Our first point is the subject of a responsum by R. Moshe Sofer (“Chatam Sofer,” d. 1839).[6] The case concerns a wedding at which the officiating rabbi (the mesader kiddushin) designated himself and the local synagogue sextant (shamash) as the witnesses to the ceremony. Some weeks later, the rabbi discovered that the shamash was a relative of the bride and hence disqualified to serve as a witness concerning her.[7] Should he require that a second wedding ceremony be held in the presence of two qualified witnesses, or is it sufficient that the first ceremony was conducted in the presence of a large assembly of people (including a number of rabbis) who, though they did not witness the actual exchange of the ring (the ma`aseh kiddushin), could at least testify that a wedding ceremony did take place? Sofer responded that the wedding ceremony was valid on the basis of the concept anan sahadei (“we are all witnesses”).[8] Since the couple entered the chupah in the presence of numerous qualified witnesses–among whom were the rabbi and other individuals knowledgeable of the law–with the obvious intention to marry, and since the couple left the chupah under the unchallenged presumption (chazakah) that they were married, “then surely ‘we are all witnesses’ to the fact that a valid act of kiddushin took place, including the transfer of the ring and the proper verbal formula, following the instructions of the officiating rabbi who is knowledgeable of the laws concerning marriage.” The fact that one of the designated witnesses under the chupah turned out to be ineligible does not invalidate this testimony, based upon the common knowledge of the wider community.[9] Similarly, R. Yosef Eliyahu Henkin, one of the outstanding twentieth-century poskim in the United States, ruled that if no witnesses are present at the wedding, the marriage of two Jews is still valid according to halakhah by virtue of the fact that they live together in public as husband and wife. Thus, “common knowledge” is sufficient testimony that a wedding has taken place and that a marriage exists.[10]“Common knowledge” also suffices to establish a valid marriage in cases where the witnesses do not actually see a vital aspect of the transaction. For example, it is a custom in some circles for the bride’s face to be veiled during the wedding ceremony. The question is raised: since the witnesses in such a case do not actually see her face, how can they identify her as the bride, the one who accepted the kiddushin from the groom? Is a second act of kiddushin required to validate the marriage? Some say “yes,” that the marriage cannot be declared valid when the witnesses did not actually see the bride’s face.[11] Most authorities, however, side with the author of the commentary Avnei Milu’im,[12] who holds that such testimony is valid.[13] He writes: “we require the testimony of witnesses to a wedding only in order to make the fact of the marriage public knowledge, so that neither party can deny the wedding took place.” Since the identity of the wife will become public knowledge as soon as the wedding is ended, it is as though the witnesses had seen her at the actual moment of kiddushin. The presumption (chazakah) that the wife was in fact the one standing under the chupah substitutes for actual eyewitness testimony.[14]

    Thus, while testimony (edut) is an absolute requirement for determining the legal validity of a wedding, this testimony may be established by “common knowledge” as well as by the presence at the wedding of two “kosher” witnesses. The authors of these rulings do not, of course, mean to say that it is perfectly permissible to invite disqualified witnesses to perform that function at a wedding. These cases involve situations that are bedi`avad, “after the fact.” In principle (lekhatchilah), these authorities would demand that the officiating rabbi make sure in advance of the wedding that the witnesses are qualified under halakhah to give testimony. Yet so long as it is “common knowledge” that the couple have married, we need not demand the testimony of two qualified witnesses in order to declare their marriage valid.

