Tuesday, April 29, 2008

Convert the wife to save the husband? II

The previous post about post war aliya from Switzerland was missing the halachic conclusion. A rav from Switzerland suggested to me that a series of letters of Rav Herzog concerned this matter. Below is my translation of one of these letters.

Rabbi Isaac Herzog was born in Lomza, Poland, in 1888. When he was nine years old, he moved to Leeds, England, with his family. An outstanding rabbinic scholar, he acquired a broad general education, including a doctorate from the University of London. After serving as rabbi of Belfast and Dublin, he was invited in 1936 to serve as the second Ashkenazic chief rabbi of Israel, after Rabbi Abraham Isaac Kook. He took an active part in rescue operations in Europe during the Holocaust and afterward, and was instrumental in saving many Jews and bringing them to Israel. He was also actively involved in the affairs of the newly established state of Israel. His posthumously published responsa reflect the trials and tribulations of the Jewish people in the twentieth century. Herzog died in Jerusalem in 1959. [taken from Bar Ilan Responsa database]

Rav Yitzchok Herzog(Heichal Yitzchok E. H. 1:21): Question: December 23, 1948 Recently there have been an increase in the cases that have come before me of Jews in our land who are married to non‑Jewish women (and the reverse). They request that their spouse be converted and that they continue being married to them by means of chupah and kiddushin because they are planning to emigrate to Israel. 1) Most of these non‑Jewish spouses have special merit because they saved their Jewish spouse from death by means of refusing to fulfill the orders of the evil Nazis to separate and divorce their Jewish spouse. Thus they put themselves in great danger and they were sent to concentration camps. 2) Some of them come when they are pregnant and wish to convert so that their child will be Jewish. 3) Some of the already have children from their Jewish husband and wish to convert their children together with them. Up until now I have refused to convert them because their motivation is not for the sake of Heaven but rather because they want to emigrate to Israel. I have conducted myself according to the Shulchan Aruch concerning a non‑Jewish woman who is suspected of living with a Jew and now wants to convert. However on the one hand I see the great and terrible tragedy of hundreds of families who wish to emigrate to Israel and on the other hand I am afraid to accept the responsibility for this decision. Therefore I am turning to you [Rav Herzog] the chief rabbi of Israel to make the halachic ruling in this matter. Answer: This is truly a difficult question….1) The main issue in this matter is not concerning the rabbinic prohibition of someone suspected of sexual relations with a non‑Jew… because as Yevamos (24b) explains the prohibition is only to prevent the strengthening of the suspicion. But in a situation where they are already married – the reason for the prohibition doesn’t apply. However Tosefta (Yevamos chapter 4:6) states that if a non‑Jew has sexual relations with a Jewish woman even if he converts afterwards he can not marry her because we suspect that he converted in order to marry her. But this is only lechatchila….2) However the present case is where they are already married according to secular law and thus it is not relevant to say that they are converting for the sake of marriage. Even though it is still possible that the conversion is because of remorse [for being intermarried] and thus he is putting pressure on her to convert and thus she wants to convert because of this pressure – but nevetheless the concern for such a possibility is not so great. Therefore since bedieved they are gerim we don’t have to be concerned so much with this. However it is different where they have definitely had sexual relations but they are not married even according to secular law. In such a case there is a genuine concern that the conversion is solely for the sake of marriage. In other words he wants to marry this particular non‑Jewish woman but he doesn’t want to live with her without marriage or to marry her in a secular marriage. In contrast where they are already married and bound to each other there isn’t such strong reason not to accept them and if they are accepted as converts then we definitely marry them afterwards with chupah and kiddushin. However here we have an additional concern that their motivation is in order to emigrate to Israel. This concern however depends on the conditions of the country where they are presently residing. If it is because the are aliens and they can’t remain in the country, then it is clear that they have an ulterior motivation for conversion. However if it is possible for them to remain in the country but they still want to emigrate to Israel it would seem that their intent is for the sake of Heaven because they are uprooting themselves and leaving their source of livelihood to move to a different land and specifically Israel. Thus it is clear that their intent it to be a part of the Jewish people and land. This is only so if it is clear to the beis din that they both want to emigrate to Israel. (But not if only the Jewish spouse wants it and the non‑Jewish spouse is merely agreeing to the pressure.) Then it is clear that the motivation is good and there is no basis for refusing to accept them. However if there is no possibility to remain in your country and they are forced to emigrate to Israel – they obviously have defective motivation. Nevetheless there is still basis to decide in their favor according to the view of Rav Shlomo Kluger (Chochmas Shlomo E.H. #11:5 and Tov Taam veDaas). He says that in circumstances where it