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Do not be misled. Halachic divorce IS necessary.

Rabbi Shlomo Riskin, who is the chief rabbi of Efrat, Israel, chancellor of Ohr Torah Stone, and erstwhile rabbi of Manhattan’s Lincoln Square Synagogue, recently published an article called “When is Halachic Divorce Necessary?”

Rabbi Riskin discusses the halachic stance popularized by Rabbi Moshe Feinstein with apparent approval. Known to many as “Reb Moshe,” Rabbi Feinstein was the author of the collection of rabbinic responsa called “Igrot Moshe.” Rabbi Riskin summarizes: “a ‘get’ [religious divorce] is a necessity only for a halachic marriage: the very concept of marriage is unique to the halachic context and therefore the halachic obligation of a ‘get’ applies only within the unique rubric of a halachic marriage.”

Rabbi Riskin asserts that Reb Moshe’s “path-breaking” ruling “has been widely accepted, and that this has greatly minimized the problem of mamzerut.” Mamzerut is akin to – but not identical with – the Western concept of bastardy or illegitimacy. A mamzer is a child born of an incestuous or adulterous union, not one merely born out of wedlock. A civilly divorced woman who remarries without benefit of a Jewish religious divorce – the get – is (often unbeknownst to her, and without malice or emotional betrayal) engaged in an adulterous relationship, as she remains halachically married to her ex-husband. A child born of this subsequent, putative marriage (or even of a non-marital liaison) is a mamzer, traditionally debarred from marrying “legitimate” Jews. Rabbi Feinstein’s ruling, Rabbi Riskin asserts, “frees the overwhelming majority of those offspring from any stigma or taint.”

A worthy and commendable objective – if only that were the sole purpose and consequence of the Feinstein approach. It is not. It is, rather, a dangerous, deceptive, and insidiously divisive halachic stance. Rabbi Feinstein famously and stridently excludes from the category of halachic marriage those solemnized by non-Orthodox rabbis. In one responsum included in “Igrot Moshe,” for example (Even Ha-Ezer I:76), Reb Moshe rules that a woman married in a Reform synagogue needs no get in order to remarry, because her first union did not rise to the level of true marriage. Any doubt that his halachic conclusion is aimed squarely at delegitimizing non-Orthodox rabbis (and movements and institutions) is belied by Rabbi Feinstein’s rhetoric. Though writing in Hebrew, he simply transliterates the term “Reform Rabbi” into Hebrew characters… as if it were impossible to express such a concept in the Holy Tongue itself. “Rav” – the Hebrew term for rabbi – is not to be applied to non-Orthodox religious leaders, in Reb Moshe’s view. Only the foreign English term will do.

Ironically, the stance articulated in “Igrot Moshe” – and tacitly applauded by Rabbi Riskin – finds telling historic resonance in the infamous 1913 South African Supreme Court ruling by Justice Malcolm Searle, so vigorously and effectively protested by Mahatma Gandhi. Searle declared that only Christian marriages had legal standing under South African law. Joseph Lelyveld’s 2011 biography of Gandhi, “Great Soul,” explains: “This meant all Indian wives, except a small number of Indian Christians, were living out of wedlock, and all their children were illegitimate in the eyes of their adopted country.” In the 1982 movie “Gandhi,” directed by Richard Attenborough and starring Ben Kingsley, the Mahatma’s objections to the law were phrased more sharply. (I have been unable firmly to establish the historicity of the language.) Addressing a large gathering of Hindu and Muslim men, Gandhi is depicted as saying: “Under this act our wives and mothers are whores. And every man here is a bastard.”

An halachic stance that denies the inviolable dignity of marriage to Jewish couples joined in matrimony by anyone other than officiants (and under conditions) fitting the narrow parameters Reb Moshe recognized as Orthodox has the same effect. The unions countless Jews have considered Kiddushin – sanctified marriages – are but illicit liaisons, and our children are born out of wedlock.

Cynically claiming to decrease the number of mamzerim by increasing the number of bastards is particularly craven.

Rabbi Riskin also writes: “The fewer women who require religious divorces mean fewer cases of women chained to impossible marital situations.” Jewish women (and men) are ill-served by consigning them to second-class, common-law relationships, devoid of religious legitimacy and ostensibly lacking in sanctity. To redress the plight of the agunah (the “chained” woman unable to secure a get from a recalcitrant or missing husband) by routinely denying the sanctity of the majority of Jewish marriages (or by denying that they are, in fact, valid marriages at all) is an abdication of rabbinic responsibility. It is an offensive portrayal of Jewish family law as being inadequate to the needs of contemporary Jews.

Divorce is no sin in Jewish law, culture, and theology. The breakdown of a loving marriage is tragic; the divorce process itself – with the get properly at its core – is a mitzvah, and reflective of the compassionate humanity inherent in Jewish tradition. In already tragic circumstances, it is spiritually harmful and insensitive for halachic decisors to tell divorcing Jews that not merely did their marriage fail, but in fact they actually failed to establish a marriage in the first place, despite it was precisely such a sanctified state they sought in good faith.

