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Halakhic Pre-Nuptial Agreements: Why Are They Needed? How Do They Work? Do They Work Here and Abroad?

Featuring:
Rabbi Michael Chernick

Responses by:
Rabbi Elliot Dorff
Rabba Sara Hurwitz
Rabbi Daniel Siegel
Rabbi Mark Washofsky
Rabbi Deborah Waxman

 

By Rabbi Michael Chernick
Professor Emeritus of Rabbinic Literature
HUC-JIR/New York

Rabbi Michael Chernick

Background

In its discussion of divorce in Deuteronomy 24:1-2 the Torah frames the entire procedure in the masculine form. The Sages of the Mishnaic and Talmudic period understood this to mean that the right of divorce was the husband’s and not the wife’s. Further, in the formative period of Jewish law, a husband divorced his wife at his discretion, but she could be divorced against her will (Mishnah Yebamot 14:1). In the eleventh century a takkanah ascribed to Rabbenu Gershom of Mainz prevented women from being divorced against their will. Nevertheless, the husband’s agreement to divorce was still a sine qua non for the get to be legal.

Nevertheless, the problem of what I will call get-agunah, a woman being “chained” to a dead marriage for lack of a halakhic divorce, was not a practical problem. The Sages of the Talmudic period recognizing the inequities inherent in Jewish divorce law developed two strategies for coping with divorces on a whim and recalcitrance. Divorces on a whim were impeded by the creation of the ketubah which put a high price on divorce for the husband. When it came to recalcitrance, the Sages handled it by allowing the courts to coerce the husband, physically if necessary, until he said, “I wish to divorce my wife.” Despite the fact that this was not a freely willed decision, which was a required for a legal divorce, for the Sages the mere statement of “I want to divorce my wife” was enough.

The need for the husband’s willingness to divorce is not the only complication for Jewish women. Though polygamy was outlawed among Ashkenazi Jews in the 10th century and subsequently by most Sephardic and Oriental Jewish communities, the basic law of Judaism, the Torah, allowed it. It did not, however, allow polyandry. The children of a man who sired children with a wife he married while halakhically married to another woman were perfectly “kosher” because his marriages to both women were legal. Children born to a woman without a get were the products of an adulterous relationship, which made them illegitimate mamzerim, prohibited by Torah law from marrying most other Jews.

None of this would be a problem if rabbinic courts in most modern nations had the power of coercion. But they don’t. Western nations, which separate Church and State, reserve that power to themselves. Due to the powerlessness of rabbinic courts to coerce, the authority over Jewish divorce has reverted totally to the husband. If his wife is Orthodox, she will remain unmarried for halakhic and a complex host of other reasons if her husband refuses to give her a get. Even some non-Orthodox women remain “chained” because of concerns about their children’s future marriageability. It is this situation that the halakhic prenuptial agreement seeks to redress.

 

Halakhic prenuptial agreements: How They Work

The best known halakhic prenuptial agreement is the one the Rabbinical Council of America (henceforth, RCA) developed in consultation with halakhic authorities and lawyers familiar with civil law and arbitration. It has become the basic prototype for halakhic prenuptial agreements adopted in Israel and Europe. The RCA halakhic prenuptial agreement has the backing of significant Orthodox halakhic authorities, among them Rabbis Zechariah Nechemiah Goldberg, Yitzchak Liebes, Gedaliah Schwartz, Osher Weiss, Ovadiah Yosef, and Shalom Messas.

The basic mechanics of the RCA prenuptial are as follows:

  1. The groom-to-be agrees to support his wife, an obligation he has under the ketubah, at a higher, exorbitant rate, if he and his wife are not domiciled together. The amount, usually set at $150 per day, accrues as long as he does not appear before the RCA’s beth din of choice, the Beth Din of America (henceforth, BDA). At the point where the wife requests a get and the husband refuses to appear before the BDA, she can obtain the accrued amount in civil court with the BDA’s support. Given the choice between giving the get or paying a huge sum under court order, most men prefer to give the get. It should be noted that if the woman refuses the get she is no longer granted the support otherwise guaranteed her in the prenuptial contract. This leaves her with little leverage and considerable incentive to accept the get.
  2. The couple agrees in their halakhic prenuptial contract that arbitration of all matters of financial dispute and to the get are delegated to the BDA, which will act as the couple’s sole court of arbitration if marital discord ensues. Since the contract is a civil contract that conforms to all the rules of secular civil law, a secular court can force the parties to arbitrate whatever issues exist between them at the BDA, and before it alone.

Between these two mechanisms, the RCA halakhic prenuptial agreement has been, at least according to the RCA, 100% successful in achieving the goal of timely delivery and acceptance of the get, which is issued by the BDA or by its proxies.

 

Objections to the Halakhic Prenuptial Agreement from the Orthodox Right

Objections to halakhic prenuptial agreements to prevent get-agunot have come from the Orthodox “right.” The argument of the right has been that the halakhic prenuptial agreement gives too much power to the secular courts to enforce the financial provision of the prenuptial contract. From the point of view of the objectors, it is the secular court that ultimately coerces the husband into giving the get. According to Jewish law, a get which results from pressure by non-Jews, and sometimes even by Jews, is unacceptable. It is a get m’useh, a “forced get.

In actuality, the halakhic prenuptial agreement that the RCA created avoids this problem. According to its provisions the secular court only acts on the halakhic prenuptial agreement’s provision that makes the BDA the couple’s sole court of arbitration. True, a court of arbitration’s decisions are enforceable in the civil courts, but the RCA halakhic prenuptial agreement grants no authority to the civil court in relation to the get. If the wife seeks her financial redress, the BDA may provide proof that she deserves her settlement, but she is the plaintiff. The BDA is not.