is clear that they will not separate from each other under any circumstances and furthermore the Jewish spouse will give up Judaism and convert to Christianity - it is possible to be lenient. However this is only valid if the rav examines them very thoroughly and is fully satisfied that they in fact are interested in converting. The candidate has to have religious sensitivities and when he/she is explained fully and clearly the fundamental principles of our religion and the illumination of the mitzvos , it is then reasonable that he/she will observe them e.g., Shabbos and kashrus, family purity laws etc. It is also necessary that they explicitly promise with a clear conscience to completely observe Judaism. It is also necessary to obtain a promise from the Jewish spouse that he/she will also be fully observant. Otherwise the woman will follow after her Jewish husband or the husband will be influenced by his Jewish wife. It is also necessary to explain to them that even though that there are many non‑observant Jews - but a non‑observant Jew is still a Jew. However for someone who wants to convert, it is impossible unless they accept these conditions. In such a manner it is possible to convert the non‑Jewish spouse in such difficult circumstances and where these people have such merit according to what you have written in your letter. 3) You should know that even that already in the days of the Tannaim the accepted halacha was that bedieved all these who converted for ulterior motivation were considered valid gerim, nevertheless there is a serious concern raised in our day. That is because previously a sinner was despised and attacked amongst our people. Therefore when a non‑Jew accepted Judaism, even if his initial motivation was for the sake of marriage – he knew he would be in a very bad position in Jewish society (and he was already totally rejected in non‑Jewish society) if he didn’t conduct himself according to the Torah. In contrast in our day where there are so many non‑observant Jews – not only does non‑observance not cause him any difficulties – but he can be part of the elite of our people and community. Thus specifically today it is of great concern whether the conversion is truly done to accept the obligation of the mitzvos or because of some ulterior motivation. In other words whether he says one thing but thinks differently in his heart. While the Ritva said that incidental to being forced he will honestly come to accept. But today we can say that incidental to being forced he will say whatever he has to but why should he truly decide to observe the mitzvos? Thus today, in contrast to the past, there is much greater responsibility for the rav to understand all aspects of the case until he is truly confident that these people are in all likelihood going to observe our holy religion. 4) In regards to the non‑Jewish women who are married to Jews and they are pregnant and wish to convert in order that their child will be Jewish. This is really the question of the conversion of the mother and is dependent on what we just mentioned as to whether to accept the mother. However here it seems that there is greater room for leniency. Since her intent is that the child should be Jewish this seems to be motivation for the sake of Heaven and is not included in having ulterior motivation. Nevertheless if it seems that she herself has no interest to be Jewish herself then it would seem that her interest is only for the sake of the child so it will be easier for him to emigrate to Israel and she will follow him afterwards there. But this all depends on what we just discussed and it ultimately depends on the perception of the rav. So even though a child who is brought to the beis din for conversion is converted on the understanding of the beis din since it is beneficial for the child to convert – but here it is different. Because we are converting her and not the child and thus everything depends on her and thus we return to the issues previously discussed as to whether to accept her. If she is converted the child automatically becomes converted. 5) Concerning the case where she wants to convert together with her children from a Jew this again is dependent upon what we have discussed. However even though the halacha is that a child who is brought to convert by his father and mother and is converted by the court because it is viewed that it beneficial for the child to do that which his parents do and in particular what his father wants to do. Here according to the halacha even though the father is not halachically the father but since he is the biological father the reasoning still applies. But here we have a different question. If both the father and mother are not Jewish and yet it is clear that they want their child to be Jewish but they themselves refuse to accept upon themselves the heavy burden of Torah observance – it is likely that they will truly raise their child as a Jew. Because if they didn’t want him to be a Jew why would they bring him to beis din to be converted? Thus there is no reason to be concerned that their child will learn from them not to be observant since he knows that they are not Jewish. In contrast in the case where the biological father is a Jew and the son sees that his father isn’t observing the mitzvos and that the mother who converted is also not observant – what is the likelihood that he will be educated to be a Jew? Why do we need to get involved in this problem. Thus again the matter depends upon what I have said already. If according to the evaluation of the rav it is likely that the parents will fully observe Judaism and on the other hand if the conversion is not done that the Jew might convert to Christianity it is possible to accept as described above.

