Articles & blog posts

Response to the tragedy at Tree of Life synagogue

Special Statement

Response to the tragedy at Tree of Life Synagogue

Ruach Hiddush Executive Committee
Rabbi Prof. Michael Chernick (Chair), Rabbi Les Bronstein, Rabbi Pam Frydman, Rabbi Elliott Kleinman, Rabbi Mark Levin, Rabbi Asher Lopatin, Rabbi Gordon Tucker, Rabbi Elyse Wechterman, Rabbi Uri Regev (Hiddush President and CEO)

Ruach Hiddush, the rabbinic and cantorial association working toward religious equality and freedom in Israel, and its Israeli patron, Hiddush, turns its attention to the tragedy that occurred at the Tree of Life synagogue this Shabbat. We mourn the loss of life and injuries sustained by the Tree of Life family and the suffering of the larger Pittsburgh Jewish community. We beseech God to spare them and all of us from further sorrow due to senseless hatred which leads to acts of violence and murder.

We thank the law enforcement agencies that came to the rescue of our fellow Jews and pray for healing for those of them who suffered wounds on our people’s behalf.

To our great sadness, demonization of the Other has become an almost worldwide scourge. It is true here in the United States, in Europe, and most tragically for the Jewish people, true of the political, religious, and social scenes in Israel.

Ruach Hiddush condemns in no uncertain terms the underlying causes of this plague: religious intolerance, racism, sexism, xenophobia, and denigration of the Image of God which grants inestimable value to every human being.

We ask each of our members to speak out forcefully against the descent into tribalism and incivility here and abroad that has become rife in today’s world.

May our words and actions put an end to tragedies of the sort that occurred at Tree of Life synagogue. Then we and those who join us on this path will be among those who become partners with God in bringing salvation to a world much in need of it.

May God grant comfort to the Tree of Life family, and may we all merit God’s greatest blessing: Shalom.

In defense of the right to care – by Rabbi Pam Frydman*

Rabbi Pamela Frydman, Executive Committee Chair, Ruach Hiddush

I believe it is unfair to claim that Jews of the Diaspora have developed an obsession for the Kotel, the Western Wall, as Peter Joseph stated in his article in The Forward. Love of the Kotel has been a carefully cultivated interest and passion fostered by Jewish leaders for centuries in order to keep our people connected with the only remaining remnant of the structure that surrounded the hill on which the Holy Temple stood in ancient times. Prior to the founding of the Modern State of Israel, the Kotel was known as the Wailing Wall. After the Wall became part of Israel during the Six Day War, its name was intentionally changed to Western Wall in order to continue to inculcate the strong connection to the Wall among Jews both in Israel and in the Diaspora.

Even today, the Kotel is precious to millions of Israeli Jews, in particular, those who embrace an Orthodox Zionist or Haredi lifestyle. Tragically, many such Jews not only love the Kotel and visit often, but they also viciously harass Women of the Wall and Reform, Conservative and other Jews who visit the Kotel to pray and connect each in their own way. See, for example, the school girls who blocked a busload of Women of the Wall worshipers while flipping them the bird on Rosh Hodesh Shevat. (http://mailchi.mp/womenofthewall/women-of-the-wall3-2689098?e=d504ecbfb3)

I believe Joseph is right that there is also a preponderance of Israelis who do not care about the Kotel and it is also true that these tend to be the very Israelis who are struggling with not being able to marry in their own homeland. I believe, however, that the problem is one of perception and not reality. Modern non-Orthodox Israelis have lost the connection that previous generations had with the Kotel because the Kotel no longer provides a venue where children and teens can visit during school-based field trips because secular educators feel uncomfortable bringing their classes to a place where boys and girls must gather separately and everyone must cover up in ways that are foreign to them. Not only do school children miss the age-old opportunity to visit the Kotel, but non-Orthodox families visiting Jerusalem also tend to avoid the Kotel because they also do not feel safe in a gender-separated environment where their clothing and lifestyle are shunned.

Were the Kotel compromise to have been implemented, there could be a new atmosphere fostered by a single unified entrance and signs that tout both gender separation and egalitarian worship as though these two venues were each facets of the same faith, which they actually are. It is this very diversity and the accompanying empowerment of those who practice non-Orthodox forms of Judaism side by side with the continuing empowerment of those who practice Orthodox and Haredi forms of Judaism that would help to heal the rift and allow non-Orthodox and Modern Orthodox Jews to return to the Kotel in safety as they refine and redefined their connection to the site.

