Members’ Posts

Special Tribute In Memory of Rabbi Aaron Panken z”l

Rabbi Gordon Tucker sent this tribute to members of his congregation on Sunday, May 6, 2018.
We share it today on behalf of Ruach Hiddush.

Ruach Hiddush Executive Committee
Rabbi Pam Frydman (Chair), Rabbi Mark Levin (Newsletter Editor), Rabbi Michael Chernick, Rabbi Elyse Wechterman, Rabbi Gordon Tucker, Rabbi Uri Regev (Hiddush President and CEO)

I write with the deepest of sadness at the tragic death of Rabbi Aaron Panken, of blessed memory. Rabbi Panken has been the President of Hebrew Union College – Jewish Institute of Religion for the last 5 years. More than that, he was a model rabbi, scholar, and community leader. Rabbi Panken was a personal friend and professional colleague to me, as he was to several members of this community, both lay and professional. And he was a powerful spokesperson for Jewish pluralism and tolerance throughout the world – a true “Ohev Yisrael.” The many students who were trained on his watch, and by him directly, will never forget the gifts that they received from him.

As I consider the horror of the accident that took him from us, I am reminded of a profound teaching that comes from the Talmudic rabbis. They said that when a righteous teacher is lost, he is lost to his entire generation. And that is true. Rabbi Panken’s death is a blow not just to the Reform Movement, which he helped to lead, but to the entire Jewish world of our time. But our ancient sages went further. They said that what they meant was not only that the pain of the loss is felt by the entire generation, but that, in a real sense, it is only felt by that generation. “When a jewel is lost by its owner,” they said, it has not disappeared, and “wherever it is, it is still a jewel.” Future generations, unlike ours, will not feel the sting of this loss, just as we do not feel the sting of the loss of those teachers who died in generations previous to ours; instead, they will only have the benefit of the teachings and the legacies of this gem, who will surely remain a gem for all time.

Rabbi Gordon Tucker is Senior Rabbi of Temple Israel Center, a Conservative Egalitarian Synagogue in White Plains, New York.

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.

The Shabbat bill controversy: A focused perspective on the religious debate and the conduct of religious politicians

Rabbi Uri Regev, Hiddush President and CEO; Executive Committee, Ruach Hiddush

In Hiddush’s last newsletter, we highlighted a number of aspects involving the current controversy over the Shabbat bill. What we would now like to share with you, our colleagues, is a more focused perspective on the religious debate and the conduct of religious politicians in this controversy. This will give you deeper insight as to how this controversy factors in the ongoing debate over religion and state. This account is not advocating that all stores be open on Shabbat. On the contrary, what Hiddush has been advocating for is a serious and responsible re-assessment of the social, economic, and legal aspects of Shabbat in the Jewish and democratic State. Only in this way can Israel establish a balance between these often conflicting values.

The Israeli public discourse and news bulletins were dominated by the updates and reports on the status of the Shabbat bill. Below, we are highlighting the views of the religious participants in the debate. This debate helps us understand the positions of the religious players in Israel’s religion-state debate.

It’s important to appreciate how heated the debates over this Shabbat bill were. There was a record setting filibuster effort on the part of the opposition, with extremely contentious and sensitive crisis points that brought out some of the most contentious issues – and some of the most objectionable initiatives – due to the pressure to deliver the adoption of the bill.

Minister Rabbi Deri (Leader of Shas) quoted Rabbi Ovadiah Yosef who supposedly ruled that one should rise from mourning one’s loved ones to vote. He even turned to MK Glick’s (Likud) rabbi in Otniel, asking if MK Glick could come in to vote on the bill, despite the death of his wife. On the one hand Deri tried to justify it, on the other hand he apologized for it. This bill created a mess of multiple dimensions, raising a number of questions, involving religion-state, halakha, nature of Shabbat – the incident with MK Glick was only one example.

MK Rabbi Israel Eichler (United Torah Judaism), speaking at the Committee of Internal Affairs in a key meeting held on Dec. 28, 2017, said the following: “Anyone who says that it is possible to observe Shabbat in multiple ways is like someone who says that you can maintain your diet and continue eating starches – don’t lie to yourselves.”