Moshe Sternbuch, Chief Dayyan of the rabbinical court of the haredi Edah Haredit in Jerusalem, has objected to the prenuptial contracts on other grounds, namely, asmakhta. This halakhic principle holds that a person who undertakes an obligation believing that he or she will never have to fulfill it produces an invalid contract. In R. Sternbuch’s view, a couple beginning their married life together does not really believe they will ever get divorced. Hence, any prenuptial contract that discusses their potential divorce is invalid.

The response to R. Sternbuch has been that a couple that signs a contract, validates it by the most serious means available in Jewish law, namely a kinyan (loosely, “acquisition,” more accurately in this case “affirmation”), and notarizes it before a notary public clearly indicates their readiness to act on a halakhic divorce should one be necessary.

 

Objections to the Halakhic Prenuptial Agreement from the Orthodox and Feminist “Left”

Despite the Modern Orthodox community’s overwhelmingly positive reception of the halakhic prenuptial agreement, objections to it have come from women in the Modern Orthodox community and from Jewish feminists who are not necessarily aligned with any Jewish religious movement. Indeed, these Modern Orthodox women and Jewish feminists in the United States and in Israel strongly warn women not to sign any halakhic prenuptial agreements.

Their objections are based on several contentions.

First, rabbinic courts appointed as the court of arbitration usually require the woman who receives her get to waive all claims to any money that accrued during the period she and her husband were not cohabiting. According to the objectors this is tantamount to forcing the woman to pay for her get, a tactic recalcitrant husbands have often used to extort huge sums from their ex-wives in exchange for their halakhic divorce.

Second, the opponents of halakhic prenuptial agreements have argued that they are not foolproof. A wealthy man would find the usual $150 daily support provision a pittance and could hold up his wife’s get for an extraordinary period of time before feeling a financial pinch serious enough for him to grant the get. Indeed, in order to speed up the process, a rich recalcitrant husband might demand extortionate payment from his wife, which would likely far exceed the debt accrued under the halakhic prenuptial agreement. This would revive the very problem the halakhic prenuptial agreement was supposed to solve.

There is also the possibility of the husband fleeing beyond the reach of the BDA or its agents or his becoming mentally incapacitated and thus deprived of the free will required for him to give the get. In either case the halakhic prenuptial agreement would be useless.

Finally, Jewish feminists argue that the halakhic prenuptial agreement does nothing to remedy the basic inequality that lies at the heart of Jewish divorce. The husband’s agreement to grant the divorce remains necessary, and the wife remains a supplicant before a court whose judges are all men. They claim that the halakhic prenuptial agreement does nothing to empower either the men or women who sign it. All it does is grant higher degree of rabbinic control over both of them.

The argument raised against these objections to the halakhic prenuptial agreement is practical: Few solutions to extremely knotty problems, especially where marital discord is involved, are perfect or foolproof. Nevertheless, if there has been a 100% success rate in the timely delivery of the get in cases where a couple signs a halakhic prenuptial, why throw the baby out with the bathwater because of ideological and farfetched caveats?

Nevertheless, in my opinion the Orthodox community that favors halakhic prenuptial agreements should take these critiques seriously. Indeed, some halakhic scholars and civil lawyers in the Modern Orthodox community are working to close the gaps in the present halakhic prenuptial agreements’ conditions. The objective is to achieve delivery or receipt of a get where possible, but to end the marriage without a get if not.

 

Ending Halakhic Marriages Without a Get

The halakhic tradition provides means to terminate a marriage without the need for a get. All have been used in the past; some have been used even in our time. Among these are kiddushei ta`ut (marriage contracted under erroneous assumptions); kiddushin `al tenai (conditional marriage in which case the marriage holds only if certain conditions are met or remain in force); and hafka`at kiddushin (halakhic annulment of marriage, usually automatic under certain conditions). These methods of ending a Jewish marriage in tandem with the existent halakhic prenuptial agreements could bring the couple to a bet din for a get, or if there is recalcitrance, end the marriage without one.

Up until now halakhic authorities of standing have attacked these methods of ending a halakhic marriage. The reasons for their objections have often been based on the value system they espouse rather than indisputable halakhic evidence. Mostly they express concern for the devaluation of the institution of Jewish marriage and its concomitant negative affect on the Jewish family. Yet, it might be argued that a marriage in tatters producing friction and even abuse does very little to improve the standing of kiddushin or provide for a healthy family atmosphere.

Halakhic prenuptial agreements that provide for the termination of a marriage without a get are already being proposed and, of course, being opposed. It will take halakhic experts of tremendous authority and courage to make these kinds of halakhic prenuptial agreements acceptable to majority of the Orthodox community. Initially, people who avail themselves of them will likely have to be willing to risk the marriageability of their children throughout the various sectors of the Orthodox community and their own standing in them for the sake of a moral principle. Such people are not easily found. Therefore, the complete removal of the ethical stain of get-recalcitrance from Orthodox Jewish circles is presently more aspirational than imminent.

 

The Halakhic Prenuptial Agreement and the Israeli Reality

In theory, the halakhic prenuptial agreement should not be necessary in Israel. Since the Chief Rabbinate controls marriage and divorce and has the power of coercion in the case of the latter, all recalcitrant parties, male or female, should be efficiently giving or receiving their get.The theory, however, does not match the reality. Often one of the parties presents a rationale for their recalcitrant behavior that does not provide halakhic grounds for coercion. Frequently, coercion that takes the form of garnishing a recalcitrant spouse’s salary, taking away his or her driving license or passport, or even jailing the party fails to achieve the desired results. At that point, the rabbinic court claims it is powerless to do any more, and the injured party must live with his or her injury.

Further, it should be noted that the Chief Rabbinate itself is often loath to use coercion and will often find excuses not to. For example, some rabbinic courts repeatedly suggest “Shelom Bayyit,” a basically wonderful Jewish value that suggests settling differences and working toward a harmonious and durable marriage. It is however cruel to send couples back to try this over and over again when their differences are demonstrably irreconcilable.

