more on recent reading
Dec. 11th, 2001 11:57 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
cellioI mentioned before that one approach used in rabbinic Judaism to avoid an unpleasant problem is to interpret around it. One example that Guttmann brings up is as follows (in highly-distilled form): a Catholic converted to Judaism and married a Jew; later they divorced (without a get), and she re-married and had children. Under Jewish law, those children are mamzerim ("bastards", though the term does not have the same connotation as in English), and they are restricted in who they can marry. Said children wanted to marry outside those restrictions, and the Orthodox rabbi who ultimately ruled on the case did so by invalidating the man's conversion -- thus the first marriage was not recognized under Jewish law, so it didn't need to be terminated with a get. End of problem.
This editing of history seems dangerous to me. And yes, the decision was controversial. Guttmann asserts that if the rabbi in question had said anything about doing this for humanitarian reasons, the ruling would have been widely rejected -- but because he could construct a halachic argument, no matter how weak, it was ok.
If they are going to use such reasoning, though, why don't they go and do something useful like solving the agunah problem? (An agunah is a woman who cannot remarry because her husband hasn't given her a divorce decree -- a get. If he's mentally incapacitated, or missing and presumed dead, she's screwed.) I read once of a method that a beit din had used to invalidate a marriage after the fact by -- get this -- confiscating the ring used in the wedding retroactively. (According to the rabbi I learned this from, a beit din can confiscate property under a principle called "hefker bet din hefker".) If the husband didn't own the ring, then he wasn't really giving it to the wife -- and the wedding depends, in part, on this transfer of property. (The rabbi cited the Gemara to Gittin 33a, which I have not chased down.)
So, I ask, why can't we solve the agunah problem the same way? Retroactively confiscate the ring, and thus invalidate the marriage? I've asked this question of a few fairly-learned Orthodox (one rabbi and a couple laymen), and the answered can be summed up as "this argument is flawed and we can't do that". So I guess it will remain a mystery for me for now, though Guttmann seems to document interpretations at least as major as what I'm suggesting.
Onward. Guttmann mentions another interpretation I found interesting. Halacha is concerned with who does or does not count in a minyan (quorum for public prayer). Jews who are publicly unobservant -- the typical case is those who publicly violate Shabbat -- are not counted under a strict ruling. However, a case was made that Jews who are otherwise sinners are, at least temporarily, not sinners if they are actually present for that prayer service; they can be presumed to have repented, and God is concerned with present state, not past state. We get all of this from the Hagar story in Genesis -- Avraham expels Hagar and Yishmael into the desert, Hagar leaves Yishmael because she can't bear to see him die of thirst, Yishmael cries out, and God shows Hagar a well. The Talmud asks: how could God save Yishmael when he's going to grow up to be wicked and father a wicked nation? he answer is that God is concerned with Yishmael's present state (as a dying child), not his future state.
The book documents many cases where the Orthodox first objected to a Reform innovation and then, later, quietly adopted it. These include the bat mitzvah for girls (tradition says only the bar mitzvah -- for boys -- is relevant), using the vernacular in services (particularly sermons), the acceptability of translating and publishing the Talmud (the issue was that it was supposed to be off-limits to gentiles), and the acceptability of secular learning. I presume that a halachic case was made for each of these, though sometimes that case seems to rely on custom and not law. Certainly we can't generalize and conclude that some of the currently-controversial Reform decisions would be accepted, though; for example, patrilinial descent (which post-dates this book) would probably never be accepted by Orthodox (or probably even Conservative).
It's an interesting read, even though my thoughts are still kind of disjointed.
Re: Orthodox halacha...
Date: 2001-12-13 06:13 pm (UTC)Which is a shame that reflects poorly on them and harms many innocent women. Sigh.
