CCAR RESPONSA
The Absence of a Get
5754.6
She’elah
In a tightly knit community, where relations between Orthodox, Conservative, and Reform rabbis and congregations are very close, an Orthodox man refuses to give his civilly divorced wife a get, an halachically valid divorce instrument.
The wife is Orthodox and therefore unable to marry until a get is given her. The Orthodox colleague has asked the other rabbis in the city to support him when he imposes sanctions (withholding aliyot, synagogue leadership roles etc.).
What shall the Reform rabbis do when the man applies for membership in their congregation and asks to be married by them?
Should they disregard the woman’s agunah status (i.e. a woman unable to marry halachically) and hold that she is free to be married at any time by a Reform rabbi? If that were the case, could it not be said that an agunah problem really does not exist because any woman in reach of a Reform rabbi has the opportunity to end her status?
Would respect for the entire Jewish community and for the woman’s religious convictions demand otherwise? (Rabbis Samuel M. Stahl and Barry H. Block, San Antonio, TX)
Teshuvah
According to traditional Jewish law, a woman becomes an agunah when her husband is irretrievably lost and there is insufficient testimony to certify his death, or when her husband refuses to provide her with a get to signify the Jewish conclusion of the marriage. Under either circumstance, the woman finds herself in the situation of being an agunah, a “tied” woman, and may not remarry Jewishly so long as this status continues unrelieved. There is near universal agreement that there are few more tragic outcomes of halakhah. In fact so seriously was her plight viewed that time and again within the framework of Jewish law, great halakhic luminaries have taken far- reaching steps to help release her.
The first recorded example of this trend dates back to the first century C.E. when Rabban Gamliel the Elder permitted a large number of war widows who were in danger of being classified as agunot to remarry. Despite the fact that the Torah required the evidence of two or of three witnesses to attest to the husband’s death, Rabban Gamliel allowed remarriage on the basis of the hitherto invalid testimony of one witness, hearsay evidence, the testimony of a woman, or even of a female slave (Yad Hilkhot Edut 4.1, M. Yevamot 16.7)1. This effort has been mirrored in modern times of extremis when leading poskim have countenanced the remarriage of potential agunot – without proof of death – following the Shoah,Israel’s wars and other instances.
Even in the more difficult circumstance of a deserted wife whose husband is clearly alive, but who refuses to divorce her, the halakhah condones strong measures to move him in the direction of giving a get. Though in most cases a forced divorce is invalid, there are certain conditions which justify the verdict of a beit din that a man must divorce his wife (BT. Gittin 88b, Ketubot 77a, SA EH 154:21). He may be compelled to do so by any means, including force or even the scourge (Yad Hilkhot Ishut 15:7, Tur and Beit Yosef SA, EH 154 [end]). Under current Israeli law a recalcitrant husband can be imprisoned until he consents to give a get.2
While, historically, these measures have succeeded in releasing only some agunot, still the direction of the tradition is clear. R. Asher ben Yehiel (1250-1328) saw it in terms of a mitzvah: “One must investigate all possible avenues in order to release an agunah.” [Resp. HaRosh 51:2] Every social and religious measure possible must be taken when such practical steps might lead to the freeing of an agunah.
In the light of this background, a contemporary Reform rabbi is being asked to make a choice as to how to relate to a “former” husband who has, by leaving his wife, made her into an agunah. Within American Reform Judaism, of course, throughout the last century, civil divorce has been accepted as effecting religious divorce. Reform Judaism has thereby effectively taken the attitude that the status of being an agunah should long ago have been relegated to the realm of the halakhic past. One possibility, therefore, is for the rabbi to hold that this historic Reform position is applicable to the case at hand, and that – by means of the civil divorce – the man has discharged his obligations to his “former” wife, and is eligible to receive all the services afforded to any other divorced Jew. The consequences of this position would be that the man would be able to remarry in the Reform congregation, but the civilly-divorced woman – so long as she remains Orthodox – would be regarded as an agunah. The alternative possibility is for the Reform rabbi to participate actively in the traditional process of applying every acceptable social and religious pressure to spur the man to release his “former” wife. Should the rabbi choose this path, it would have to be decided whether the sanctions of refusing the man membership and/or marriage in the Reform congregation were appropriate measures.
