Saturday, January 29, 2022

Ideas are important, especially when put into practice. Legal theories can change the world. Debates over legal theories can impact the community and well beyond, even before the ideas are implemented. I believe that in the latest debate over rabbinic action on behalf of agunos, a key point has been misunderstood.

Rav Hershel Schachter recently published a public letter (http://tinyurl.com/pffsweg) to rabbis, strongly advising them against relying on rulings of the International Beit Din for Agunot. Among his arguments was that a responsum by one of this beit din’s judges was “mistaken from beginning to end.”

I. Get Zikuy

Rav Schachter was referring to a paper presented by Rav Simcha Krauss on December 25, 2014, in a discussion with Rav Jeremy Wieder and Prof. Chaim Saiman (neither of whom agreed with Rav Krauss). Rav Krauss argued at length that a beit din can give a get to a woman on behalf of a recalcitrant husband even if he objects (called a get zikuy). Indeed, this is a radical claim that provides a solution to the plight of the agunah. Rav Wieder strongly critiqued this paper. Likewise, Rav Schachter argued that this approach is unprecedented and completely mistaken.

Rav Krauss stated, in a response (http://tinyurl.com/nhlozwa), that he presented two recent precedents to Rav Schachter, who was unaware and uninterested. In fact, Rav Schachter was correct neither case serves as a precedent for Rav Krauss’ proposal. The portrayal in Rav Krauss’ letter of Rav Schachter as uninterested and unaware, or at least that perception which was felt by many readers, is strange—given Rav Schachter’s encyclopedic knowledge and interests—and unfair, as we will soon see.

But first an important point. Rav Krauss’ responsum represents only his own view and not that of the beit din. Other judges on the court may feel differently and rule against this proposal. Nor has this proposal been acted upon yet. However, as the leading judge of the beit din and its driving force, Rav Krauss’ opinion on this radical proposal to solve the agunah problem is highly relevant.

Additionally, before we address the specific issue under concern, let us also note that Rav Krauss personally criticized harshly another proposal to solve the agunah problem. When Rav Emanuel Rackman initiated his Bet Din Tzedek L’Ba’Ayot in 1998, The Jewish Week quoted Rav Simcha Krauss as saying “This has nothing to do with right-wingers and left-wingers but with the integrity of gittin (religious divorces)… I will not make a joke of the halachic system and that is what is happening here.” These are weighty matters that bring out passion and concern, both by Rav Krauss and Rav Schachter.

II. Precedents

Rav Krauss cites two precedents for his get zikuy. This first is a recent ruling of a beit din in Tzefat about a vegetative or near-vegetative man on whose behalf the court gave a divorce to his wife. This ruling was roundly criticized, most recently by Rav J. David Bleich in an exhaustive 73-page article (http://traditiononline.org/component/content/article.html?id=175) in the journal Tradition (48:1, Spring 2015). Regardless, the ruling does not serve as an ample precedent because in that case, the husband was not objecting. He was unresponsive for medical reasons. Rav Krauss’ case, in which the husband openly protests the actions on his behalf, takes the matter much further.

The second precedent is a responsum by Rav Shalom Messas, written shortly before his passing in 2003 and published in Volume 4 of his Responsa Shemesh U-Magen. The issue was a hotly contested divorce case in Brooklyn, ugly on more levels than is usual for a divorce. A Brooklyn beit din permitted a woman to remarry without a get, causing a rabbinic controversy. The question was sent to Rav Ovadiah Yosef, who passed it on to Rav Messas. This is not the place to discuss the entire controversy, including the many rumors and accusations. The only relevant issues here are the facts and arguments in Rav Messas’ responsa, which I believe support Rav Schachter and not Rav Krauss.