  1. The Blind As Qualified Witnesses. Although, as we have seen, Maimonides rules that the blind are disqualified as witnesses on the basis of Torah law, the Talmud offers an alternative theory as to their disqualification. We find this in BT Gitin 23a, which discusses the Mishnah’s ruling that a blind person is not permitted to act as the agent for transporting a bill of divorce (get) from the husband to the wife.[15] The Talmud inquires as to the reason for this disqualification. Rav Sheshet responds: “because a blind person cannot tell from whom he receives the get and to whom he gives it.” His colleague, Rav Yosef, rejects this argument: “if so, then why is a blind man permitted to live with his wife? Surely this is because he recognizes her voice; in the case of a get as well, a blind person might be able to identify the sender and receiver by their voices (and thus be eligible to transport the document).” Rather, concludes Rav Yosef, this mishnah deals with a get sent to the land of Israel from the Diaspora; in such a case the agent must be able to testify that “this document was written and signed in my presence.”[16] That is, the blind person is disqualified simply because this particular agency requires that the agent actually see the persons who commission the get. The implication is that a blind person might well be accepted as a witness to matters upon which he can speak reliably and that do not require eyewitness knowledge. This conclusion, writes R. Barukh Halevy Epstein (d. 1942), runs directly counter to that of Maimonides. According to the latter, the Torah disqualifies the blind from serving as witnesses simply because they cannot see; a blind person may therefore never testify, even to matters that do not require eyesight. By contrast, should we follow the approach taken in Gitin 23a, we might conclude that “there is a logical basis (sevara) to say that a blind person may testify” on matters that can be established by means other than eyesight.[17]We agree with this logic. Since it is not absolutely certain that Maimonides is correct–that the Torah disqualifies the blind from testifying on all matters–there does not seem to be any good reason to deny them the right and the duty to serve as witnesses in matters that do not require eyewitness testimony. A wedding partakes of this latter category. Although a blind person cannot see the wedding transaction, so long as he or she recognizes the couple by their voices, can follow the exchange of rings by touching their hands during the moment of kiddushin, and can hear them recite the formulae of marriage (harei at/ah mekudeshet/mekudash etc.), he or she can reliably testify that a wedding has indeed taken place.
  2. Inclusion of the Blind in Jewish Religious Life. We should remember as well that Jewish law does not as a general rule seek to exclude or exempt the blind from the circumference of religious obligation. Despite the view of an early rabbinical authority to the contrary,[18] the accepted halakhah requires the obligated to fulfill the mitzvot, exempting them only from those duties and experiences that require eyesight.[19] Concerning those exemptions, moreover, the tradition has demonstrated that it is capable of change, bringing the blind into the orbit of an observance from which they were originally excluded. The question whether a blind person may be “called up” (given an aliyah) to the public reading of the Torah is a case in point. Originally, those who were called up to the Torah were the ones who actually performed the reading.[20] Since the text must be read directly from the scroll and not from memory, the person called to the Torah (the oleh) must possess the ability to read it, even if he assigns that task to a designated reader (chazan or ba`al keri’ah).[21] For this reason, a number of leading authorities prohibit a blind person from being called to the Torah.[22] Yet others dissent from this ruling on the grounds that, since the ba`al keri’ah is in fact the one who performs the reading, we do not insist that the oleh be capable of reading on his own. It is enough that he (and now she) recite the benedictions and stand by the ba`al keri’ah.[23] The blind may therefore be “called up” to the Torah, and such has long been the accepted practice.[24]The example of the public reading offers a particularly helpful analogy to our case. At a time in history when the Torah was read by those “called up” to the scroll, those who could not physically read from the scroll were quite appropriately excluded from this observance. Over the years, the nature of this ritual changed: those “called up” to the scroll were no longer expected to perform the reading themselves. Accordingly, the exclusion no longer made sense, and the blind were allowed to participate. In a similar way, our understanding of the nature of “wedding testimony” (edut kiddushin) has also changed. Given that the halakhah is prepared to accept “common knowledge” as sufficient testimony that a wedding has taken place, and given that “there is a logical basis” upon which to conclude that the blind may offer testimony on matters that do not strictly speaking require eyesight, a good argument can be made that it no longer makes sense to exclude blind persons from this aspect of Jewish ritual life.

    As Reform Jews, we regard it a positive duty to include the blind and all others who are physically disabled in the activities of our congregations and communities. We base this affirmation, in part, upon the traditional insight that to exclude the blind from the mitzvot is to exclude them from Jewish experience altogether.[25] Our movement’s historic commitment to the cause of social justice transforms this insight into a call to action: it is our obligation to do whatever we can to remove barriers that prevent the disabled from participating as fully as possible in Jewish life.[26] In this case, since Jewish text and tradition can be understood so as to permit the blind to serve as witnesses to a wedding, we must adopt that understanding as our own. So long as a blind person, through the use of the senses of hearing and touch, can identify the bride and the groom and can testify that the act of kiddushin has taken place, we must permit them the opportunity to do so.

 