Sadly, also, some Israeli rabbinic courts’ judges are not particularly concerned about the personal lives of those who appear before them for divorces. Nor are some of them especially sympathetic to the suffering of people who live under the domination or greed of a controlling or rapacious spouse. This lack of empathy may be even more pronounced when one or both members of the couple are non-observant. The number of such dayyanim in the rabbinic divorce courts is the reason that the movie “Gett” resonated so deeply with Jews in Israel and abroad.

For these reasons while the halakhic prenuptial has a place in Israel, it is to some degree less useful there than in the States and other Western countries. Often the Chief Rabbinate’s court system asserts that the involvement of the secular Israeli courts in the halakhic divorce proceedings is overreach, and the results are a political tug of war in which the party being denied the get is the victim.

 

Some Solutions to the Present Israeli Get Recalcitrance Problem

Along with prenuptial agreements there are reforms that are desperately needed in order to prevent women and men from being trapped in dead marriages:

    1. government required reform of the Chief Rabbinate’s divorce court system and establishment of requirements that guarantee that the dayyanim who are part of it are trained not only in halakhic divorce law but in human relations;
    2. decentralization of Rabbinate control over religious divorce that would allow couples to end their halakhic marriages before batei din they consider empathetic and efficient. These batei din should possess the same powers of coercion that the Chief Rabbinate’s divorce courts presently have;
    3. creating a system of civil marriage for those who want it, outside the purview of halakhah, which would obviate the need for a get.

While these suggestions may sound like “pie in the sky,” at least the third is being pursued by several organizations here and abroad and is, frankly, the most feasible. The organizations I am referring to are the RRFEI (us!) in the States linked to Hiddush in Israel; the Jewish Religious Equality Coalition (J-REC) under the aegis of the AJC, whose purpose is advocacy for civil marriage in Israel and strategizing toward that goal; the Israel Religious Expression Platform (IREP), which funds formal and grass roots organizations working toward religious pluralism in Israel; and most recently, the Israeli Modern Orthodox and nationalist Ne’emanei Torah V’avodah organization, which produced an entertaining video for the Orthodox and non-Orthodox Israeli public on the detrimental effects on Israelis’ relation to Judaism engendered by the Chief Rabbinate’s control over marriage (and, I would add, divorce).

I believe strongly that we would do well to try to bring these forces and their material, intellectual, and strategizing resources together in order to realize the one goal that by these organizations’ consensus is deemed to be within reach.

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Three Points on the Halakhic Prenup

Featuring:
Rabbi Michael Chernick

Responses by:
Rabbi Elliot Dorff
Rabba Sara Hurwitz
Rabbi Daniel Siegel
Rabbi Mark Washofsky
Rabbi Deborah Waxman

By Rabbi Mark Washofsky
Solomon B. Freehof Professor of Jewish Law and Practice
HUC-JIR/Cincinnati

Rabbi Mark Washofsky

Rabbi Michael Chernick, my colleague at Hebrew Union College-Jewish Institute of Religion, has offered a comprehensive and thorough summary of the issues surrounding the halakhic pre-nuptial agreement. I find in it absolutely nothing to critique and very little to add. I do, however, have three brief comments, which are based upon a recent entry in the blog of the Solomon B. Freehof Institute of Progressive Halakhah (http://blog.huc.edu/freehof/2016/02/29/the-halakhic-prenup-a-great-idea-mostly/).

1. Don’t Let the Perfect Be the Enemy of the Good. Even if it passes halakhic muster (and, as Rabbi Chernick notes, it has encountered strong opposition from the haredi rabbinical community), the halakhic prenup does not solve the agunah problem. A recalcitrant husband can still refuse to issue a get to his wife so long as he can either evade the jurisdiction of the beit din or is willing and able to bear the costs imposed upon him by the agreement. Even with the prenup, the morally outrageous problem of the “chained” wife still exists under Orthodox Jewish law; thus, were we to judge the agreement by its ability to solve that problem, we would have to call it a failure. Still, we should not ignore the possibility the agreement can bring relief to some, and perhaps many Jewish women. Pragmatism is not a bad thing, and on that basis the Jewish world ought to welcome the determination of centrist Orthodox rabbis to utilize this measure as a way of doing what good they can.

2. Don’t Stop Working for a Real Solution. Let us not lose sight of this fundamental reality: the very existence of the agunah problem is an intolerable stain upon the reputation of Jewish law for equity and justice. The prenup, which is certainly better than nothing, is, again, not a solution to the agunah problem, which exists because traditional Jewish law does not empower the wife to divorce her husband. Rabbi Chernick refers to a variety of actual halakhic solutions that have been suggested over the years. I call them “solutions” because they would effectively terminate a marriage in the event of get-recalcitrance, with no need to resort to financial or other pressure – which may or may not work – against the husband. If any sort of “pressure” is needed, it ought to be exerted upon the Orthodox rabbinical community, the majority of which has stubbornly refused to countenance these proposals, to find a real solution.

3. To My Fellow American Reform Jews. As long as I’m criticizing the performance of the Orthodox rabbinate on the agunah question, I should not overlook the fact that the Reform rabbinate in the United States, of which I am a member, has done away entirely with gerushin, the legal requirement of Jewish divorce as a prerequisite for remarriage. I believe that decision to be an historical error; for reasons too involved to specify here, it was based upon arguments that are no longer persuasive, if they ever were. The American Reform movement could and should institute a truly egalitarian process of Jewish divorce for its members. That, too, is a “solution” to be pursued.