He then drew special attention to American Jewry: “we need to remember that most of American Jewry is assimilating, and at the end there won’t be even a remnant left because they have not observed Shabbat. There was no way to make a living there without working on Shabbat. This is how millions of Jews were annihilated. President Herzog called it the silent holocaust of the USA. This is an annihilation of Judaism. The only ones that will keep American Jewry are those who observe Shabbat and their offspring. All the rest will disappear without a trace…. the sages say that Jerusalem was not destroyed, other than for the fact that they desecrated Shabbat. You presume to speak on behalf of the prophets (turning to the MKs from the left). The prophets warn that if Shabbat is not observed there will be no Jewish people.”

Just as Eichler sees no future survival of the Jewish people without observing Shabbat, so does MK Rabbi Moshe Gafni (United Torah Judaism) maintain that without Shabbat there is no existence for the state of Israel. Gafni said: “If, God forbid, there isn’t Shabbat here, there will be no state.”

 

Where are traditional Israeli Jews on this controversy?

The controversy over the bill covers a number of issues that come into play in both public and political debates. For instance, there is a highly popular media personality (Sivan Rahav-Meir), a formally secular journalist who married a Haredi media figure, became religious, and now actively pursues religious outreach. She wrote an article in a Haredi news portal, stating: “The battle over Shabbat is not theirs (Orthodox Jews). It is the battle of a very large population that is being very silenced – the traditional public. They are the ones who are being trampled and are forced into undergoing reeducation.”

Many politicians pushing the bill have similarly claimed that they are supporting it for the sake of Israel’s traditional Jews, but Hiddush’s ongoing polling reveals that as catchy as these claims are, they are not borne out by the facts. This is simply demagoguery – “don’t confused me with the facts, my mind is made up,” which is repeatedly exemplified by politicians and ideologues who really don’t care about the facts – but are quick to invoke claims that support their preconceived positions.

In Dec. 2017 Hiddush conducted a poll, asking: “There is an intense struggle in the political and public arena over Shabbat. The ultra-Orthodox political parties are initiating initiatives to prevent commercial activity, maintenance, and transportation on Shabbat, and they demand the authority to stop even the limited activity that exists today (such as the Convenience Store Law that passed this week in the Knesset on its first reading). What is your position on this struggle?”

72% of Jewish Israelis supported allowing diverse activities on Shabbat, and 28% supported the ultra-Orthodox position. A closer look at the break-down of public positions, by religious self-identification, shows that the clear majority of those who define themselves as traditional support the position held by secular Jewish Israelis. 86% of Jews who identify as “traditional, not so close to religion” (the larger group) supported this position. Even 69% of Jews who identify as “traditional, close to religion” agreed with the secular Jewish population.

The results of an earlier May 2017 poll (following the Supreme Court upholding the Tel Aviv municipal ordinance that allowed a number of markets to be open) were similar. Among the general public, 73% were opposed to bypassing the Supreme Court via counter-legislation, pushed by Minister Deri and his colleagues. This included 91% of “traditional, not so close to religion” and 60% of “traditional, close to religion” Israelis.

As for allowing essential maintenance work on Israel’s railways on Shabbat (Nov. 2017), 71% of the general public supported this. This includes 87% of the “traditional, not so close to religion” and 65% of the “traditional, close to religion” Israelis. Lastly, when it comes to permitting public transportation on Shabbat in Israel (Dec. 2017), 69% of the general public supported this. This includes 85% of the “traditional, not so close to religion” and 56% of the “traditional, close to religion” Israelis.

 

How should Israel deal with Shabbat?

Another popular Orthodox journalist, Sarah Beck, took it further in an article she wrote about the debate, claiming that “the will to trample to the Jewish character of Shabbat in the public domain emanates from one essential and deep root. Zionism from its inception is divided into two streams – those who see in it the desire of the Jewish people to be “a nation like all nations” (as Herzl stated), or in other words: to continue in the Land of Israel the process of assimilation that due to antisemitism failed in Europe. And those who wanted to see in it the realization of Judaism by creating a model society that would be ‘a light unto the nations’ (as envisaged by Ehad Ha’am and Bialik)”

So, resolves Beck, “The real discussion is whether we share a desire to have a Jewish state. The vocal proponents for opening the stores,” says Beck, “want Israel to let them quietly assimilate, or, as they call it in it in their updated politically correct style, ‘a state of all its citizens.’” Beck maintains that the “purpose of our existence here and of the unique historical story of our people is creating a more humane and a more just society, which draws from our (Jewish) sources.”