I fear that the divide between Israeli Jews and North American Jews is a divide being fostered by those who wish to insist that they are right. The fact is, however, that no one is right and yet everyone is right. Haredim are right that there must be a place at the Kotel for gender separate worship, including a space where women may pray alone and in silence or low voice. Egalitarian Jews are also right that there must be a place at the Kotel for people of all genders to pray together. North American Jews are right that when they visit Israel, they are entitled to visit the Kotel in safety and with women being allowed to wear tallitot and tefillin and read from Torah scrolls just as men do.

Telling people that they are wrong has never been good for retail sales. Tourists are not going to flock to Israel and spend their money there because we tell them that the tourist view of Israel is flat out wrong and they should worry instead about the needs and sensibilities of the natives. Instead of telling North American Jews to mind Israel’s business by trying to get into the Israeli Jewish headspace, why not tell North American Jews to “come as you are, be Jewish the way you are and while you are there, hang out with Israelis and see what it’s like to live in our Jewish homeland.”

Israel is a nation of strong vibrant contributors in many fields, including science and agriculture. A procedure honed at Rambam Hospital in Haifa helps people with Parkinson’s to overcome tremors. Kibbutz Yotvata enjoys lower temperatures and higher humidity than its Negev surroundings through agricultural techniques that help the desert to bloom. Yet despite the excelling of Israelis in the fields of science and agriculture, Haredi public schools do not teach science to boys. It is a well-known fact that the Rambam, Maimonides, whose teachings are basic to modern Judaism, was himself a physician. It is noteworthy, however, that science is not denied to Haredi boys in order to keep them from being like the Rambam. Rather, they are denied science in order to keep them focused on the Haredi lifestyle.

When tour groups start learning about the Haifa based procedure that cures tremors and the southern Kibbutzim that keep the desert blooming together with the plight of Israeli citizens who must leave their homeland to get married or who live together and raise children without being able to marry, then, and only then, will we start to develop a common language among Israeli and Diaspora Jews of non-Orthodox persuasions.

Haredim are already sharing their ideas and realities across the Israel-Diaspora divide. It is high time that Reform, Conservative, Reconstructionist, Renewal and secular Jews do the same. Developing connections between like-minded and similarly-practicing Israelis and Diaspora Jews will be good for Israel because it will increase the possibility that Israel will have strong Jewish allies in the Diaspora for hundreds of years to come. It will also be good for Diaspora Jews to feel assured that in 50, 100 and 500 years from now, their descendants will still be considered Jews under the Law of Return so they can make Aliya if they wish, or if, heaven forbid, their Diaspora surroundings require them to flee.

A fine education must be available for all Israelis regardless of whether they are Jewish or of another faith or of no identified faith. Among Haredi Jews, a fine education that includes math, science and technology might also turn out to produce future Talmudists and Chassidic thinkers who will do their people proud. As we have seen, however, we cannot legislate this into reality as evidenced by the fact that newly approved legislation requiring math and science in Haredi schools for boys was overturned as soon as Haredi parties returned to the government coalition. Other methods must be found. I do not know what those other methods might be, but if we open to the notion of welcoming all Jews to the conversation together with their values and interests in tact, rather than telling large swaths of the Jewish world that their values and interests are wrong because they care about the Kotel and not the lack of freedom to marry, we might just find that Jews in Israel and the Diaspora will come up with the answers and implement them before our very eyes.

What if the tour of the Parkinson treatment center at Rambam Hospital was accompanied by a Herzl-type “im tirtzu ein zu agaddah,” “if you will it, it is not a dream” speech telling tourists that just as scientists found this miracle cure to eradicate tremors, so Israel must find miraculously ingenious ways to evolve Judaism under the careful scholarship of future Rambams who parse Jewish law and values in accordance with science, mathematics and halacha. As James Bond says, “never say never.” It could happen and we can be part of hastening its arrival by doing just what we are doing now, but with a positive spin such as the one offered by the Bat Kol, the feminine mystical voice, that announced to the divergent Schools of Hillel and Shammai, “these and these are the words of the Living God.”

*Rabbi Pam Frydman is Chair of Ruach Hiddush, Rabbis and Cantors for Religious Freedom and Equality in Israel. Pam writes, “I dedicate this article to my friend and teacher Rabbi Uri Regev who is a shining example of how to walk our talk and talk our walk, and with gratitude to Rabba Sara Hurwitz who points out that needing to be right stands in the way seeing from the point of view of the other, and to Rabbi Les Bronstein, Rabbi Marcia Prager and Rabbi Simkha Weintraub whose commitment to a Jewishly diverse Israel and Clal Yisrael are breathtaking.