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A Conservative Response to the Orthodox Prenuptial Agreement

Featuring:
Rabbi Michael Chernick

Responses by:
Rabbi Elliot Dorff
Rabba Sara Hurwitz
Rabbi Daniel Siegel
Rabbi Mark Washofsky
Rabbi Deborah Waxman

 

By Rabbi Elliot Dorff, Chair
Rabbinical Assembly’s Committee
on Jewish Law and Standards

Rabbi Elliot Dorff

Rabbi Chernick has done a masterful job in describing the prenuptial agreement now in use in some segments of the Orthodox community, together with its strengths and weaknesses. To the extent that it has saved women from becoming agunot through the very threat of the husband being forced to pay a huge sum of money per day for refusing to give his wife a get, it is to be praised. In the United States, however, with a strong separation of religion and state, I wonder whether the civil courts will honor a prenuptial agreement of the parties to use the Orthodox court to settle their monetary disputes once they realize that what is involved is not only a monetary dispute but confirming a divorce in a religious act. New York courts in the 1970s varied widely as to how they viewed such prenuptial agreements, ultimately resulting in the Avitzur case of the New York Court of Appeals in 1983 that upheld a Conservative ketubbah that required the couple to submit to the jurisdiction of the court of the Jewish Theological Seminary and the Rabbinical Assembly; but that decision was by a bare majority, and it has yet to be tested in the federal courts.

 

The Conservative Ante-Nuptial Agreement

A much better way to prevent agunot, one that does not involve the civil courts at all, was created by the Conservative Movement’s Committee on Jewish Law and Standards in 1969. It is the “Ante-Nuptial Agreement” (which follows), in which the couple (primarily the husband) agrees that if they divorce in civil court and the husband authorizes issuing a get within six months thereafter, then their marriage was valid. Otherwise, their marriage was not a marriage from the moment it was celebrated.

If the husband does not authorize the get within those six months, this ruling does transform the couple’s sexual relations during their “marriage” from the status of sacred relations to licentiousness. However, it does not affect the ability of the woman or man to remarry or the status of their children. (In Jewish law, illegitimate children, mamzerim, are solely the products of adulterous or incestuous unions, not a union of two people who could be, and in this case were, married.)

The husband will still be pressed to issue a get, as it is the proper way to divorce in Jewish law, and if he subsequently wants to remarry, Conservative rabbis will require him to do so (get humra, a writ of divorce out of stringency). But, again, in the meantime, the woman is free to remarry. Furthermore, the document is in English, so people whose native language is English cannot claim that they did not understand what they were signing. Here is the text of the document:

            On the ___ day of __________, ____, corresponding to the _____ day of 
______  57___ [in the Jewish calendar],  in _________ [City and State], the groom, _______, 
and the bride, __________, of their own free will and accord entered into the following 
agreement with respect to their intended marriage.
            The groom made the following declaration to the bride:
            “I will betroth you and marry you according to the laws of Moses and the 
people Israel, subject to the following conditions:
            “If our marriage should be terminated by decree of the civil courts and if by 
expiration of six months after such a decree I give you a divorce according to the laws of 
Moses and the people Israel (a get), then our betrothal (kiddushin) and marriage (nissuin) 
will have remained valid and binding.
            “But if our marriage should be terminated by decree of the civil courts and if 
by expiration of six months after such a decree I do not give you a divorce according to 
the laws of Moses and the people Israel (a get), then our betrothal (kiddushin) and our 
marriage (nissuin) will have been null and void.”
            The bride said to the groom:
            “I consent to the conditions that you have made.”
Signature of the groom: ______________
Signature of the bride:________________
We, the undersigned, acting as a Beth Din [Court], witnessed the oral statements and 
signatures of the groom and bride.
________________ (rabbi)
______________ (witness)
______________(witness)

 

Annulling the Marriage

Ultimately, if the couple did not complete a pre-marital document and the woman is an agunah because the husband cannot be found, is mentally incompetent, or refuses to issue a get, the Rabbinical Assembly’s Beit Din will annul the marriage (haf’qa’at kiddushin). It can and does do this because the Talmud says that every Jewish marriage is valid only if the rabbis agree to it (Yevamot 90b; Ketubbot 3a; Gittin 33a, 73a)– very much like the fact that civil marriages are valid only if they fulfill the laws of the state. At the same time, because the Torah (Deuteronomy 24:1-4) and subsequent Jewish law maintain that the standard way for a couple to dissolve their marriage is for the man to give his wife a writ of divorce, even when a marriage is annulled, thus freeing the woman to remarry, if the man later wants to remarry, Conservative rabbis require him to give such a writ (a get) to his wife to reinforce the standard way to dissolve a marriage. About twenty or thirty annulments are granted in any given year, freeing the women involved to marry again.

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My concerns with pre-nuptials and civil marriage in Israel as solutions

Featuring:
Rabbi Michael Chernick

Responses by:
Rabbi Elliot Dorff
Rabba Sara Hurwitz
Rabbi Daniel Siegel
Rabbi Mark Washofsky
Rabbi Deborah Waxman

 

By Rabbi Daniel Siegel
Founding Director, Integral Halachah Institute
ALEPH: Alliance for Jewish Renewal (Canada)

Rabbi Daniel Siegel

As a new member of RRFEI, I am honoured by the opportunity to contribute to this learned discussion.