NOTES

  1. Yad, Edut 9:1. The full list: women, slaves, children, the insane, the deaf-mute, the blind, the wicked, the despised (bezuyin, “uncouth” or “shameless”; see Yad, Edut 11:5), relatives, and those who are implicated in their own testimony.
  2. Yad, Edut 9:12. The midrash is found in Tosefta Shevu`ot 3:6
  3. BT Kiddushin 65b; Yad, Ishut 4:6; SA EHE 42:2.
  4. Isserles, EHE 42:2.
  5. Yad, Ishut 4:6; SA EHE 42:5. The validity of the wedding depends upon the nature of the witness’s disqualification. If the witness is disqualified by Torah law (mide’oraita), the wedding is certainly invalid; if the disqualification is based upon rabbinic ordinance (miderabanan), the halakhah may require a divorce before permitting the parties to remarry. See Magid Mishneh to Yad ad loc.
  6. Resp. Chatam Sofer, EHE 100.
  7. The disqualification of witnesses is derived from the verse Deut. 24:16. See M. Sanhedrin 3:1 and 4; BT Sanhedrin 27b; and Yad Edut 13:1.
  8. See BT Bava Metzi`a 3a and 4a. This principle is invoked in cases where the court will rely upon estimate (umdana), legal presumption (chazakah), or custom (minhag) to establish facts, so that no direct or eyewitness testimony (edut berurah) is required.
  9. Sofer deduces his conclusion from the commentary of R. Nissim Gerondi to the Halakhot of Alfasi, Gitin, fol. 47b-48a. There are two types of witnesses to the procedure of divorce: the eidei mesirah, those who witness the transmission of the get from husband to wife, and the eidei chatimah, the witnesses to the writing of the get who sign their name thereto. The halakhah follows Rabbi Elazar, who holds that the get becomes valid because of the eidei mesirah and that the witnesses to the writing of the get are necessary only as a precaution, in the event that the eidei mesirah should be unavailable to testify that the get was properly handed to the wife (M. Gitin 4:3 and 9:4; BT Gitin 36a; Yad, Gerushin 1:15). R. Nissim suggests, however, that even Rabbi Elazar would accept the validity of the get based upon the signatures alone. This is not because those signatures themselves validate the get; only the witnesses to its transmission accomplish that. Rather, the signatures allow us to conclude that this get was properly filled out before a qualified beit din, so that (in Sofer’s words) “we all know that the document passed from the husband to the wife. Even if witnesses did not see this transmission, we are all witnesses to the transmission.” In other words, though there is no actual testimony to the act of transmission–and it is upon that act that the get’s validity depends–our common knowledge allows us to presume with confidence that a proper transmission took place. Sofer applies this logic to the case of witnesses to the wedding.
  10. Henkin makes this point in the following works: Teshuvot Ibra, no. 76; Lev Ibra, pp. 14-15; and Perushei Ibra, ch. 2.
  11. See especially the R. Moshe Trani (16th century), Resp. Mabit 1:226: since at the time of the wedding there was no firm knowledge of the identity of the one who accepted the kiddushin, the discovery of her identity at a later point does not retroactively validate the marriage. We require knowledge at the time of the wedding itself.
  12. Avnei Milu’im 31, no. 4.
  13. See Otzar Haposkim, EHE 42:4, no. 22, for an exhaustive list of these authorities.
  14. And see R. Eliezer Waldenberg, Resp. Tzitz Eliezer 11:82, at p. 216.
  15. M. Gitin 2:5. The technical term for such as agent is shaliach leholakhah.
  16. M. Gitin 1:1.
  17. Torah Temimah to Lev. 5:1, no. 18.
  18. BT Bava Kama 87a.
  19. Thus, the blind are included in the practice of tzitzit, even though they cannot see the fringes on the four corners of their garments (SA OC 17:1); the blind may lead the tefilah (SA OC 53:14) as well as the Shema for the congregation (SA OC 69:12). On the other hand, the blind do not recite the blessing “who has created the lights of the fire” at havdalah, since one must be able to make use of the light before reciting this benediction (SA OC 298:13; yet they are permitted to recite the other benedictions of the havdalah service; see Mishnah Berurah ad loc.). A blind person may not serve as a shochet under ordinary circumstances (SA Yore De`ah 1:9). Finally, a blind person is not permitted to read from the Torah as part of a public service (SA OC 53:14), since one must be able to read the words of Torah from the actual text. On this, however, see below.
  20. On the history of this practice, see Ismar Elbogen, Jewish Liturgy: A Comprehensive History (Philadelphia-New York: Jewish Publication Society/Jewish Theological Seminary, 1993), 140-141.
  21. “Words of Torah that are written down may not be recited from memory”; BT Gitin 60a. Thus, “it is forbidden to read aloud from the Torah even one word not directly from the text;” Yad, Tefilah 11:8.
  22. SA Orach Chayim 53:14 and 139:3; Tur and Beit Yosef, Orach Chayim 141. Similarly, an illiterate person should not be called to the Torah, since he cannot read from the text. He is not permitted, therefore, to recite a blessing over the chazan’s recitation of the Torah unless he himself can discern the letters and read them along with the chazan. See R. Asher b. Yechiel, Resp. Harosh 3:12, and R. Yitzchak b. Sheshet Perfet, Resp. Rivash, no. 204.
  23. R. Ya`akov Molin (15th-century Germany), Sefer Maharil, Hil. Keri’at Hatorah, no. 3; Isserles, SA OC 139:3; R. Binyamin Selonik (16th-century Poland), Resp. Masat Binyamin, no. 62; R. Mordekhai Yaffe (16th-century Poland), Levush, OC 141:3; Magen Avraham, OC 139, no. 4; Turey Zahav, OC 141, no. 3.
  24. Mishnah Berurah, OC 139, no. 13; Arukh Hashulchan, OC 139, par. 3.
  25. See Tosafot, Bava Kama 87a, s.v. vekhen haya R. Yehudah potero mikol hamitzvot: “if you exempt the blind from the requirement to observe all the commandments, even if this requirement is rabbinically-imposed, you make him as though he is a Gentile, who does not walk in the path of Judaism at all.”
  26. This Committee has written that the inclusion of the disabled in our synagogues and other Jewish institutions is itself a mitzvah, an obligation that demands concrete action on our part. See Teshuvot for the Nineties, no. 5752.5.

If needed, please consult Abbreviations used in CCAR Responsa.

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