Reform Judaism in Israel: an amazing success story, by Rabbi Micky Boyden

Rabbi Michael Boyden

When one reads about the way in which Bibi backtracked on the Kotel agreement and the disgraceful manner in which the Women of the Wall are treated by the police and security personnel, one could be mistaken for believing that Reform Judaism is having a bad time of it in Israel.

If you add to that the dislike that many feel for Israel’s right-wing/religious coalition government, one can see why many Reform Jews in North America and elsewhere are lukewarm about the Jewish State. That having been said, the High Holy days are approaching and it is time to put the record straight.

Reform Judaism in Israel is, by and large, an amazing success story. Thirty years ago there were only a handful of congregations and not one single purpose built Reform synagogue anywhere in Israel apart from at Leo Baeck in Haifa and HUC in Jerusalem. We were viewed as an American outpost, whose supporters were almost entirely from English speaking countries. There were maybe two or three couples a year who dared have a Reform rabbi officiate at their wedding.

Fast forward thirty years. There are some 50 Reform congregations across the country. Religious pluralism is part of the landscape much to the dislike of the charedim. Many Reform synagogues are being built on public land. The Reform Movement runs a national conversion programme reaching out to over 200 gerim per year. Their conversions are recognized by the State of Israel for registration purposes. We are inundated by couples wishing us to officiate at their weddings. These requests, and indeed all of the Bar Mitzvah ceremonies at which we officiate, come from so-called “secular” Israelis disgusted by the religious establishment and looking for a liberal Jewish alternative.

Of course, many people don’t like Bibi. (I know one or two people who aren’t that happy with Donald Trump either!) However, that doesn’t stop us from loving our country and working for a better tomorrow.

I hope many of you will feel that this is a message that you can share with others.

Micky Boyden
Kehilat Yonatan
Hod Hasharon
ISRAEL
www.kehilat-yonatan.org

Comprehensive interview with Rabbi Shlomo Riskin in Israeli media

A recent detailed interview with Rabbi Shlomo Riskin appeared in the original Hebrew in Makor Rishon earlier this month, with select paragraphs translated into English below.

 

Partial translation of Rabbi Riskin’s interview

“If I could ask God one thing, I would ask: How is it possible that the Talmud is the most pluralistic piece of literature, but those who study it are the most narrow minded?” says Rabbi Shlomo Riskin. “It’s a shame, and it destroys and distorts the halakhah. Without adhering to halakhah [the Jewish people] cannot hold out, but in my opinion the greatest praise [due to] the Torah is that it is not singular. Our halakhah is pluralistic. The Chief Rabbis of the past understood this as well. Chief Rabbis Herzog and Goren did brave things when necessary. That’s how halakhah has always been, and that what we teach our students.”

“You’re opening a Pandora’s box,” says Rabbi Riskin when I ask him whether he believes that this chain of events proves that religion and the state must be separated. “I will say this in the clearest possible way: “When there is a Chief Rabbinate that is exclusivist, and it is not willing to accept rabbinical courts that rule such and such, within the framework of halachah, this is a problem. I certainly would not want to see conversions that are not halakhic. The aspiration is for every Jew in Israel to be able to marry any other Jew in the country, and for that purpose we must give [state recognized] power to conversion projects. We do not want a society in which there are Israelis who are ‘good Jews’ and Israelis who are not properly Jewish. Unfortunately this is what will happen if they [continue to] limit opportunities for conversion. And that would be a shame, a pity, a shame. So I think separation would be better. And I say this in tears.”

If the rabbinate recognizes Halakha in a singular, closed, or even [exclusively] ultra-Orthodox way, is it necessary to separate religion from state?

“I say it with tears, but yes.”

On the other hand, you can probably understand the concern regarding private courts for conversion. After all, there is no uniformity in case law, and there is no control over the entrance gate to the people of Israel.

“But there was never uniformity or control, and in the past they understood that there was a need for a House of Hillel and a House of Shammai, and ‘these and those are the words of the living God.’ If other Orthodox rabbis have halachic-based sources, how dare you say they are not Orthodox?”

In the Conservative movement, there are rabbis who call for recognizing Judaism as ‘passing’ from the father [to the child], and not only through the mother.