Prima facie, the correct choice for the Reform rabbi may seem simple. After all, the first possibility asks the rabbi to uphold an historic Reform outlook. On the other hand, the second possibility asks the rabbi to participate in what is essentially an Orthodox practice of exerting pressure in order to obtain a traditional get. While the rabbi should indeed act according to Reform principles, the problem is that a closer examination reveals that there is more than one Reform Jewish principle which ought to guide the rabbi’s thinking in this case.
Beyond the matter of the Reform Jewish stance on the prerequisites for Jewish divorce, the issue of pluralism is clearly central to this matter. If Reform Judaism took the attitude that there is but one form of Jewish truth that is applicable to all Jews then it would indeed be appropriate to apply that truth to all persons, no matter what the circumstances.3 But our actual position is quite the opposite. Precisely because Reform Judaism cherishes freedom, it also holds a principled belief in pluralism; it applauds the reality that other movements within Judaism sometimes choose to see the world differently from the way that Reform Jews do.4
A result of this firm adherence to the principle of pluralism is that we must recognize that various principles which we have established for Reform Jews, who operate wholly within the Reform Jewish context, may not work in the same way for Jews who are not within our context. Given that individual decisions to transfer between the movements will sometimes lead to cases such as this one – wherein the application of our principles would have a direct impact on those who are outside our own context – pluralism dictates that we need to be sensitive to the repercussions of our policies beyond the borders of our own movement.
In particular, a principled Reform Jewish stance on divorce – that pronounces civil divorce to be religiously sufficient – might work very well within a Reform context where all parties are subject to the same assumptions and their consequences. But where applying our stance for the man would leave the woman unable to remarry in her Orthodox context, the use of our divorce principles would clearly lead to a lamentable outcome. To pretend that this woman could simply solve her agunah status by going to a Reform rabbi who would recognize her as being Jewishly divorced even without a get, could only be seen as a coercive position on behalf of Reform Judaism, that ignores the truth of her status as she and her rabbi see it. To take such a position would plainly and completely undermine our own stated commitment to pluralism.
Moreover, it should be remembered that this couple was married in an Orthodox synagogue. At the time of his marriage this man contracted himself to a partnership that could only be finally dissolved by an Orthodox get. If both parties were to agree that this element of their contracted relationship had become null and void, then he would be free of the assumptions of the contract. But since she has not agreed, to remarry him would be to assist him to evade a contractual undertaking that he had implicitly made.5 Even though this contractual undertaking was not made within a Reform context, pluralism calls upon us to recognize the seriousness of obligations freely entered into in other Jewish jurisdictions.
In this case, therefore, respecting pluralism implies that we must respect her belief that until she is released she is an agunah, and only her “former” husband can change that. We may well regard her status as an agunah as a completely unacceptable state of affairs. Indeed we ought to continue to protest the failure of contemporary traditional poskim to develop a consensus around one of the proposed halakhic solutions to this problem.6 We should strenuously object to the fact that time and again the threat or reality of the woman becoming an agunah brings Jewish divorce procedures into disrepute both in Israel and the Diaspora. We should forthrightly rail against those who are apparently unprepared to respond to the plight of the agunah and to the morally indefensible results which their silence continues to bring about. But at the same time we must also acknowledge that while we do not have the power to wipe away her status as an agunah within the Orthodox community, we do have the power to help prolong and perhaps seal her fate as an agunah within that community by agreeing to remarry her husband while she remains without a get. The principle of pluralism shines light on both the reality and the anguish of a status that our own divorce standards can neither alter nor ameliorate.
But there is one more critical Reform Jewish principle which calls upon our conscience in a case such as this, and that is the moral mandate to strive to always support “hayashar v’hatov,” “the right and the good,” [Deut. 6:18] as a matter of primary importance.7 Undoubtedly, no matter what level of bitterness may have been associated with a particular divorce, no woman deserves to remain an agunah. Moreover, only spiteful reasons would really prevent a man from granting his civilly-divorced former wife a get. As the tendency of the tradition has taught us, the importance of defending our current Reform judgement – that the demand for a get is unnecessary – could never be compared to the moral significance of helping to release an agunah. This, then, is not so much a matter that pits Reform divorce principles against Orthodox divorce principles, since all would agree that fairness prescribes that the woman’s status as an agunah be ended forthwith. Rather, this is a matter which calls upon us first to uphold “hayashar v’hatov,” and to help to bring about the speedy release of this woman, before turning to other considerations.
