Status of Apostates (Children and Adults)

The Committee has received during the past year a number of questions which involve Jewish converts to Christianity, and some questions with regard to the reversion to non-Jewish faith on the part of converts to Judaism. A question arose about the status in Juda ism of Christian children, adopted, converted to Juda ism, and then, because of physical or mental defects, the adoption is cancelled and the child returned to the agency. What is the status of such a child? The questions involving apostasy have come up generally in the following circumstance: A child is of an immi grant family in which there is a Gentile father and a Jewish mother, the family having been converted to Christianity in Germany. Now the young girl from this mixed family wants to marry a Jew. May she be married to a Jew without conversion? Analogous to it is the question of a child of a Jewish mother adopted and raised by a Christian family as a Christian. Can this child be married to a Jew without conversion? Does the fact that this child was not raised by her Jewish mother make a difference? As for a Christian child adopted, converted to Judaism, and then, be cause of physical or mental defects, returned to the agency, is this child to be deemed to have remained a Jew? May he or she, for example, when grown up, be married to a Jew, without further question as to reconversion?

These are all practical questions, and therefore it is important not only that we analyze the attitude of Jewish law in the past to these individuals, but also arrive at a practical conclusion for ourselves as to how we should deal with the problems mentioned above.

At the outset, it is to be noted that these problems are not new. To some degree they are dealt with in the Talmud, but they come to more complete discussion in the many responsa dealing with the Marranos, who for cen-turies kept on escaping from Spain and Portugal and appearing in Jewish communities elsewhere. Decision had to be made as to the status of these fugitives. Should they now be converted to Judaism? Or was the conversion unnecessary on the ground that they still were Jews? The question came up likewise in Ashkenazic Jewry due to the waves of compulsory conversion in the wake of the Crusades and later persecutions. It would be well, therefore, to trace the law in its general principles from the beginning.

The Talmud, in Yevamoth 45b, says that a child born of a Gentile father and a Jewish mother is “kosher.” To which Rashi comments, “Since his mother is Jewish, he is counted as one of our brothers.” The Talmud in Kiddushin 68b, in discussing the verse in Deuteronomy 7 : 4: ” … he will wean your son away from following Me,” indicates that “he” means the Gentile father of the son, who will mislead the son away, and so forth. Therefore, the Talmud says, this indicates that “your son” born of an Israelite woman is truly your son, but a son born of a Gentile woman is her son. The principle is so embodied in the Codes: in the Tur, Even Hoezer 4, it is written that the son of any Gentile man and a Jewish woman is “kosher” to marry a Jew; so it is also in the Shulchan Aruch, Even Hoezer 4 : 5 and 19. There is some question whether a child of such a mixed marriage may marry a priest, but most authorities agree that she may do so.

Therefore, there is no question that the child of a Jewish mother is fully a Jew and may be married to a Jew. Now, theoretically speaking, if this daughter of a mixed marriage also marries a Gentile, her child is a child of a Jewish mother and is also Jewish. For how many generations would this Jewish status endure? While, of course, this is a theoretical question, it is interesting to note that Solomon, the son of Simon Duran, of Algiers, says (“Rashbash” 89) that it applies “ad sof ho ‘olom, ” forever. The statement of Duran is as follows: “One whose mother is Jewish, even for many generations, even if the father is Gentile, the child is Jewish, even to the end of the world, ad sof ho ‘olom. ”

But such a person has been raised as a Christian—either, as in the case concerning which the Committee was specifically asked, the child was herself converted to Christianity; or, as in the case of the Marranos, the child was raised in a Christian environment from the very beginning. Granted that the child is Jewish by birth, must it not be in some formal way restored to its Jewish status—by a ceremony akin to conversion? This is discussed in the law and most of the discussion goes back to the Talmud in Bechoros 31a and Avodah Zara la. Here the discussion is specifically with regard to the Am Haaretz, meaning in the Talmudic sense one who is not to be trusted to observe the laws of purity and to give tithes and heave offering properly. What should be the relationship between these non observers (Am Ha’aretz) and the Chaverim (those who are careful to keep all the laws mentioned)? The Talmud says that the Am Ha’aretz, before he can be accepted as trustworthy, must make a formal promise of Chaverus, i.e., to be one of the Chaverim who are careful to observe the law.

The same term is used in the discussion of apostates who want to return. Repentant apostates are asked to take upon themselves the promise of Chaverus, i.e., to obey Jewish law. As to whether any formal ceremony other than such a promise is to be required of them, there is a general agreement that the ritual bath is not really required by strict law (m’d’oraiso), but some would require the ritual bath as a rabbinical caution (m’d’rabbanan). Thus it is decided by Moses Isserles in Yore Deah 268 : 12. However, it is noteworthy that in the discussion in the Talmud, in Bechoroth, Rabbi Simon and Rabbi Joshua, speaking of the nonobservant and whether we should accept their repentance, say that under all circumstances we should accept them because of the verse in Jeremiah (3 : 22), “Return, ye recreant children”; and the Talmud says that the law is according to this pair of lenient authorities. The status of the nonobservant Jew, and that of the proselyte are brought together in the Tosefta (Demai II). In the discussion on the Shulchan Aruch passage mentioned above, Elijah of Vilna quotes this lenient discussion in the Talmud as applying also to apostates who revert to Judaism. In general, the Talmud is lenient also with regard to children of Jewish birth who, unaware of their Jewish origin, are raised among non-Jews (Tinok hanishbah bayn hanochrim). See the discussion in Shabbas 68 b ), especially with regard to their being excused since in their ignorance they violated the Sabbath.