“I do not know about that. I respect the members of the Conservative movement, and I also think that the way the Chief Rabbinate expresses itself regarding them is very unfortunate. On the other hand, many of them do not see themselves as committed to the Talmud and the Shulchan Aruch. I also think it’s legitimate that the establishment Rabbinate here in Israel is Orthodox.”

“… In many matters I am more stringent than the ultra-Orthodox, but unlike them, I do not invalidate the conversions of others. If you are an Orthodox rabbi, your conversion should be acceptable. There should not be a blacklist…”

“The great miracle of the Land of Israel is that it belongs to all the people of Israel: to the collective. Anyone that is there. I have no problem that the establishment be Orthodox, but it should include those who are not Orthodox.”

“Rabbi Lau once said something like ‘Rabbis Riskin and Stav will convert anyone who wants to convert.’ I spoke to him and explained that I’ve never converted anyone without his/her acceptance of the Jewish religious commandments, and he apologized, but he does not understand the reality of American Jewry.”

Is there indeed a crisis with American Jewry surrounding the Western Wall and the new conversion law, or is it an exaggerated media spin?

“There is a very big crisis,” he replies without thinking twice. “I’m not sure it will be possible to resolve this.”

The solution that was reached in the first place regarding the Western Wall – the establishment of an egalitarian plaza in the southern part, near Robinson’s Arch, is “an excellent option.” Rabbi Riskin was even pleased by the Reform and Conservative demand that one entrance lead to three sections – for men, women, and a mixed one. “They wanted joint entry for all the people of Israel together, and that’s exactly what I want. Where is your ‘love of Israel’?”

To what extent is the left wing of Orthodoxy far from the right side of the Conservative movement? In Efrat there are synagogues that are very reminiscent of other streams, allowing women to read the haftara, for example.

“First of all, we in Efrat perform prayers with a divider between women and men, which is the greatest difference; and we observe the laws of prayer as written in the Shulchan Aruch. I oppose Conservative Judaism, and I do not accept what they call their ‘halachot’. But, Lord of the Universe, I must love them, respect them. I also call them my partners. We have a lot to do together, especially in the war against anti-Semitism. You have to understand that conservative Jews reach people that an Orthodox rabbi, even a Chabadnik, will never reach. They try to bring them closer in their own way. I also call Reform Jews my partners. I do not accept their synagogues, which use electrical appliances during Shababt, but even if we disagree – [our] task is the same.”

“I do not understand how the rabbinical establishment calls them ‘goyim’ or ‘apikorsim’. This is not okay. It cannot be a question of the face of halakhah, and I will not agree that this is my establishment. They are part of the Jewish people, and they, for example, do not declare that Orthodox Jews are ‘not religious’.”

The positive attitude towards Reform and Conservative Judaism, says Rabbi Riskin, can also benefit Orthodoxy. “Many graduates of their schools and camps eventually came to me. Before participating in those same Conservative activities, they were not ready to reach me. Minister Naftali Bennett visited a Conservative school in New York, one of the Chief Rabbis of Israel said that he should not have gone (Rabbi David Lau). Why not? I receive with open arms every invitation from a Conservative institution. I speak halacha and Torah to them. What could happen? Thank God, many times they started praying at my synagogue after such visits. There was also a well-known Reform rabbi who began visiting his mother, who prayed in my synagogue. He would come to us on every ‘Yom Tov Sheni’ holiday of the diaspora, and as a result he decided to become Orthodox.”

“The marriage covenant between Judaism and politics destroys religion and destroys politics. That’s the big problem. Religious MKs must have values that are above politics, above voting, but that is not what happens.”

On another issue, Rabbi Riskin found himself in the camp under attack. Criticisms were leveled against him and against the Rabbis of Tzohar, Beit Hillel, and the RCA (the umbrella organization of the Orthodox rabbis in North America) for supporting halakhic pre-nuptial agreements, which are supposed to prevent [women from becoming] agunot. “I think that what is happening in this regard is a scandal,” Rabbi Riskin explains the need for such agreements, “There is a serious problem regarding the refusal of divorce. It is written in the Torah, ‘And he wrote her a book of separation,’ and from this it follows that the husband gives [his wife] the gett [divorce document] in a unilateral manner. I believe with all my soul in Torah from heaven. Four thousand years ago, when God gave His Torah to Moses, there was no chance that a woman would want a divorce; She did not have social or economic status so the man would give the gett. But our wives are not captive to their husbands. We have to find a solution to this phenomenon of husbands who refuse to divorce their wives, and there are many solutions. I wrote an entire book about it. There is also disagreement in the Gemara as to whether this stems from the Torah or from rabbinic law. At the time of the Talmud, the solution was to ‘beat him until he says I want [to divorce her]’, but this is impossible to implement today.”

