A Capitol problem

A Capitol problem

The agunah problem – Jewish women unable to remarry because their civilly-divorced ex-husbands refuse to grant them religious divorces – has made it to Capitol Hill. It has reached all the way into the office of Rep. Dave Camp, the Michigan Republican who this week took over as chairman of the powerful House Ways and Means Committee.

Keeping the faith: One religious perpsective on issues of the day It is there because an aide to Camp, Aharon Friedman, refuses to grant his wife a get – a religious divorce. The couple were civilly divorced last April. Friedman wants better custody terms for visiting with his 3-year-old daughter. He is using the issuance of a get to force his wife into making those concessions. Regardless of the merits of his case, withholding a get to exact concessions is an evil thing to do.

Sadly, too many ex-husbands withhold a get either out of spite or as a way of exacting concessions from their wives that are most often outrageous in the extreme.

Under Jewish law, with a very few extremely rare exceptions, women cannot sue for a divorce in a religious court (a bet din). That is a right granted only to men. In olden times, religious courts could coerce recalcitrant husbands into giving such divorces, usually by imprisoning them. Outside Israel, coercion (kefiyah in Hebrew) is no longer in a court’s armory of remedies.

That led a New York-based group, the Organization for the Resolution of Agunot (ORA), to take matters into its own hands. It staged a demonstration in front of Friedman’s Silver Spring, Md., apartment, which made it onto YouTube and into newspapers, including The New York Times. ORA is also considering a similar demonstration on Capitol Hill itself.

If ever there was a chilul haShem, a desacration of God’s Holy Name, this is it. The issue may have entered Camp’s offices and brought some unwanted publicity, but the spotlight is on Jewish law, and it is showing a negative picture for all to see and many to mock.

Do not blame ORA, however, or even Friedman and his recalcitrance. The fault for this chilul haShem rests squarely on the shoulders of the Orthodox rabbinate, which is the only rabbinate capable of taking a lead on resolving this disgrace but which has steadfastly refused to do so.

There are Orthodox rabbis who would resolve the agunah problem. They follow in the path of the late Emanuel Rackman, one of the most underrated rabbinic authorities of the late 20th century. The solutions they offer are consistent with halachic norms, but neither Rackman nor anyone else has been able to win the concurrence of a single major rabbinic body.

Consistent, of course, does not automatically mean accurate. It is very possible to come up with a halachic solution and be wrong.

When it comes to resolving the agunah problem, however, Jewish law itself demands creativity, if necessary, and finds consistency acceptable. So wrote the early 17th-century scholar Rabbi David Halevi in his halachic commentary the Turei Zahav (The Rows of Gold). Halevi ruled that unchaining an agunah was so important that rabbinic authorities could even rely on minority opinions that in other situations would not be acceptable. (See TaZ Even Ha-ezer 17,15.)

A scholar of the next generation, Rabbi Chaim ben Jacob Abulafia, ruled that a bet din could meet even on a Shabbat if it meant freeing an agunah, “for no greater emergency exists” except, perhaps, saving a life, to which this is comparable, he said. (See his commentary Sh’vut Ya’akov, volume 1, no. 14.)

Rackman took the bold step of annulling Jewish marriages in cases where the husband refuses to grant a get. In the mid-1990s, he established a bet din for that purpose, which functioned until 2006 (he died in 2008). Usually, the reason for the annulment was a finding that a defect existed when the marriage was originally contracted.

Rackman and his colleagues relied on the TaZ’s ruling that countenanced the use even of minority opinions to free agunot. Because these were minority opinions, however, and thus not considered authoritative, the approach was rejected by the Orthodox rabbinic mainstream.

Some of the responses to Rackman’s initiative were comical, as well as sad. The Agudath Israel of America, for example, in a mid-1998 press release, said its council of Torah sages decided to deny recalcitrant husbands the “right to be members in good standing in any Agudath Israel synagogue, to be called up to the Torah, to serve as prayer leaders, or to host any Kiddush or other celebration.”

That being said, if Rackman’s approach is not good enough for the rabbinate, there are other ways the decisors could intervene. For example, they could issue a g’zeirah (a negative decree) forbidding a man who no longer lives with his wife to deny her a get. They could issue a takkanah (a legislative improvement) that would allow a bet din to act in the husband’s stead if a civil divorce is in place (as in the Friedman case).

It would not be the first time rabbis stepped in to address injustices against wives. “What is the reason why the Rabbis provided a k’tuvah [marriage contract] for a woman?” the Talmud asks rhetorically in the Babylonian Tractate Y’vamot 89a. “In order that it may not be easy for the husband to divorce her.” To put it another way (BT K’tuvot 11a), so that “it should not be a light matter in his eyes to send her away.”

More than 1,000 years ago, Rabbeinu Gershom in Ashkenaz issued a takkanah banning polygamy. While this did not overturn a Torah law (the Torah gives passive approval to the practice, although it clearly favors monogamy), the takkanah did put several Torah laws out of existence.

Where there is a will, there is a halachic way.

The question women need to ask their rabbis is why that will does not seem to exist in this case.

Meanwhile, the chilul haShem in the Friedman case will be repeated in other cases.

In my shul on Shabbat, we recite a blessing specifically on behalf of the agunot. We pray for the rabbinate to gain “an understanding heart…, so that it may discern between good and evil, and that these women may be freed from their chains, in order that they may marry, as all other Jewish women may do.”

That is a prayer that needs to be said in every shul every week. Maybe that way the day will come when it never has to be said again.

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