III. Shemesh U-Magen

In Responsa Shemesh U-Magen (vol. 4, no. 100), Rav Messas explains the facts presented to him. In 2001, a young American Charedi woman married a man she thought was a normal Charedi man, with plans to be supported by her parents for four years while he learns in kollel. After a year and a half, she learned that her husband had been consistently stealing from her sister’s brother-in-law, to which he confessed in (secular) court. The wife also learned that her husband frequented prostitutes, and therefore she demanded a divorce. A beit din in Jerusalem ruled, without the husband’s presence at the proceedings, that he can be forced to give her a get. The husband then disappeared and his family demanded millions of dollars from the wife’s family and threatened violence if the husband was physically coerced to give a get. The Brooklyn beit din provided testimony from a Johannesburg beit din that the husband had frequented prostitutes even before the marriage, as well as results of an investigation indicating that he took drugs and violated the laws of Yom Tov and kosher.

Therefore, the woman requested annulment of her marriage since she never agreed to marry a man who frequents prostitutes. Such a man may not have marital relations because of concerns he may transmit AIDS (presumably HIV) to his wife. If she had known that she could not consummate her marriage without entering this life-threatening danger, she would never have married the man. This is quite a surprising argument on many counts, which is why it led to a rabbinic controversy. For our purposes, we will only discuss Rav Messas’ analysis.

Rav Messas objects to outright annulment. While it is true that Rav Moshe Feinstein annulled marriages in this way, Rav Messas considers this a minority opinion. However, he will annul a marriage if there is also another reason to be lenient. In this case, he notes that when there is danger to the woman, this constitutes an additional reason for leniency. Therefore, since there is no possibility of obtaining a get from the husband, he ruled that the marriage can be annulled.

Rav Messas then adds that, “as a mere stringency” (chumra be-alma), it would be best (“mah tov u-mah naim”) for the court to give a get as the agent on behalf of the husband. While he would permit the woman to remarry without a get, Rav Messas suggested that a get zikuy be given as a stringency.

Importantly, Rav Messas adds that all this requires the consent of Rav Ovadiah Yosef.

IV. Analysis

Not only doesn’t this ruling support Rav Krauss’ proposal, it bolsters Rav Schachter’s argument. Rav Krauss proposed giving a get on behalf of a husband who objects. In this case, the husband had disappeared and was not directly objecting. That is an important difference. Rav Krauss wants to take this a step further.

But more importantly, Rav Messas only offered this suggestion as a “mere stringency.” He had other arguments to permit annulment that, in his view, were entirely sufficient without this addition. There is no indication that Rav Messas would permit ending a marriage merely by giving a get on behalf of a husband.

And finally, Rav Schachter’s main objection was the initiation of radical solutions without the approval of leading rabbis. Rav Messas shared that concern and therefore conditioned his ruling on the consent of Rav Ovadiah Yosef. Like Rav Schachter, he insisted on the review and approval of a leading expert. Note that, at the time, Rav Messas was approaching the age of 90 and had served as a rabbi since the age of 36. Yet he recognized that difficult decisions on such matters require expertise and at least a modicum of consensus. That is Rav Schachter’s point.

V. Continuation

But the matter continues in the next responsum (no. 101). A week and a half later, Rav Messas published a responsum explicitly retracting his ruling based on new information. The husband’s father came to Rav Messas and proved with laboratory results that his son does not have HIV. He said that his son was “missing” because he was in jail over the theft and that the testimony from the Johannesburg beit din was taken from inadmissible witnesses. Based on this, Rav Messas retracted his entire ruling and demanded a new beit din case on the divorce.

Significantly, this second responsum contains an addendum from Rav Ovadiah Yosef rejecting the original ruling even without the new evidence. In other words, Rav Messas conditioned his original ruling on the consent of Rav Yosef, which was not forthcoming. This is in addition to Rav Messas’ retraction based on new evidence.

All this is hardly precedent for a new and radical solution to the agunah problem. The communal problem of the agunah can only be solved through consensus. Permitting a woman to remarry under questionable circumstances irresponsibly threatens her and her future children with tragic consequences, effectively turning a bad situation into an even worse situation. As we have seen above, there are sometimes solutions for difficult cases. Other times, the hands of the judges are tied. In those cases, the excellent work of the ORA organization, which Rav Schachter guides, can offer a different path to resolution.

By Rabbi Gil Student

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