At first, I endorsed and used pre-nuptial agreements, seeing in them exactly what Rabbi Chernick sees. Over time, however, I became unsatisfied with this and the other options he lists. My concerns with seeing both pre-nuptials and civil marriage in Israel as solutions to the problem of divorce inequality and the agunah include:

  • The objection from the Orthodox “right” that pre-nuptials turn to civil courts, is one which I share. When pre-nuptial options were first proposed, it seemed that we were admitting that we couldn’t solve this problem on our own and needed to invoke the support of secular courts.
  • I also agree with the asmakhta argument as well. When I encouraged people to sign a pre-nuptial, I often got pushback and outright refusal. In the end, there is no substitute for being able to work things out in the present, just as Rabbenu Gershon did when he changed the function of the ketubah as it had been used, something that poskim as early as Rabbenu Asher observed and which has been reaffirmed in our own time.
  • I once participated in the invocation of an annulment, really a Kiddushim Al T’nai. It felt uncomfortable to annul a marriage ex post facto and, while it is not a bad idea in theory, it seemed to invalidate the years of marriage and the status of the children as a woman seeking a get once wrote me.
  • Most fundamentally, Rabbi Chernick does not really deal with the objections from the “left” but rather suggests patience while others try to plug the remaining gaps. However, all three proposed solutions continue to rest on the same two assumptions. In reverse order, setting up a civil alternative to rabbinic marriage in Israel is still a tacit admission that, in the end, this problem cannot be fully resolved from within the halachic process. Second, where kiddushin and gittin are still relevant, the assumption that the woman must remain passive goes unquestioned. Thus, women are still dependent on courts with male dayanim and on the power and willingness of these men to use their authority for their benefit.

Since “Pie in the Sky” options have already been proposed, I suggest the following:

  • We open ourselves to a halachic conversation which lets go of denominational claims to greater authenticity and accepts different approaches to the halachic process as equally valid and worthy of respect. This includes separating a commitment to the halachic process from the quantity and intensity of observance of particular mitzvot.
  • We expand the parameters of our halachic conversation to include the renewal of the Jewish commitment to bring about a redeemed world. One way to do this is to require halachists to respond to new conditions which change our sense of how to implement what we know is ethical. Nowhere is this more urgent than the need to equalize the relative power of both husband and wife, as the Rosh believed had been the intent of Rabbeinu Gershom.
  • Whenever possible, the preference is for both the husband and the wife to give each other a get, thus maintaining the male half of the equation.
  • The real way to solve the agunah problem is to have the same courage that earlier rabbis demonstrated when needing to make fundamental changes in direction. Long ago, before there was such a vast library of accumulated precedent, the Rambam invoked both et la’asot lashem and “better to eat the sauce than the fat” in one t’shuvah. More recently, the observation that “times have changed” allowed the Chatam Sofer to permit a Jewish doctor to be driven on Shabbat to see even a non-Jewish patient and for R. Yechiel Weinberg to celebrate the Bais Yakov schools and permit bat mitzvah celebrations.
  • Thus, in extreme cases where the husband absolutely refuses to participate in the get process, a woman should have the right to write her own get and a rabbinic court should be willing to receive it on behalf of the husband if he refuses to accept it himself.
  • In keeping with the prevailing halachic thinking that it is better to be maykil for the majority, I think that this should become the mainstream option. For those who wish to be machmir, they can continue to use the currently available options if they so choose, just as those who choose to be glatt kosher do not invalidate “ordinary” kashrut.
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The equal opportunity to practise Judaism according every individual’s beliefs in Israel

Rabbi Mark Levin, Editor-in-Chief, Rabbis for Religious Freedom and Equality in Israel newsletter

The vision of Hiddush and the Rabbis for Religious Freedom and Equality in Israel opens with these words:

Imagine an Israel where Judaism blossoms in all its nuanced shades and colors; where religious and secular movements flourish side-by-side and those who explore beyond Judaism in search of meaning are able to forge new spiritual paths within Judaism.

We are the only organization in the Jewish world with the single mission of bringing pluralistic Judaism to the world’s only Jewish state. We take no sides in the competition between religious or secular Jewish movements. We believe that Israel is the State of all of the Jewish people who choose to live there, and we seek to enable Judaism to flourish by removing the interference or official state sponsorship of one stream or philosophy of Judaism over another. All Jews who believe Israel to be the homeland not only of Jews but of Judaism have a place among us.

A debate has flourished recently over ordination of women in the Orthodox world. Many of us possess strong opinions one way or another. Indeed, these ideas cross the streams. There are individuals within all of the movements who stake their claim on either side. Officially, according to the recent OU statement, the Orthodox movement opposes ordination of women as rabbis who issue piskei din, while the more liberal movements officially favor women’s ordination to be called by the title rabbi.

But the debate is considerably more nuanced within all of the streams. There are Haredim and Orthodox Jews who favor women’s ordination, and indeed there are women who function on a practical level as though they hold smicha. We used to say about Torah commentator Nehama Leibowitz, affectionately called just Nehama by all, that were she a man she’d have been Chief Ashkenazi Rabbi of Israel. Clearly the ferment in the Jewish world over this highly politicized issue roils, and feelings sometimes even set friends against one another.

Certainly we as individuals have our separate preferences and practices. But RRFEI has no dog in this fight. Our sole concern is that all of the Jewish people have the equal opportunity to practise Judaism according to their belief and conscience in the one place in the world dedicated to Jewish history and destiny. Judaism in Israel must be freed of state interference or intervention. The State of Israel must not favor one Jewish stream over another. To paraphrase Evelyn Beatrice Hall, “I disapprove of what you believe, but I will defend to the death your right to believe it.”

Let Israel fulfill her declared purpose of being the homeland for all Jews in which:

THE STATE OF ISRAEL will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture … (Declaration of Independence, emphasis mine)

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Manning up at the Kotel by Rabbi Daniel Landes

Originally posted on Times of Israel blogs:
http://blogs.timesofisrael.com/manning-up-at-the-kotel/

Rabbi Daniel Landes

The latest escalation in the attacks upon women praying as a group at the Kotel on the second day of Rosh Hodesh Adar is as remarkable as it is perverse. Senior rabbinic figures summoned hundreds of dati leumi (religious Zionist) teenage young women from their high schools to the Wall to protect its sanctity from women performing a religious act of quiet devotion.

I don’t think this has been done before in the religious Zionist world, to set women against women, by drowning out the voice of the prayer group with their own. In the laws of prayer, we have a principle that shtai kolot lo mishtamei – 2 voices can’t be heard so that a prayer leader must be of one voice. Applied here, we can be astonished at the implication that God will hear only the protesting, bused in girls’ voices. Are not their voices also drowned out by din and roar of their own opposition?