The general mood of the law with regard to all those who seek to return was to make as little fuss as possible and to interpose no hindrances. The rest of the statement of Solomon Duran as to these reverts is as follows: “The requirements of conversion do not apply to them at all. When they wish to return to Judaism, we do not have to tell them about the various commandments (as we do to Gentile converts) for they already stand sworn as part of Israel from Mount Sinai and they do not need the ritual bath for conversion.” That this is not merely a chance liberal statement is evidenced by the fact that it is quoted by Joseph Caro in his “Bes Joseph” (Bedek Ha Bayis) at the end of Yore Deah 268, where the question is discussed. It is noteworthy, too, that Rabbenu Gershom, the Light of the Exile, speaking in the Rhineland, also says in a similar case (in fact, with regard to a priest) that we should be as lenient as possible and refrain carefully from reminding them of their former state lest we discourage thereby the apostates from returning in repentance (“Vitry,” pp. 96-97).

It is clear from this that no ritual of conversion should be required of a child of a Jewish mother. To do so would indeed violate the law and imply that they are not Jews, which would be errpneous. However, the decision of Is series that they avow Divre Chaverus could well be accepted by us as a cautionary action. We should ask the person involved to promise to maintain a Jewish home. This, at the most, is all that is necessary.

Now as to the other and somewhat related question: What about a child born of a Gentile mother who, in infancy, is adopted into a Jewish family, converted to Judaism, and then, after conversion, is returned to the adoption agency because of some physical or mental defect? Is this child, because of the original conversion in infancy, to be deemed permanently a Jew? This may become a practical question if, when the child grows up, he or she wants to marry a Jew.

In general, the law concerning an infant who is converted is different from that governing an adult who is converted to Judaism. An adult accepts Judaism of his own free will after a careful explanation is made to him of all the circumstances involved in becoming a Jew. But an infant is converted without knowing what is involved. The Talmud says (Ketuboth 11a) that an infant may be converted by the authority of the Beth Din, not, of course, on the ground of the child’s intelligent acceptance of the conditions involved, which is impossible, but because becoming a Jew was deemed to be an advantage, and we may do a favor to a person even without his consent. Therefore, with regard to an adult convert, he cannot completely discard the allegiance which he had accepted. He simply becomes a sinful Jew and he may still enter into Jewish marriage, just as an apostate Jew may (see Tosefta, Demai I I : 5; Yore Deah 268 : 12).

This convert to Judaism who reverts to his former faith is, of course, not deemed a Jew in the full sense of the word. Just as in the case of a born Jew who apostatizes, he is, for example, not to be relied upon with regard to various mitzvos. The wine in his possession is Gentile wine, and his bread is Gentile bread. But with regard to marriage, he has the same right as an apostate Jew. The only exception with regard to apostates in the marriage relationship concerns the levirate marriage and Chalitza. If, for example, a man dies and has no children, and his brother is an apostate, some few authorities ease the requirement that the widow obtain Chalitza from this apostate. But otherwise the apostate, whether born Jewish or having been converted as an adult, retains his Jewish status in marriage relationships (cf. Ezekiel Landau, “Nodah b’Yehudah” II, Even Hoezer 150).

Thus, the adult convert, like a Jew by birth, possesses what international lawyers call an “indelible allegiance,” at least with regard to marriage and divorce. However, a child who has been converted without his own intelligent consent, but merely on the theory that a favor has been done him, is given the permission to renounce the conversion when he grows up. So says Rabbi Joseph in the dis-cussion in the Talmud (Ketuboth 1 1a). This is embodied as law by Asher ben Yehiel in his Compendium on the Talmud. He adds, however, that if the convert, when he is full-grown, is known to observe Jewish law, this observance is deemed to mean consent; and then he can no longer renounce his allegiance. So it is in the Shulchan Aruch, Yore Deah 268 : 7 and 8. The child in question, therefore, has the right to determine whether his conversion in infancy remains valid or not. If he chooses to live a Jewish life as he grows up, he is a Jew; if not, his conversion is void.

To sum up: Those who are born of Jewish mothers and those who are converted to Judaism as adults have an indelible allegiance to Judaism with regard to marriage laws. The only real exception to this is the circumstance in which a woman is free from the need of Chalitza if her husband’s brother is an apostate.

(Originally published in Central Conference of American Rabbis Yearbook, Vol. LXX, 1960.)