Your approach sounds (to this not-very-educated lay person) like it would work. I like the approach the Conservative movement takes, of inserting an automatic "get promissory" into the ketubah (I'm talking about the Leiberman clause), but of course that only helps people who married recently enough to use this innovation. Reform considers the get to be unnecessary, but (this came up in conversation this morning) my Reform rabbi said that he will help any of his congregation get an Orthodox get if that erson feels it's needed. He implied that this is a common position. We didn't discuss how he goes about doing this.
Unfortunately, this is changing... there are some groups who are keeping lists of mamzerim, and performing pre-marriage checking of these lists. That is, I think, a horrible thing to do.
The Guttmann book was published in, I think, 1977. (I returned it this morning, so can't check easily.) And he documents this practice as being not uncommon. So it's not new. I agree with you that it is a horrible thing to do. The mamzer is completely innocent in this matter, yet he is the one who is punished.
Re: Orthodox halacha...
Date: 2001-12-13 08:24 pm (UTC)This is actually something which I disagree with. I think the get is very important. After all, people are encouraged to have a religious marriage, they should be given a religious divorce ritual as well. It also places the other movements, which do believe in gets, in a bit of a bind. If Reform doesn't give gets, then how do you deal with Reform marriages? (Now, if Reform said that gets were necessary, but could be given by the woman, then we'd have an interesting situation... by the way, did you know that there is documentary evidence from the Cairo Geniza that in the middle ages women were giving gets?)
[M]y Reform rabbi said that he will help any of his congregation get an Orthodox get if that person feels it's needed. He implied that this is a common position. We didn't discuss how he goes about doing this.
Despite the fact that I think the Orthodox movement isn't doing enough about the problem of Agunot, there are Orthodox Rabbis who will give gets with very few questions asked. I have a very good friend, Who I will call "J." (not her real name), who is Orthodox. She married a guy who seemed nice; had an Orthodox wedding; the whole deal. They had a son a few years later. Then a daughter. J. was working to put her husband through medical school. Unfortunately, at this point the guy started to break down. He did irresponsible things with their money. He did many other things which I won't go into (let's just say it's pure luck that J. didn't get HIV from him). J. needed to divorce him, but his mother (who was also a nut) convinced him that he should blackmail J. for huge amounts of money for a get. (Mind you, it was J.'s money which had paid for this guy's medical school, their expenses, etc., and the guy who'd blown their savings.) One night, the guy came back to J.'s apartment and seemed willing to give a get. J. kept him there until the morning, when she contacted an Orthodox Rabbi who got the guy to give J. the get on the spot. Based on the guy's subsequent actions (totally spurious lawsuits to try to get custody of the children, constant verbal abuse of J., other stuff I won't get into), if J. hadn't gotten that get that morning, she would still be waiting for one - or perhaps wouldn't have custody of the children. The Orthodox Rabbi that she went to did a real mitzvah, and I'm sure that there are others who are known to the community. Hopefully you'll never need a get :-)
Re: Orthodox halacha...
Date: 2001-12-13 08:46 pm (UTC)Personally, I agree. And if (chas v'shalom) I were in the situation, I would seek a get from my husband or, failing that, a beit din. And I would not accept any solution that revolves around nullifying the marriage; it happened, and we have to deal with that. (I predict that the Orthodox response to that situation would be to invalidate one or both of the marriage or my conversion. Not acceptable.)
It also places the other movements, which do believe in gets, in a bit of a bind.
Well, it's only an issue if a Reform divorcee wants to remarry in the Conservative or Orthodox movement, in which case she'd need to go get a get. BTW, from what I've seen (and granted, it's a small sample), Reform rabbis are pretty up-front about these things; it's part of that autonomy thing. So I think, for example, that were I to get divorced, my rabbi would explain the implications to me, offer to help me get one, and leave it up to me. He wouldn't just say "don't worry about it", because that would be taking the decision away from me.
Wow, I really feel for J. Sadly, it's not the first time I've heard of such antics from the husband in a bad marriage. I'm glad there are Orthodox rabbis out there who will act as this one did.