The perversity is of course deeper. This is the month in which we follow the story of Esther who emerged to save all Jews and began with calling upon all to fast and pray. Esther is classically celebrated as performing all her daring do with great tzniut (modesty). And I’m sure that is how these young women certainly have been raised and taught. Tzniut is always understood as going beyond the notions of what body parts are to be concealed. It is an all-encompassing stance, in which one does not put themselves first or shine a light upon their own performance. No Jewish ethical system can condone this mad Purim inversion of tzniut to mean infringing upon other women’s space to intimidate, shame, or frighten. And tzniut education has never meant to cause hatred. Senior rabbinic figures who ordered these girls to perform shamelessly do not allow the same girls to costume themselves as men for Purim fun. By what right do they order their students to don “manly” garb to attack women at prayer? Shame!

And the men leading the whistles and jeers at the women at prayer, way beyond the noise they create upon hearing the name “Haman” during the Megilah reading? Aren’t they commanded with the same tzniut? Of course, and every yeshiva curriculum teaches that quality intensively. I suppose they are more interested in the quality of their gevurah (heroism). But they really need to think about this. Jewish male heroism is expressed in several ways, especially: learning intensively, working and supporting a family, defending our country in battle. If they are bothered by women praying as a group then let them go back to the Beit Midrash, join the army, or go to school and get a job. Or all of the above. At the least they should consider the fourth definition, as found in the teachings of the Rabbis: “Whoso is a Gibor (hero)? One who conquers his passion,” and recognize the not so latent sexual obsession revealed by their violent responses to women.

As an Orthodox Jew, I have prayed individually and in a minyan in a wide variety of locations – valleys and hilltops; on a New York subway car headed to Brooklyn, in which someone needed to say Kaddish; resolutely seated during Kedushah in an El Al seat even though the other 9 wanted me to stand (but our teacher the late Rav Shlomo Zalman Aurbach maintained that one should not stand and inconvenience the other passengers and staff). I have prayed in a few Young Israels with record ear shattering decibel chattering. All Orthodox Jews, and others, have the know-how – keep your eye on the text, and your heart fixed on God. So, young, religious Zionist women, you know better than to let your teachers force you to act in a non-tzniut fashion like bratty boys. And young men, if disturbed by the women, just calmly walk away. You don’t really want to throw a hissy fit, now do you?

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NEW public opinion studies on marriage freedom in Israel

Exploring Israel’s Jewish and Arab sectors, as well as the Zionist Orthodox community

This week, new perspectives regarding Israelis’ views on marriage freedom and related issues were presented to the public.

After years of polling Jewish public opinion, Hiddush initiated a special study of both Israel’s Jewish sector and its Arab sector, and its findings were released on Valentine’s Day. On the same day, another study initiated by the Modern Orthodox NGO Ne’emanei Torah v’Avodah, which focused on the views of Israel’s Zionist Orthodox sector, was published. Since these issues are clearly high on the priority list of Israelis when it comes to matters of religion & state, and they directly impact world Jewry, we are making these reports available in the resource section of the RRFEI website. We’ll be glad to provide further insights and background to those who request more details.

  • Click HERE for Hiddush’s report on the 2017 Valentine’s Day marriage surveys of the Jewish and Arab sectors of Israel (Hebrew)
  • Click HERE for Ne’emanei Torah v’Avodah’s report on the views of Israel’s Zionist Orthodox community (Hebrew)

Hiddush’s dual study offers an eye opening perspective as to the differences between Jewish Israelis and Arab Israelis on these issues. The findings can be better understood given the great disparity between the percentage of Israeli Jews who define themselves as secular (~50%) and the percentage of Israeli Arabs who identify as secular (12%).

Also, of great interest is the fact that whereas in the Jewish sector, the principled embrace of the right to “marriage freedom” is carried into support for enacting civil marriage and divorce, while in the Arab sector, 76% embrace the principle, but only 43% support instituting a civil option for marriage and divorce. This may be attributed to the far lower awareness among Arab Israelis of the inadequacy of religious control over marriage. It may also indicate that if they were made fully aware of the extent to which the right to marry in Israel is infringed upon, they would lend their support to the necessary remedy. It’s encouraging that among younger Arab Israelis, one finds a great level of support for a civil choice (60%), even though the majority of them would prefer religious marriage for themselves. Further, the high levels of opposition within the Jewish and Arab sectors to polygamy; and the high percentage of support for a bride’s right to choose her partner are of great interest.

On a related issue, public attention was drawn in the last few days to the shocking case of a battered wife who was not granted a divorce by an Israeli rabbinic court. It is of little surprise, therefore, to see that among Israeli Jews, 66% do not trust the Rabbinic Courts, as was found in the Hiddush study.

For RRFEI members, the study of the views of the Zionist Orthodox sector in Israel is of great interest. Hiddush placed special emphasis the views of this sector and its subgroups in the 2016 Israel Religion & State Index. The new study further validates the growing openness of Zionist Orthodox Israelis to moving away from the current Orthodox monopoly over marriage & divorce. It also confirms the existence of a liberal subgroup within this sector whose views on such matters are far closer to those of traditional and secular Israeli Jews.