I could not agree more with Beck’s noble aspiration to see Israel as anchored in a commitment to a model society, committed to justice and humanity. The truth, though, is that her characterization of the current debate as continuing the dichotomy between the assimilationists and the “light unto the nations” proponents is false and self-serving. We cannot do justice here to an analysis of the current ideological trends within Israel and Zionist society, but suffice it to say that I cannot recall in recent years any of the religious parties, especially not the Haredi parties, speaking about model society or just society, and acting to advance these notions in their political capacities.

Nor is Beck doing justice to a large segment of Israeli secular Jewish society who vehemently oppose religious coercion but are fully committed to Jewish culture, national values, and maintaining the Jewish character of the state of Israel in a variety of ways that are anything but buying into the notion that Israel should be like the USA or France.

 

Blaming the Supreme Court

Minister Ze’ev Elkin (Likud) hangs the need for the bill on the harsh criticism he and other politicians, mostly in the Haredi and the right-wing political parties, aim against Israel’s Supreme Court. He said: “the bill attempts to minimize the harm caused by the Supreme Court ruling (on the Tel Aviv ordinance)… the Supreme Court interferes in matters of religion-state in a very brutal manner, and it does not enable the Knesset and the Government to make decisions in such delicate matters.”

MK Gafni (United Torah Judaism) said: “all the problems in the area of religion-state start with Supreme Court rulings. The Supreme Court has always ruled against Judaism, from the founding of the state. There wasn’t one ruling in favor of Judaism. Soon we will lose the Jewish character of the state, and even its democratic character.” (This is a favorite line with MK Gafni – see his comment about the Supreme Court in relation to its ruling on Israel’s Mikva’ot)

MK Eichler (United Torah Judaism) said: “… comes the Supreme Court, which is a dictatorial gang rule, which has illegally gained control of the state, and they invalidate the authority of the Minister of the Interior to close stores in Tel Aviv… We are in a state of occupation rule of the anti-religious dictatorship of the Supreme Court…”

 

Passing the bill by threatening

Deri, Litzman, Gafni made it clear throughout the recent controversy – that if the bill did not pass the government would fall. They also alluded to further demands that if not met would bring down the government, such as the draft bill (the demand that exempting yeshiva students from IDF service be enshrined in law in spite of the contrary supreme court ruling).

For instance, Gafni said: “If the markets bill does not pass, we will cause a crisis whereby we will not support bills of the other coalition parties. The government will continue to survive, but without legislation. If there is no markets bill, there won’t be any other laws.” He also indicated that he is waiting for the right opportunity to bring forth another amendment to apply retroactively and include T.A.

 

Making non-religious, moralistic arguments

While it is clear that enforcing Shabbat observance is the primary motivation of the religious political proponents of the bill, sometimes other arguments were thrown into the mix to make their demand more palatable – and seemingly more social-oriented. One such attempt was Sivan Rahav’s reference to the traditional public, which was trampled on (according to her).

Another example is of Rabbi Gafni, who said: “there is also the social-democratic issue – of hurting people who work that have stores in Tel Aviv, and would not be able to compete commercially because they observe Shabbat.”
While invoking social-democratic considerations, there is very little in the record of the haredi parties to indicate that they are actively pursuing the advancement of these principles. A compelling example of the hypocrisy in raising this claim could be seen this week:

In reacting to the despicable account of the Prime Minister’s son’s conduct (as revealed in a secret taping of a night on the town, in which he a couple of his friends were chaperoned from one strip club / whore house to another in T.A. by his security detail in a governmental security car, on Friday night a couple of years ago), Rabbi Gafni’s reaction to this scandalous conduct was “it’s not right – and I hope it stops. This reality in which you drive a governmental car on Shabbat is not right.. It has to stop.

Ruach Hiddush is Born!!!