Would you support beating the husband if it was legal?

“If there was no other way – and the reality is that there is another way – I would advocate for it. What can we do? The rabbinical court may require a gett (divorce document), and if the husband refuses – he can be put in jail, and his license to practice his profession can be revoked, if he is a doctor, and so on. There is also the issue of a prenuptial contract, but the rabbis are not willing to use it for the most part. The prenuptial contract actually says that anyone who does not want to give or receive a gett must pay a high sum every month until (s)he cooperates. I wrote about this in the books of Yad L’Isha, which received the consent of Rabbi Yaakov Bezalel Zolty, who was the chief rabbi of Jerusalem. And now the rabbis say that this creates a “fake gett” (Which does not stem from the husband’s will, and is therefore not kosher) and should not be used. Maimonides himself, on the basis of the Gemara, used a mock gett when he ruled halachically: ‘Force him until he says, I want [to divorce her].’ The reason for this is that ‘our wives are not captives under their husbands’. Moreover, the Rambam writes about the verse, ‘good and righteous judgments,’ and explains that our halachah must be good and just, which, for Maimonides, is the essence of the Oral Torah.”

Rabbi Riskin notes another objection that he has from the Maharam: “Some [women rabbis] call themselves a rabbi or a rabba. This is not forbidden, but I do not think that a woman can be equal to a man like the ‘master’ of a synagogue. After all, the main function of the synagogue is to pray in public and to read from the Torah, and a woman cannot fulfill a man’s religious obligation because she herself is not obligated.”

Can she lead the ‘Kabbalat Shabbat’ service?

“I do not see this as a halakhic problem, since even a minor can conduct the Kabbalat Shabbat prayer, but from an educational point of view I would not recommend that a woman do it. If you begin with Kabbalat Shabbat, you may also get to the evening prayer service – and that’s problematic, because a woman cannot fulfill the religious duty of the community in matters of holy prayers.”

Recently, the issue of halakha’s attitude towards homosexuals has been raised again and again – both on the public level and within religious communities. What is your position on the subject?

“We can not allow what the Torah forbids. On the other hand, there is the principle of ‘God exempts in cases of coercion/force’.” [referring to the prevailing scientific view that homosexuality is an inherent orientation, not a choice]

“The Torah exempted the ‘forced one’ from the obligations stemming from what he did. I want to suggest something: In the verses that speak of homosexuality, the word ‘abomination’ is written, and in this context the Gemara defines it as ‘wrong with you.’ In the days of Socrates and Plato, many Greeks were bisexual, and the philosophers actually preached to be gay, because then there is no complexity of [having] children. They did not believe in childbirth at all. I think that’s what the Torah is talking about: Someone who could be heterosexual, and choses to be a homosexual, it is said ‘you are wronging God.’ The religious concept of ‘the forced one’ only relates to those who cannot be [sexually] satisfied any other way.”

“My approach is that every Jew should be loved, wherever he is. We must permit homosexuals to receive religious honors at the synagogue. I do not ask them what they do in their privacy; it’s not my business. Judgment is for God.”

Would you marry them?

“A wedding would not be correct [according to the Torah], but a contract of couplehood is possible. It is better in my eyes that they should live together than have to go around meeting in public places. That’s certainly not good.”

Social justice, rather than immutable precedent, must govern the civic life of Jewry

Featuring:
Rabbi Michael Chernick

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

By Rabbi Deborah Waxman
President, Reconstructionist Rabbinical College
/ Jewish Reconstructionist Communities

Rabbi Deborah Waxman

The ongoing existence of agunot in the aftermath of World War I and the inadequate responses of modern rabbinical authorities to the unjust and painful situation of these women were critical factors that impelled Rabbi Mordecai M. Kaplan to move beyond a halakhic system and begin to articulate a Reconstructionist approach to Judaism. In his 1936 essay “The Status of Woman in Jewish Law,” Kaplan analyzed ways that halakhah mandates women to second-class status, most especially around marriage (“it is in the marriage relationship chiefly, where the woman’s inferior status is fraught with tragic consequences to her”) and divorce (“the woman experiences the worst effects of her status when she can no longer continue to live with her husband”).  After assessing contemporaneous efforts to resolve this problem as either regressive or ineffective, Kaplan concluded that halakhah was an insufficient medium of repair and declared:  “[S]ocial justice, rather than immutable precedent, must govern the civic life of Jewry and underlie…juridical institutions…”