This is very much an issue of Klal Yisrael, and of “Kol Yisrael arevim zeh ba zeh,” “all Jews are responsible for each other,” which are both notions that we strongly support. We want to ensure that this man fulfills the commandment to which he obligated himself, the fulfillment of which will clearly produce the greatest good. We should cooperate with the Orthodox rabbi’s call for sanctions against this man. Since we have a previous responsum which suggests that Jews who have turned towards transgression may be even more needy of synagogue influence than others,8 and given that the Orthodox congregation has taken no steps to debar him, it would be inappropriate for us to deny this man synagogue membership. We may well wish to review his membership at some later point if the synagogue’s positive influence fails to move him in the right direction.9 However, in the interests of providing the strongest possible Jewish incentive for him to do what is right and good, it would certainly be appropriate to refuse to remarry him in a Reform synagogue. By so doing we will demonstrate our very real concern for all Jews who have been made powerless, no matter whether they have chosen our ideology or not.10
Notes
- See W. Jacob and M. Zemer (eds.), Rabbinic-Lay Relations in Jewish Law, (Pittsburgh, Rodef Shalom Press, 1993), pp. 60-61, and M. Zemer,
Halakhah Shefuyah, (Tel Aviv, Dvir, 1993), pp. 33-34.
- See B. Schereschewsky, Dinei Mishpachah, 3rd ed., (Jerusalem, Rubin Mass Limited, 1984), pp. 370-372.
- One might in fact argue that this is the Orthodox position.
- Eugene B. Borowitz, Liberal Judaism, (New York, Union of American Hebrew Congregations, 1984), pp. 348-349.
- The husband made such an implicit agreement when he declared the kiddushin formula kedat Moshe v’Yisrael in an Orthodox setting. As is
conveyed in Ketubot 3a, since a Jewish man betroths a wife with the implicit acceptance of rabbinic law (kol demekadeish ada’ata derabbanan mekadeish), the rabbis may subsequently withdraw their consent to the marriage (in the event of his misconduct or other misfortune) and declare the relationship null and void. One aspect of this law is that the parties agree to abide by the decree of the rabbinic court (mitzvah lishmoa divrei chakhamim; Baba Bathra 48a). On the basis of this implicit acceptance, the court is justified in coercing a get – physically, if need be – from the husband (Gittin 88a; Rambam, Gerushin 2:20, and Magid Mishneh and Kesef Mishneh ad loc.). Hence, his civil divorce has clearly not released him from these implied obligations.
- For possible halakhic alternatives see: Ben-Zion Schereschewsky, “Agunah” in Menachem Elon (ed.), The Principles of Jewish Law, (Jerusalem,
Keter Publishing House Limited, 1974), pp. 412-413. Eliezer Berkovits, Tenai be-Nissu’in u-ve-Get, (Jerusalem, Mosad HaRav Kook, 1967).
- Gunther Plaut comments on this verse: “The Rabbis developed an important ethical principle from this verse, holding that it was not sufficient to
do the ‘right’ or legal thing, but that one needed to go beyond and do also what was ‘good’ or moral.” -Gunther Plaut, The Torah – A Modern Commentary (New York, Union of American Hebrew Congregations, 1981), p. 1368. See also Baba Metziah 16b and Nachmanides’ comment on Deuteronomy 6:18. There can be little argument that Reform Judaism has historically put great emphasis on doing that which is good, moral, and ethical.
- Israel Bettan, “Refusing a Jew Membership,” (1953), in Walter Jacob (ed.), American Reform Responsa, (New York, Central Conference of
American Rabbis, 1983), pp. 54-55.
- This would only be done in extremis, based on the principle of hara b’miuto, that this is the lesser of two evils. For though expelling him has
negative aspects, if it leads him to take action it is clearly a lesser evil than leaving his wife an agunah for life.
- There were two dissents, basing themselves on the unacceptable conditions and
practices of halachic divorce.
If needed, please consult Abbreviations used in CCAR Responsa.