February 22, 2024
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February 22, 2024
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A Common Sense Solution to the Agunah Crisis

There are many reasons to believe in the divine nature of the Torah. But in the face of recent headlines, one undeniable truth stands out. The Torah, written thousands of years ago, pioneered gender equality. During an era when women were being dragged around by their hair, the Torah granted them land rights. While Christian apostles and Muslim prophets are all men, and the Koran and New Testament are largely bereft of strong female characters, the Torah has four foremothers supporting only three forefathers. Yes, Christianity brought us the Virgin Mary, but she is famous for doing little more than giving birth—a reproductive role that is hardly distinctive for Jesus’ birth mother. In contrast, the Jewish holy books celebrate Ruth, Esther, Devorah, Miriam, and other powerful women who served as leaders, role models, and prophets—all traditionally considered male roles.

American women earned the right to vote in the 1920s. Women in some Muslim countries are still prohibited from driving cars, owning property, voting, or talking out of turn. And yet, thousands of years ago, the Torah tells us that an under-aged Rebecca could not enter into a marriage contract with Isaac without giving her consent—a concept unheard of until modern times.

To be fair, there are various Torah laws that seem to establish the dominance of a husband or father, but a careful review of those laws reveal that they are more utilitarian than sexist. Women did not generate income during 99% of human history—a sign of the arcane times, not the Torah. A careful scrutiny of the Bible reveals no bias against women and no discriminatory coda intended to disparage or oppress the fairer sex. In the rear-view mirror of human history, it is indeed a remarkable achievement that could not have sprung from the minds of men.

It is within that context that I humbly advance a proposal to end the Agunah Crisis—a predicament caused when recalcitrant husbands refuse to grant their estranged wives a religious divorce (a “Get”), leaving them unable to date, re-marry, have children, or fully engage in religious society. The Rabbinate has found a biblical source for this decidedly medieval policy in Deuteronomy 24-1: >>If a man shall take a woman as his wife, and if it shall happen that she no longer funds favor in his eyes, because he found in her a matter of immorality, and he shall write her a writ of divorce, put it in her hand, and send her from his house.<<

The Torah does not speak of a typical divorce situation—there’s nothing about irreconcilable differences or the husband engaging in matters of immorality. The Torah is silent about the situation where finances or children are the source of tension. The relatively modern concept of love has little Biblical import in matters of marriage or divorce. Instead, the scripture addresses an extraordinarily narrow situation—where a man has found in his wife a matter of immorality—a concept that has since been widely expanded and enhanced by generations of human male rabbis.

So, here is my solution: Change the rules. Require the husband’s consent only where he can evidence immoral acts by his wife. Under all other situations, permit a panel of rabbis to invalidate the marriage and issue a Get. Or, allow the wife to sign her own Get in the absence of evidence of immoral acts. Make a determination that the act of refusing a Get is—in and of itself—an act of corrupt morality which terminates the unilateral right to issue a Get.

You don’t like these ideas? Fair enough. I am not a rabbi. I am not an expert in the corpus of Judaic law. Anyway, no one would listen to me. But, those with a figurative or literal pulpit can and should change the rules.

Before you dismiss my approach, consider this: there is some precedent. The Torah says we cannot have chometz in our homes on Passover. The rabbis found a loophole around that absolute biblical law. The Torah does not mention carrying on Shabbat, but first the rabbis prohibited it, and then found a way to permit it. They also cancelled the absolute biblical laws of Shofar and Luvav when the holidays fall on Shabbat for fear of carrying.God, presumably aware of the challenges posed by the lunar calendar, still decreed one day of Yom Tov. The rabbis expanded it to two (in Galut). Indeed, we have 613 Torah commandments and, it seems by my count, 613 million rabbinical commandments—notwithstanding the absolutely unambiguous Torah law that prohibits any expansion of or addition to the Torah laws.

I am not challenging the validity of Torah Sh’Baal Peh (Oral Law), rabbinical law, or rabbinical interpretation of Torah law—quite the opposite. I acknowledge and respect such power. I am merely proposing that it be used to mitigate an unconscionable practice that could never, ever, have been the intention of the God I believe in.

The Torah went to great lengths to highlight the mistakes, poor judgment, and, yes, even the sins of Moses. And Aaron. And Miriam. Kings Saul, David, and Solomon. The Torah makes no effort to white wash the white lies of our forefathers. The Torah tells us that Abraham, Sarah, Rebecca, Isaac, Jacob, Leah, and Rachel deliberately deceived others. I do not question their honorable and necessary motivation. I question why God felt compelled to devote so much space to seemingly disparaging our heroes.

Consider that the Christians literally turned their prophet into a god. And, to suggest any shortfall on the part of Mohammad is a sin worthy of death. So why did God paint such human portraits of the biblical personalities upon which all Jewish law is based? The reason is so simple that I cannot imagine how it has escaped our collective consciousness. God wants us to know that people—even our greatest leaders—are human. They sin. They make mistakes. They deceive. If it is true of Moses, it is true of every Tannah and Amorah. It is true of every rabbi. After all, virtually every single halakha is the subject of diametrically opposed interpretations. Hillel says blue. Shammi says red. One of them must be wrong. But, we are told, and I think it is absolutely true, it is not the final ruling that matters to God. It is the debate. The scholarship. In fact, we are required to follow the word of the collective rabbinate over a heavenly voice of God (At least that’s what the collective rabbinate says). The Torah is not in heaven (“Lo Ba Shamayim He”).

God deliberately left certain vagaries in the Torah precisely because he knew that it would encourage generations of debate and, therefore, the Torah would not be ignored. Does God really care if we wait six hours after meat? Three hours? One hour? Anyone who suggests He does has missed the point. And, there are instances where God does seem to care, like, for example, removing all chometz from our homes on Passover, or celebrating one day of Yom Tov; we seemed to have found our own way to interpret those laws in a way that, on its face, seems inconsistent with God’s wishes.

My proposal is not heresy or a rejection of millennia of Orthodox rabbinical law. To the contrary, it is a solid endorsement of Rabbi Rule. And I am not the first to suggest a common sense approach. Great rabbis have proposed solutions that rely upon loopholes that seem no less logical than other derivations of Torah law. One exegetical example: a woman would not marry a man if she knew that he were so evil as to not give a get—therefore the marriage was a nullity as an improper transaction. This approach has been rejected by the majority, but the feeling is that it was rejected because it sought to change a centuries-old interpretation that is hallowed more by time than anything else.

It boils down to this. We have a serious problem. It is hurting innocent people. It is sexist and unfair. It is one of the few things upon which all sides of the religious spectrum can agree. So, I say change the rules. Find a loophole. Fix the interpretation. The Torah does not prohibit women from wearing tefillin. That’s just how some of our modern rabbis interpret the law. For many, it has risen to the level of an excommunicable offense. I take no position (other than to follow my rabbis and teachers) because, unlike some, I do not have the confidence to suggest what God may or may not want. And, even if I felt strongly one way or the other, my human condition renders my position far too capable of misinterpretation, mistake, sin, and deception.

If Moses and Shammai might be wrong, who am I to insist that my position is the voice of God? But, for those who are undeterred by their human nature, who speak with great ease on God’s behalf, I issue a call to arms. Use that power for Good. Use it to free those who are chained not only by their despicable husbands, but by a gender-centric body of rules that, in this case, maligns God’s holy mission.

Ari Weisbrot is a prominent litigator in New York and New Jersey, and moonlights as an occasional writer. You can find his popular blog at ariweisbrot.com Ari grew up in Teaneck and lives in New Milford.

By Ari Weisbrot

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