More than 80 years later, contemporary Reconstructionist practice builds on Kaplan’s original analysis and falls squarely within the feminist critique articulated by Rabbi Chernick, which points to why for most Reconstructionists his solution feels ultimately inadequate.  In a post-halakhic approach, Jewish divorce becomes an opportunity to enact ritual in the service of the spiritual and emotional transition of the people involved.  The focus becomes meaning seeking rather law observance.

The problem of agunot is eliminated by empowering women as actors within this ritual, preferably in an egalitarian procedure where both partners divorce each other rather than investing all power in one individual (historically and halakhically, the man in a heterosexual relationship).  In the instance when a man refuses to give a woman a get, she is then empowered to initiate on her own (and vice versa—post-halakhic Judaism has also created the possibility of agunim and must accommodate same-sex Jewish marriages).  Since single-initiated divorce can be disempowering to the person who does not agree, the Reconstructionist movement has also created a ritual of release from relationship to accompany civil divorce—not identical to a get, but clearly communicating that the ritual enacts the desires of only one member of the relationship.

Even before the establishment of the State of Israel, Reconstructionists have been concerned about the potential totalitarian implications of religious authority married to state power.  The persistence of agunot in Israel despite the power of local authorities to resolve them highlights the problematic nature, rather than revealing redemptive possibilities.  For these and other reasons, most Reconstructions insist on religious pluralism in Israel and prefer, as does Hiddush and RRFEI, separation of synagogue and state.

New IDF order allows non-religious funeral for fallen soldiers

After decades in which soldiers could only be laid to rest in Orthodox religious ceremonies, the IDF now allows soldiers or their next of kin to choose whether to have a religious or secular service and whether to be buried in a military cemetery or a regular one.

The IDF has changed its orders allowing families of fallen soldiers to determine whether to have a religious or civil funeral, the NGO Hiddush said Sunday.

For decades, the military order dictated that soldiers would be laid to rest in an Orthodox religious ceremony, led by a military rabbi and in accordance with Jewish law.

Hiddush, which fights for religious freedom and equality, has been waging a long legal battle against the IDF on this issue. It petitioned the High Court of Justice against the order and even held talks on the matter with the Defense Ministry’s previous legal adviser, Ahaz Ben-Ari.

Read more: CLICK HERE

The Chief Rabbinate vs. The State of Israel and the Jewish People

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

Criticism of the Israeli Chief Rabbinate is nothing new. It has often been voiced in the RRFEI newsletter and resources, as well as in Hiddush’s materials. It covers a myriad of issues, which in recent years include its delegitimization of Modern Orthodox attempts at addressing the Rabbinate’s failures in the areas of conversion and kashrut certification.

Developments in the last few days regarding the Kotel controversy bring me to focus again on the Chief Rabbinate, pointing to the fact that the institution itself stands in sheer conflict with the notions of democracy and the rule of law in Israel, as well as the realities and interests of the Jewish people worldwide. A lengthy document presented by the Chief Rabbinate this week manifests a real threat to the State of Israel and the Jewish people, which is frequently underestimated and misunderstood by both Israelis and Diaspora Jewish leadership.

For the benefit of RRFEI members, the original 13 page document submitted by Chief Rabbi Lau’s team, in Hebrew, can be download HERE. The document is intended for public consumption and was presented at a Knesset hearing. It is presents the Chief Rabbinate’s position on the pending Supreme Court case regarding the Kotel and the demand that the Rabbinate be allowed independent representation before the Supreme Court, rather than be represented by the Israeli AG who represents all agencies of the state.

In assessing the threat emanating from the Chief Rabbinate, beyond its attempt to dictate norms of worship for all Jews at national sites like the Kotel, one should only look at the Rabbinate’s recent initiative to establish a global ‘Jewish lineage’ database (already in motion, funded by the State of Israel) and Chief Rabbi Yosef’s public lashing out at Rabbi Dweck in London, who dared to present the complexity of Orthodox attitudes towards homosexuality and the need for sensitivity and embracing of homosexuals. Chief Rabbi Yosef came out with a public pronouncement, declaring that he is “amazed and angry at the words of nonsense and heresy that were said about the foundations of our faith in our Torah.”

