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.
“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.’
Rabbi Michael Chernick
In 1776 , in Germany, a young man named, Isaac, son of Eliezer Neiburg of Mannheim, was engaged to marry Leah, daughter of Jacob Guenzhausen of Bonn. In the week leading up to the wedding, Isaac seemed pre-occupied exhibiting some strange behavior. The wedding, however, took place in the groom’s home town with much celebration, on the 8th of Elul 5526, August 14, 1766, and all seemed to bode well.
A week later, on Saturday night, after they had spent several days in Bonn, Isaac Neiburg told the community rabbi, that his life was in danger and that he must leave Bonn immediately, but in order not to leave his young wife an agunah, he wished to give her a divorce. He did admit that he had not found the bride to his liking, but noted that he was not divorcing her for this reason, rather because of the mortal danger threatening him. Rabbi Copenhagen’s attempts to dissuade him were to no avail, and therefore it was agreed by both sides that Isaac Neiburg would divorce his wife. Financial matters were agreed to, including payment of expenses by the husband, and Isaac consented to everything. Since there was not a recognized rabbinical court in Bonn, it was decided to turn to the rabbinical court in Cleves, a city on the border between Germany and Holland.
The rabbi of Cleves, Rabbi Israel Lipschuetz, met with both parties, and sanctioned the divorce and also a written monetary agreement, determining that Isaac was firmly resolved to give his wife a divorce, and that if it were not done on the spot his wife might be left an agunah.
Several weeks later it became known to the father of the groom that his son had divorced his wife and left the country. The father was incensed both because in his opinion his son had been forced to give a get, despite, in his words, “his delicate emotional state, and because the financial arrangements were to his disadvantage.” He turned to Rabbi Tevele Hess, who then turned to the rabbinical court of Frankfurt, a large and highly esteemed community, headed by Rabbi Abraham Abusch of Lissau, both of whom ruled that the get was indeed invalid.
What ensued was a 2 year heated and acrimonious debate that put two rabbinical bodies at odds with one another, with both Leah and Isaac, caught in the middle. Leah’s status kept changing, depending on the rabbinic ruling, from “divorced”
Rabbi Michael Chernick
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
Rabbi Michael Chernick
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,
Rabbi Michael Chernick
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
Rabbi Michael Chernick
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
Rabbi Michael Chernick
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
Rabbi Michael Chernick
As a new member of RRFEI, I am honoured by the opportunity to contribute to this learned discussion.
At first, I endorsed and used pre-nuptial agreements, seeing in them exactly what Rabbi Chernick sees. Over time, however, I became unsatisfied with this and the other options he lists. My concerns with seeing both pre-nuptials and civil marriage in Israel as solutions to the problem of divorce inequality and the agunah include:
For more than a century Jews have debated how to guide the Jewish character of a sovereign Jewish State. Until recently, few thought seriously in terms of national halakhic standards. The Founders envisioned a Jewish ethic, not ritual Jewish practice.
In Anita Shapira’s 2014 book, Ben-Gurion: Father of Modern Israel, she writes:
Just before the state was established, he [Ben-Gurion] reached agreement with the ultra-Orthodox Agudat Yisrael (Union of Israel) party on the celebrated “status quo,” assuring the state’s religious Jews (sic) that marital laws would be observed as they had been during the Mandate period and that the Sabbath and festivals would be part of the national calendar. Sensitive to tradition, he granted yeshiva students exemption from military service, but soon regretted it. In total contrast with his expectation that they would disappear completely, the number of yeshiva students steadily increased. But even though he sharply criticized the exemption, he did not cancel it. (p. 191)
In past issues we have dealt with allowing liberal conversions in Israel’s public mikvaot, seen 150 examples of rabbis over the last half millennium who issued piskei din stating that absolute adherence to halakhah was not required for conversion, and witnessed struggles with mehitzahs and kol ishah. Israel deals daily with the Jewish ethics of war and governing a minority population in the midst of conflict.
In this linked study: Secular Rights and Religious Wrongs? Family Law, Religion and Women in Israel, we witness the impact of a duel divorce system in Israel: one civil, one halakhic. The authors describe how when it works correctly, the halakhic system can be the most humane. Utilizing Israel’s Sanctions Law, and with cooperative courts, women can receive the compensation promised them in their ketubahs and have property settled quickly and equitably. In some cases even women from abroad have sent their cases to Israel to be adjudicated fairly. Many cases are recorded in which women prefer the halakhic courts to the civil court in order to expedite the proceedings and get on with their lives. These are rarely publicized in the North American Jewish world.
Yet, the idiosyncratic interplay of the ideologies of the judges and the desire for fairness comes overwhelmingly into play. Some judges simply prefer the rights of men over a woman’s rights. Organizations like
Minister Rabbi Litzman: “Netanyahu either loves the Reform Jews of the Diaspora, or the Haredim of Israel; it’s either-or. There are no two ways about it… The Supreme Court is destroying everything good related to religion & state, and… the only way to stand against it is by passing legislation.” [Hebrew link]
Last week, I emphasized that the battle over the Kotel agreement and Supreme Court ruling to allow non-Orthodox converts access to Israel’s public mikva’ot is not really over the Women of the Wall’s prayer services or the non-Orthodox movements and their converts. Rather, it is over contrasting visions for the State of Israel on matters of religion and state.
The recent Pew report, as I wrote at length, indicates that the population represented by Gafni, Litzman, Azoulay, Deri and their colleagues, strongly desires to turn Israel into a theocracy, or as close to one as possible. In such cases when religious edicts clash with the rule of law and democratic principles, they believe themselves to be obligated to follow their interpretations of halakha, rather than civil law. Their political clout allows them to “dance between the raindrops,” and bend the law to suit them, even if this flies in the face of democracy, religious freedom, equality, etc. They aim to fashion Israel into a state not unlike those run by sharia law. Minister Azoulay’s declaration that he would not sign the regulations passed by the Government in the Kotel agreement “because his rabbi told him not to sign” is only one more recent example of this intolerable situation.
PM Netanyahu finds himself a rock and a hard place, for he does not support the vision for a theocracy, and would like to make good on his promise to Diaspora Jewry that “all Jews should feel at home in Israel.” However, the threat to the integrity of his coalition government is rising due to forces that aim to unravel Israel’s democracy; forces for whom Israel-Diaspora relations and the rule of law are meaningless; forces whose only considerations are utilitarian. The clearest expression of this is that the battles against the non-Orthodox movements and against the supreme court are the same battle. This was made utterly clear in a radio interview with Minister Rabbi Litzman (quoted above) about the upcoming vote to reverse the Supreme Court’s ruling on the mikva’ot (