At the same time, it should be pointed out that the methodology adopted by the pollsters of this Zionist Orthodox survey and the drafting of the questionnaire pose some challenges. Hiddush’s study points to a level of 23% support among the religious sector (excluding the ultra-Orthodox) for instituting civil marriage & divorce. However, the media headlines on the Zionist Orthodox sector study declared a cumulative level of 49% support for the various alternatives to the Chief Rabbinate’s monopoly that were presented to the respondents. This wide gap can be understood, given the following qualifications of the latter study:

  1. The sample was not presented with the option of maintaining the status quo. This report does not really provide information as to the extent of support for breaking the Chief Rabbinate’s control, but only the level of support for different alternatives, assuming that an alternative will be established.
  2. The alternatives were not presented side by side, not only in comparison to keeping the “status quo”, but also not in comparison to each other. The questionnaire did not ask which of the following alternatives do you support (if one of them is to be chosen), but rather presented each independently and measured support for each of them individually.
  3. An interesting and challenging common thread can be found in comparing the responses to the different questions. The views of the younger segment of the sample seem to be consistently more conservative than the average. It will be of great interest to bear this in mind when we analyze further studies of the Zionist Orthodox sector to see whether this is indeed a consistent.

All in all, these studies reaffirm what we have seen in previous ones: There is a growing openness among Israelis to changing the age old, restrictive marriage & divorce framework. A clear majority support the enactment of a civil alternative, and there is a widespread resentment on the part of the public towards the policies pursued by their respective political representatives.

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Rabbi Uri Regev responds to “How to Finally Get Egalitarian Prayer at the Western Wall” (Tablet Magazine – Nov. 22., 2016)

Liel Leibovitz’s “How to Finally Get Egalitarian Prayer at the Western Wall” can be found HERE.

Rabbi Uri Regev’s response follows below:

Rabbi Uri Regev, Hiddush President and CEO; Executive Committee, Rabbis for Religious Freedom and Equality in Israel

Rabbi Uri Regev, Hiddush President and CEO; Executive Committee, Rabbis for Religious Freedom and Equality in Israel

As  Liel Leibowitz (LL) suggests, the non-Orthodox movements should broaden their appeal and avoid unnecessary conflicts. Nevertheless, I have strong reservations as to the specifics of LL’s perspective on what is “unnecessary conflict” and *who* the appeal should be broadened to include. I fear that LL, in as much as his credentials are impressive, may not be as authoritative on the relevant questions involving the Kotel controversy and the politics of religion & state in Israel, as he assumes in prescribing to the non-Orthodox movements how they should conduct their affairs.

LL suggests that the impasse over the Western Wall Agreement (WWA) was generated by the Nov. 2 demonstration by liberal North American rabbis, but this had very little to do with it. The impasse was ironically precipitated in party by the victorious Torah service at the Wall celebrated on February 25 during the CCAR (American Reform Judaism’s rabbinic umbrella) convention in Israel, which, by chance or Divine providence, took place shortly after the WWA was announced. Israel’s ultra-Orthodox leadership dug its feet into the ground at that point, and demanded that PM Netanyahu not implement the agreement. This was not a regular case of slow-paced Israeli decision making. Rather, the WWA was an exceptional case of an agreement slow in the making (more than 3 years of intensive deliberations), which received tacit endorsement from the political leadership of the Haredi parties, as well as the Rabbi of the Western Wall. It was achieved because it was viewed by the Haredi operatives as the lesser of all evils. What neither they nor the PM took into consideration was the extent to which this agreement would play into the hands of disgruntled Haredi rabbinic leaders in both the Sephardi and Ashkenazi communities who were looking for an opportunity to challenge the movements’ leadership, as well as the sensationalist urges of some key Haredi media outlets that refused to hold their peace in the face of an agreement.

While LL probably does have experience with “buearucratic Israel,” as he claims, this conflict has nothing to do with that, but rather with a theological conflict, which can only be won by “hard-sell tactics,” which LL objects to.

The more than 3 years of negotiations factored in all the normal measures of bureaucracy and more. We are left with an unfortunate arm wrestling between both Ashkenazi and Sephardi leadership who abhor non-Orthodox Judaism, and view it in Satan-like terms. Having publicly committed themselves to prevent even the slightest measure of State recognition of the non-Orthodox movements’ legitimacy, they are therefore (being pushed by their own grassroots vengeful rabbinic figures and) going back on their initial tacit consent by threatening the PM with the potential demise of his Government.

In the face of this kind of confrontation, no gentle touch will do the trick. Behind the scenes renegotiation will only result in further delay that will last as long as the non-Orthodox movements and their allies refrain from the “hard-sell tactics” that LL warns against.

None of this is intended to challenge the good will and sincere intentions of PM Netanyahu. I believe he genuinely wished to reach a compromise, and he sincerely desires to implement it. To his credit, one should add that he was the only PM to have open high level negotiations with the non-Orthodox movements of American Jewry over the primary bone of contention between the two communities – namely, “who is a Jew.” While Labor-led governments may have been more sympathetic towards liberal Judaism, they nevertheless refrained from creating the likes of the Ne’eman commission, which Netanyahu appointed to seek a solution to the conflict.

If Netanyahu is halting the implementation of the WWA, it is because its foes have put him on notice; as Rabbi Wernick noted, this is about Netanyahu not being willing to “risk the coalition over these issues.”

Frankly, unless the Haredi parties are bluffing (which they very well may be, given their State funding, governmental portfolios, and battalions of political appointees), one should realize how unlikely it is for Netanyahu to give up his government coalition over the symbolic Western Wall battle.

One possibility for non-Orthodox Judaism, along the lines LL suggests (to “broaden their appeal”), is to pressure the Labor and Yesh Atid parties as well as Netanyhu to consider establishing a civil Government Coalition, excluding the Haredi if they disband the Government. This would go a long way to addressing the unholy alliance of religion & politics in Israel, not only regarding the Kotel, but a whole array of truly critical issues involving the right to family, security, the economy, gender equality and much more. This is something a large majority of the Israeli public strongly favors – a civil government without the Haredi parties’ extortionist practices.