The selection of quotes below from the Rabbinate’s lengthy document will illustrate the wide chasm between its views and those associated with a democratic society. I dare say that no RRFEI members would tolerate the mindset and demands of the Rabbinate, if they were made in the USA or elsewhere. As you also know from Hiddush’s systematic public opinion polling, Israelis don’t endorse this outlook either; the lack of political backlash can only be explained by the cynicism and utilitarianism of Israel’s political infrastructure, as opposed to the public will.

Quotes

  1. “The Supreme Court does not have the authority to adjudicate the petitions regarding the Kotel… matters pertaining to prayer arrangements at the Kotel, the tradition, the halakhic rulings and that which they allow or forbid, are distinctly matters of halakha and religion, which the court does not have the capacity to decide on. The authoritative element for deciding halakhic matters, including for instance, the question of whether a particular act constitutes a desecration of a Jewish holy site (as is the matter at hand) is the Chief Rabbinate of Israel. Deciding these matters pending before the Court is not judicial at all, but rather halakhic and/or purely subjective – principled.”
  2. “Maintaining prayer and ceremonies in ways that are not compatible with the custom and the Jewish law as has been transmitted, along the Kotel (namely: including the Robinson’s Arch area – UR) constitutes a desecration of the most holy place for Jews… These are religious-halakhic controversies, which have no place in the Court.”
  3. “The position of the Rabbinate is that the Government resolution on the division of the Kotel, known as the “Kotel Compromise”, has no validity, stands in complete opposition to halakha, and constitutes a desecration of a holy place.”
  4. “The Chief Rabbinate is ‘the highest halakhic authority in the State’ (quoting from the Supreme Court ruling re: the Israel Movement for Progressive Judaism 1982 petition regarding marriage), and ‘State religious authority of the whole Jewish population’ (quoting from the Supreme Court ruling in the 1989 petition of the Women of the Wall).”
  5. “Determinations by an authority, which is not the Chief Rabbinate, in any matter regarding the conduct of the holy places goes beyond its legal powers and constitutes a prohibited trespass into the areas of the authority of the Chief Rabbinate.”
  6. “The core position of the Chief Rabbinic Council is against the groups that are called ‘liberal’ and ‘progressive’ who have raised the flag of uprooting the Torah from its essence and uniqueness, and the results of their acts speak for themselves. Whoever monitors the assimilation prevalent among world Jews who are connected with these groups, as well as mixed marriages and uprooting of everything holy, will patently see that they have no connection to authentic Judaism…”
  7. “The Government decision (namely: the Kotel Compromise – UR) is void for a number of reasons. The decision, which allows for conducting prayers in the Southern part of the Kotel in a way that is contrary to halakha (for instance, holding mixed prayer services of men and women without a partition), constitutes a desecration of a holy place, and thereby violates the Basic Law: Jerusalem the Capital of Israel, and the Law Regarding the Protection of the Holy Places. So does the part of the resolution, which forfeits the administrative authorities granted to the Chief Rabbis with regard to a section of the Kotel area (the section of the Southern plaza) and transfers them to an authority that is not the recognized / authorized Israeli religious authority – constituting a desecration of the holy place. This forfeiture, in and of itself, is a desecration of a holy place in contradiction to the Basic Law: Jerusalem and the Law of the Holy Places.”

The above quotes are both a grievous misperception of the Chief Rabbinate’s authorities, reflecting a disregard for the law and the State authorities and perception of itself as standing above the law and the government. This document misrepresents past Supreme Court rulings, and forces Israel to move further and further (if the Chief Rabbinate’s position prevails) onto a collision course with world Jewry.

To begin with, the Chief Rabbinate has never had any authority over the Southern part of the Western Wall, beyond the Mughrabi Bridge known as the Robinson’s Arch area. It functioned as an archaeological garden under the antiquities authority, and was not used for regular worship until parts of it were designated for egalitarian worship and later recommended as a solution for the challenge posed by the Women of the Wall. The Chief Rabbinate never really claimed any authority or interest in this area, and its recent outburst has little to do with the sanctity of the Wall, but rather their desire to exclude both non-Orthodox and women’s minyanim. Therefore, the maps that define the boundaries of the Wall, attached to the official rules of conduct, only ever covered the traditional area known as the Wall.