Rabbis for Religious Freedom and Equality in Israel has changed its name to Ruach Hiddush which stands for:

רבנים וחזנים למען חופש דת ושוויון

Ruach Hiddush was founded as a rabbinic organization in 2015. Beginning this week, we are also accepting cantors. Ruach Hiddush is a project of HIDDUSH, a nonprofit based in Israel and the U.S. Our membership roster is available at http://rrfei.org/about/members/.

Our mission statement is below and is also available on our website at http://rrfei.org/. For those who wish to join, our membership registration form is at http://rrfei.org/about/registration/.

Membership is free of charge and includes a weekly subscription. Every other week, we receive a Ruach Hiddush newsletter or other email. On alternate weeks, we receive the Hiddush newsletter.

Ruach Hiddush — Rabbis and Cantors for Religious Freedom and Equality in Israel — is a network of Rabbis and Cantors working to fully realize the promise of Israel’s Declaration of Independence, which guarantees religious freedom and equality. The fulfillment of this promise is vital for strengthening Israel as a Jewish and democratic state, and for maintaining the solidarity of world Jewry.

רוּ”חַ חִּדוּ”שׁ — רבנים וחזנים למען חופש דת ושוויון — היא ארגון של רבנים וחזנים הפועל למימוש מלא של הבטחת מגילת העצמאות לחופש דת ושוויון. מימוש הבטחה זו חיוני לחיזוק זהותה של מדינת ישראל כמדינה יהודית ודמוקרטית ולהמשך השותפות עם העם היהודי לתפוצותיו

“Religionization” in Israel secular public schools

The challenge of Jewish education and forging Jewish identity is dear and near to all of us. The challenge associated with these subjects in the modern era in an environment of an open society, which embraces Jews on the one hand – and in the State of Israel where only a minority defines itself as religious on the other hand – is self-evident. Both the Jewish community in the diaspora and in the State of Israel are seeking solutions and new avenues to address this exacerbating challenge. With that as the background, we felt the need to share with you the debate taking place in Israel – both in the formal educational arena, as well as in other arenas such as the Jewish identity educational programs taking place in the IDF.

The most recent symptomatic example of this debate, which reflects much of the drama and the emotions that play a role in it, can be seen in an interview given this week to Channel 10 (Israeli TV) by Naftali Bennett, Minister of Education and leader of the Jewish Home party. We highly recommend that you listen to the interview (Hebrew, starting at 10:30). Under Bennett’s leadership and inspiration, millions of Israeli government shekels are invested in funding activities of Orthodox religious NGOs that provide classes and programs in Jewish identity in secular public schools. These programs are often skewed and aimed at brainwashing, and the funding mechanism used by the government is fraught with questions and possibly with legal issues.

This phenomenon stimulates strong reactions from all directions. On the one hand, Bennett and his people flatly deny any intention of religious brainwashing. They minimize the severity of their initiatives (“what happened, so they’ll learn a bit of Judaism”). They accuse their critics of being driven by a will “to destroy Judaism” (this of course reminds us of ultra-Orthodox political leaders like MK Gafni who accuse the Supreme Court of being driven by a desire to destroy Judaism in the State of Israel via its rulings on matters of religious freedom & equality. Even more seriously – the efforts of Gafni, Bennett, and their allies to undermine the Supreme Court and limit and erode its authority). Bennett emphasizes the importance he attaches for every Jewish student to receive a rich and good Jewish education – “who Moshe Rabbeinu is, what Selichot are”.