LL seems to omit one crucial factor regarding Israeli public opinion. He chooses to quote an Israeli official, with an implied endorsement to his views, as to the non-Orthodox movements being either clueless about Israeli politics or consciously sabotaging a resolution – or both. Readers may not be aware of the fact that such statements by Israeli officials often have very little to do with reality on the ground, and are primarily aimed at intimidating or de-legitimizing challengers to the Israeli political establishment. This Israeli official was engaged first and foremost in self-serving rhetoric, whereas the consistent truth regarding the Israeli Jewish public is that by an overwhelming majority, it rejects all aspects of the Haredi demands and pressures, opposes the Governmental policies on relgion & state, supports the views of the non-Orthodox movements regarding religious freedom & equality, and supports the Kotel compromise.

The Prime Minister and other political figures are pushing the non-Orthodox movements to keep quiet and have patience. This is not intended to help implement the agreement, but rather to get the non-Orthodox movements’ public pressure off their backs. The aim is not to reach a satisfactory resolution, but rather to gain time and refrain from upsetting the Haredi leadership. The negotiations will last as long as the non-Orthodox movements are willing to keep their peace. No resolution will be forthcoming without real pressure.

I, like LL, am very concerned about the growing rift between Israel and American Jewry. This threat is greater than the Kotel controversy and will not be healed merely by reaching a new compromise over the prayer arrangements. For as long as the majority of the children growing up in the American Jewish community today would not be treated as full Jews by the State of Israel (i.e. would not be able to legally get married in Israel due to the Chief Rabbinate’s monopoly over Jewish marriage), Netanyahu’s publicly proclaimed promise that he “will always ensure that all Jews can feel at home in Israel — Reform Jews, Conservative Jews, Orthodox Jews” will not be realized. The WWA is simply not enough to make that larger looming issue go away.

Lastly, while the challenge of worship freedom on top of the Temple Mount and at the bottom of the Temple Mount (i.e. at the Western Wall) are seemingly analogous, as LL suggests, they are worlds apart in reality. LL is right that freedom of worship should be supported regardless of whose freedom it is and where the worship takes place, but his analogy is unfortunate because whereas prayer on top of the Temple Mount is faced with serious security challenges, which go way beyond the limited question of freedom of worship, the challenge to prayer at the Western Wall raises no security question. Rather, it’s simply about a particular Jewish group that hates the non-Orthodox movements and the Women of the Wall, to the point of abusing the power invested in it to ban worship of a manner that is not prescribed by the Chief Rabbinate… even though this is in accordance with the way the majority of world Jews consider acceptable and legitimate.

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Israeli Reform synagogue vandalized, death threats conveyed with a knife

The Reform synagogue in Ra’anana was vandalized last night [LINK] in conjunction with the Western Wall controversy. Death threats were conveyed by placing a knife branded with a reference to Maimonides’ Laws of Killing, Chapter 4:10 – “If there is the possibility, one should kill them with a sword in public view. If that is not possible, one should develop a plan so that one can cause their deaths.” Next to the knife were notes bearing the names of the leaders of Reform Judaism in Israel and the USA. Graffiti was sprayed on the walls, referring to the sanctity of the Kotel, and reference to Obadiah 1:18,1:21, which speaks about burning down the “House of Esau” and re-establishing the Kingdom of God.

After the shock and nausea wear off, one might say that good may yet come from this act of violence: 1. This will strengthen the public’s and the police’s understanding that they must exercise a firm hand against these thugs who act in God’s name. 2. Verses quoted out of context are a danger to our society and country, whether they are used by violent goons or rabbis. 3. This is living proof of the shared fate of Diaspora and Israeli Jewry (Rabbi Rick Jacobs, Anat Hoffman, & Rabbi Gilad Kariv were all singled out in the death threats). Together, we ought to change this reality, and bring Israel to actualize its founding vision, which guarantees freedom of religion and equality for all.

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RRFEI Analysis: A new twist in the unfolding Kotel saga

Leading archaeologists insistently weigh in against the Government’s Western Wall agreement

This week witnessed a new twist in the unfolding Kotel saga.

At the initiative of leading Israeli archaeologists that approached a ready and willing Knesset committee chair, a public hearing was held regarding the Kotel agreement from an archaeological perspective [LINK]. Early on, we assessed that the archaeological angle could indeed develop as a significant challenge to the implementation of the Kotel compromise [LINK].

While there is no consensus among archaeologists as to the extent of the potential damage that implementation would cause to this singularly precious historic site, among the opponents one may find some of Israel’s leading archaeologists. They come to the issue without religious malice, but at the same time express a strong rejection of the compromise, based on objective scientific and historical concerns. When such opponents turned to a typical ultra-Orthodox opponent to the compromise who does indeed bear religious malice towards both the Women of the Wall and the Reform and Conservative movements (and happens to chair the Knesset Education Committee [LINK], whose turf includes archaeological matters) there is little wonder that their plea is met with a full court welcome; and the deliberations of the committee result with a public appeal to the Reform and Conservative movements and the Women of the Wall.

Two additional interesting elements of the meeting are worth mentioning.

  1. Anat Hoffman, leader of Women of the Wall, participated in the deliberation, and she responded to the archaeologists’ plea, saying: “we never wanted this, and we said so.”
  2. While the opposing archaeologists put forth a weighty challenge to the agreement, another senior archaeologist said that he did not share the all-out assault upon the agreement, but rather pointed to the potential to maintain a proper balance between archaeological value and the current needs of worshippers, indicating that the agreement can be regarded as meeting that necessary balance.

None of this is surprising, and it indicates that there is yet a turbulent path forward, in which significant circles that come from outside the pluralism debate insistently weigh in, and they play into the hands of those who never wanted to see the site turned over to the Women of the Wall and the non-Orthodox movements. At the same time, given the impediments put in the agreement’s path, this may serve as a basis for giving greater credence to the new front opened by the non-Orthodox movements, reflecting the wishes of the Women of the Wall. Namely, moving the eye of the storm back to the traditional Western Wall plaza, rather than the Robinson’s Arch section.

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