As to the latter – if the Chief Rabbinate comes to be accepted as the highest religious authority for all Jews in Israel, and is guided by the view that ‘liberal’ and ‘progressive’ Jewish groups around the world are heretical, disconnected from Judaism, and their practices constitute desecration of holy places… then obviously, the result would be that the State of Israel will maintain that the overwhelming majority of world Jewry, which absent of religious coercion freely chooses to associate with non-Orthodox Jewish religious streams, are illegitimate, should be barred from Israel’s Jewish religious sites, and should be viewed with disdain and rejected. This conclusion, if the Rabbinate is not stopped, is an imminent threat to the future of Israel-Diaspora relations, in which the Kotel is merely a token reflection.

However, what should be emphasized by Diaspora Jewish leadership to Israel’s political leadership is that not only is the Rabbinate’s misrepresentation of world Jewry and contemporary Judaism offensive and anachronistic, but it is an expression of undue self-aggrandizement, which has no basis, even in Israeli law.

The Rabbinate’s quotes regarding its being the ‘highest halakhic authority in the State’ and ‘religious state authority of all Jews’ are taken out of context, representing only the view of a single (Orthodox) Justice on the panels that heard the cases, and are an ‘obiter dictum’. As a matter of fact, the law governing the operations of the Chief Rabbis and the Chief Rabbinical Council is very specific, and it does not crown any of them ‘the highest halakhic authority in the State’. Rather, in halakhic matters, the law describes their role as ‘providing responsa and opinions in halakhic matters for those who seek their advice.’

Similarly, their implied assault on the Supreme Court and the Government shows a misunderstanding of the Rabbinate’s true role and its relationship with the judicial, the executive, and the legislative branches of government. The Chief Rabbinate, as such, has no existence and no authority outside the scope of the law, which created the institution and defines its authorities. Clearly, in every other democracy, individual rabbis and rabbinic leaders gain trust and following by virtue of voluntary choice and association. That is how the role of the rabbi ought to be in a democratic society. The anomaly of an official state Rabbinate is not only a departure from Jewish tradition, but it is therefore confined and limited to the authorities and powers granted it by the state.

The laws cited by the Rabbinate regarding ‘desecration’ are actually intended to ensure access for all members of all religions to their sacred sites, as well as to ensure that they be respected. The pretentious view of the Rabbinate that they can define what constitutes ‘desecration of a holy place’ clashes with Israel’s own foundational promise of freedom of religion and conscience for all. Moreover, in the Supreme Court ruling on the 1989 petition regarding the Kotel, it was only the Orthodox Justice Elon who held that the ‘custom of the place’ should be interpreted as the manner of worship customary in Orthodox synagogues. The majority of Justices held that there is no necessity to interpret the ‘custom of the place’ according to Orthodox halakha.

The Rabbinate claims that no state authority has the right to regulate the administration of holy Jewish places, and that such a decision, whether made by the government or by the Minister of religious services, are outside their authority and constitute trespassing. The law they misquote and misinterpret regarding the protection of the holy places says in Article 4: “The Minister of Religious Services is in charge of the implementation of this law, and he MAY, after consulting representatives of the religions involved or according to their proposal, and with the consent of the Minister of Justice, establish regulations as to the execution of the law.” Thus, the authority is vested in the hands of the civil Minister of Religious Services and requires the consent of the Minister of Justice. The representatives of the different religions, including the Chief Rabbis, according to the law, should be consulted, but in no way is the Minister limited by them. That is the proper of authority in a normal state that upholds the rule of law, but as far as the Rabbinate is concerned, it is neither of significance, nor is it binding.

It was reported that the leaders of the ultra-Orthodox Knesset factions – Rabbis Deri, Litzman and Gafni held a phone consultation with the Chief Rabbis of Israel who “instructed them that they may not agree to the compromise proposed by PM Netanyahu to suspend the implementation of the Kotel compromise, and that they must demand the revocation of the compromise in a formal governmental resolution.” Clearly, not only do the Chief Rabbis understand their limited authorities, but they feel that it is appropriate for them to instruct political functionaries on how to act. While Hiddush does not advocate the American model of separation of religion and state, clearly the Chief Rabbis giving instructions to Ministers and Knesset Members is an unacceptable blurring of the essential boundaries of politics and religion.

A lot more could be said, quoted, and analyzed, but even these limited snippets demonstrate that regardless of one’s view of what constitutes legitimate prayer worship for Jews, the growing demands and pressures of the Chief Rabbinate pose a real threat, which requires strong counter measures, both within and outside of Israel.

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.

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.

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.