Even though he also serves as Minister of Diaspora affairs, it is clear that he has no real interest in highlighting or similarly funding exposure for students (secular or religious) to outlooks and practices common in the Jewish pluralistic world. There is talk today in the Ministry of Education about a new, more pluralistic curriculum, which was initiated by Bennett’s predecessor, Rabbi Shai Piron, but it remains to be seen to what extent it will be funded, compared to the large amounts provided to Orthodox religious NGOs, as well as to the scope of Jewish pluralism that it will present. It is also important to mention in this context that Bennett and his people are not only concerned about the souls of Israeli Jewish children. They are also convinced that Diaspora Judaism is incapable of providing for the Jewish education of their children, and they know better what Diaspora Judaism is in need of. It is therefore that Bennett facilitated allocating tens of millions of dollars annually to strengthen the Jewish identity and solidarity with Israel of Diaspora Jewry’s next generation. What he considers the necessary and “true” Judaism can be seen from the fact that two-thirds of the funding will go to Chabad and Aish HaTorah-related organizations (and one-third for Hillel). On the other side, there is a growing push-back by activists and organizations such as the “Secular Forum” that is mentioned in the interview with Bennett. They are speaking up and demanding that secular Jewish education be guarded against processes of “religionization” in the curriculum, allowing outside elements with a religious agenda to enter into secular schools, and in the text books (see for instance: Haaretz)

Hiddush has recently surveyed the attitude of the adult Jewish population in Israel regarding the question of “religionization”. The survey demonstrates in a compelling way that the public does not “buy” Bennett’s strong denial (anyone who views the TV interview will sense the hysteria that characterizes Bennett’s reaction), and especially parents of children in secular public education affirm their view that such a process of “religionization” is in place and they oppose it.

At the same time, the most important finding is the wide majority support that these parents express, as well as parents of children in religious public education for pluralistic Jewish education, which will not stop at “who was Moshe Rabbebeinu, and what is Selichot,” as Bennett mentioned, but will enable the students to familiarize themselves the diversity of interpretations and approaches to Judaism from Haredi to secular, and will nurture in the students independent and critical thinking and an ability to choose their own Jewish paths.

Hiddush is looking into this matter and investigating claims regarding “religionization”. Hiddush has recently received a partial and evasive response from the Ministry of Education, and we will keep you informed as more information unfolds.

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.

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.

RRFEI Special Edition: Articles on Halakhic prenuptial agreements

Featuring:
Rabbi Michael Chernick

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

 

Dear Friends,

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

This special series of RRFEI articles features an original work by Orthodox Rabbi Michael Chernick, Professor Emeritus of Rabbinic Literature at HUC-JIR, New York, with responses from Rabbis Mark Washofsky, Elliot Dorff and Daniel Siegel. Rabbi Washofsky’s affiliation is Reform; Rabbi Dorff’s is Conservative and Rabbi Siegel is with Jewish Renewal.

We hope you will respond and air your voice also on this essential issue of egalitarianism and halakhah. (I want to note that we invited two women scholars to respond, and neither had the time; but we hope for responses from our women colleagues and a robust discussion of these ideas.)

As we all know, being a “chained” woman (agunah) causes untold suffering, and justice demands we create a solution to this oppression. You will see in today’s article by Professor Michael Chernick an analysis of the problem, a review of the historical remedies and suggestions for moving forward.

In addition, we are bringing you responses from 3 current halakhic authorities:

Rabbi Mark Washofsky, Freehoff Professor of Jewish Law and Practice at HUC-JIR Cincinnati; Rabbi Elliot Dorff, Chairman of the Rabbinical Assembly’s Committee on Jewish Law and Standards; and Rabbi Daniel Siegel, Founding Director, Integral Halachah Institute.

Shall we stay within the halakhic system to resolve the issues, or turn to civil courts? What is the appropriate role for civil courts in the Diaspora, and what is their role in the Jewish State? Some believe there should not be civil courts in Israel, that all law must be according to halakhah. Some would have that law change in structure, for example: that women be able to not only receive a get but give one as well, that both parties in a divorce should receive a divorce decree (get) from their spouse.

Clearly not only has the role of the streams of Judaism not been resolved in Israel, but the questions of which legal system to follow: civil or Jewish, who decides on halakhah, and how innovative can halakhah be in the modern context demand resolution.

RRFEI and Hiddush prefer a separation between religion and state, and in the case of marriage law, the possibility of civil marriage and divorce for those who choose. Clearly, as you will read in these articles, reasonable and reasoned rabbis may disagree, but all insist that injustice demands a workable solution. The Jewish people needs to hear your voice as well.

We hope you enjoy this special series; and even more important, we hope you will join the discussion.

Kol tuv, as we count our way to Sinai,

Mark

Rabbi Mark H. Levin
RRFEI Editor

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.