The scandalous stigma and social consequences of both non-marital unions and “bastardy” have been significantly diminished in American culture. These reframed cultural mores ought not be embraced or exploited – and certainly not applauded – as the basis for sweeping halachic legislation.

Consider the (presumably) unintended consequences of Reb Moshe’s ruling. If a non-halachic marriage requires no get – if it is not, in fact, a marriage – does infidelity within such a relationship fall short of the halachic category of adultery? Are extramarital affairs inculpable, less than sinful, in fact permissible matters of individual choice? Do they enjoy rabbinic sanction? Should traditional couples dispense with other halachic steps aimed at preventing agunot – such as pre-nuptial agreements and ketubot explicitly providing contingencies for the dissolution of marriage – and simply assure that their weddings are halachically compromised because they have worked with unqualified officiants, unworthy witnesses, and liturgies that depart from the normative tradition? Is choosing long-term domestic partnership unsanctified by any form of wedding ceremony a virtue to be commended as a preventive measure effective in reducing the number of agunot?

No.

To his credit, Rabbi Riskin also briefly cites the contrary opinion of Rabbi Yosef Eliyahu Henkin, who required a get even after a civil marriage, and by extension, it is to be inferred, after a “non-halachic” or non-Orthodox religious marriage, as well. (Those interested in a full English language analysis of this position and its implications might consult Rabbi Isaac Klein’s 1938 responsum on “Civil Marriage.”)

The stance shared by Rabbis Henkin and Klein and many other venerable halachic authorities is based to a great extent (albeit not exclusively) on two principles of Jewish law. The first is a legal presumption (pioneered by no less than the sage Hillel) that a Jew, given the choice, would not consciously choose to render his sexual activity forbidden when it might be deemed sanctified. (Ein adam oseh be’ilato be’ilat zenut.) That is to say, in the context of civil (or for that matter, religious) marriage, Jewish law presumes (with binding force) that the couple willingly embraces the status of Kiddushin: sanctified marriage, if not halachic in its ritual solemnization, halachically binding in its effect. (See, e.g., Gittin 81A-B.)

The second principle of Jewish law animating Rabbis Klein and Henkin and their rabbinic disciples of all religious stripes and affiliations today is “Yatza kol mekudeshet.” If there is a public perception or presumption that a couple is married, notwithstanding uncertainty regarding their marital bona fides, and notwithstanding the lack of legal evidence or documentation of their marriage, their union is accorded the status of (at least possible) Kiddushin. They are presumed (with binding legal force) to be married.

How much stronger is this presumption when marriage was their intention, and they signified that commitment by a ceremony – religious or civil – and continue to live together in intimate partnership: that is, as husband and wife. (See, e.g., Gittin 88B, Even Ha-Ezer 46:1.)

Both these principles of Jewish law apply directly – and with force of particular clarity – to countless Jewish couples whose marriages Rabbi Feinstein would demean and dismiss as non-halachic. While arguably an accurate estimation of some wedding ceremonies and creative, contemporary rituals joining Jewish couples in marriage, non-halachic is not properly applied to the binding and sanctified status of the marital bond subsequently established by those progressive (or in some cases ill-served) couples by virtue of their intimate domestic partnership. Should they, alas, choose in time to dissolve their unions, the legal (and moral) presumptions born of their married life demand that they do so not merely through civil decree, but by securing a get – a Jewish religious divorce, properly and painstakingly executed.

Rabbis, religious authorities, and even divorcing parties who harbor sincere or principled doubts about the halachic force of a particular Jewish marriage, should nevertheless require a get for its dissolution. They should do so out of an abundance of caution and in the spirit of theological humility – out of “safeq” – to address the possibility that they are wrong, and that kiddushin was in fact established, if not through the wedding, then through wedded life. A get given in the cautious but mistaken presumption of kiddushin renders the couple’s relationship no less dissolved, and in no way undermines lofty halachic standards for marriage. A get omitted in the mistaken presumption that halachic marriage never took effect, however, leads to adultery, polygamy, and illegitimacy. Rabbinic policies and rulings that encourage such omissions in the name of Orthodox exclusivity do not represent path-breaking progress in Jewish family law; they inflame Jewish communal infighting and internecine hostilities.

It is my hope that Rabbi Riskin, in many ways an eloquent voice of moderation who has served the Jewish people well and with distinction, will clarify his own stance on this matter and call for Jewish ritual divorce even in cases Rabbi Feinstein might have deemed doubtful at best.

We find ourselves now in the closing days of Elul – the month of introspection, repentance, and reconciliation leading to the High Holy Days. Tradition identifies the name “Elul” as an acronym taken from the verse in the Song of Songs: “Ani l’dodi v’dodi li” – “I am my beloved’s and my beloved is mine” – a verse recited under countless wedding canopies. In Elul we strive to renew our loving covenantal bond with the Almighty. As the season of repentance proceeds, the Jewish People and its rabbinic leaders should also be focused on elevating the level of sanctity in Jewish marriage and our other loving relationships – not on denying marital sanctity where it is properly to be found.

Joseph Prouser is the rabbi of Temple Emanuel of North Jersey in Franklin Lakes, a certified mesader gittin (rabbinic adjudicator of religious divorce), and a member of the Joint Bet Din of the Conservative movement.

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