12 comments:

  1. "I see the great and terrible tragedy of hundreds of families who wish to emigrate to Israel "

    1. The requirement that one be a Jew k'halacha has been removed as an issue with regard to citizenship (refuge) in the State of Israel.(Amendment to the Law of Return).

    2. The circumstances that applied to Holocaust era Europe (ie. Most of these non‑Jewish spouses have special merit because they saved their Jewish spouse from death by means of refusing to fulfill the orders of the evil Nazis to separate and divorce their Jewish spouse. Thus they put themselves in great danger and they were sent to concentration camps.) are thankfully not relevant.

    3. Rav Herzog states: "However if it is possible for them to remain in the country but they still want to emigrate to Israel it would seem that their intent is for the sake of Heaven because they are uprooting themselves and leaving their source of livelihood to move to a different land and specifically Israel. Thus it is clear that their intent it to be a part of the Jewish people and land."

    The Jewish people have now had experience with the result of conversions that have been done for the benefit of those who have no interest in becoming Observant Jews but who only wish to live in Israel, that is replacing halachic Judaism with Zionist Nationalism. It would seem that the proliferation of pork stores, mechalel Shabbos, anti Semitic incidents and a crematorium would demonstrate that those who convert in order to become citizens of a secular State do not put their lot together with that of the Jewish people.

    4. "Nevertheless there is still basis to decide in their favor according to the view of Rav Shlomo Kluger (Chochmas Shlomo E.H. #11:5 and Tov Taam veDaas). He says that in circumstances where it is clear that they will not separate from each other under any circumstances and furthermore the Jewish spouse will give up Judaism and convert to Christianity - it is possible to be lenient."

    Rav Shlomo Kluger was a Dayyan in Brody, Galicia. Chochmat Shlomo was published in 1825, before Franz Joseph's 1849 Emancipation of the Jews. In Galicia by 1853 there was already a backlash and new bans against Jews acquiring real estate and moving to certain areas of the empire were constituted. Soon "Jewish oaths" were restored, and in some districts, like Galicia, Jews were forbidden to hire Christian domestics. (Chazal say Bishul Akum leads to intermarriage).

    Tuv Taam v'Daas was published in 1860. Galicia's Jews did not obtain equal status under the law until 1868.

    Can Rav Kluger's responsa regarding a community that had not yet tasted the beginnings of emancipation apply to those Jews in communities where full civil rights are protected under the law?

    With regard to the possibility that the "Jewish spouse will give up Judaism and convert to Christianity", we have also seen that in many cases the intermarried couple and their offspring will become involved in the Messianic Churches (ie Jews for Jesus) especially after the Gentile spouse and/or children are converted. In many cases the Gentile offspring of an intermarriage will use their Jewish education to become leaders in movements such as Jews for Jesus. (I can provide names and copies of correspondences to Rabbi Eidensohn).

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  2. Today's news from Israel:
    http://www.vosizneias.com/2008/04/bnei-brak-israel-arson-suspected-in.html#links

    And some history:
    http://pogrom.org.il/eng_index.php

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  3. Jersey girl said:

    Can Rav Kluger's responsa regarding a community that had not yet tasted the beginnings of emancipation apply to those Jews in communities where full civil rights are protected under the law?
    -----------
    The Achiezer's original teshuva 3:26 was based on Rav Shlomo Kluger. He then retracted his heter because it simply wasn't working (3:28).
    Rav Herzog's response is complex and contradictory. On the one hand he is very machmir - rejecting the position that conversion with ulterior motivation is valid bedieved in modern times. On the other hand he is saying that only when faced with the threat that a person will convert to Christianity if the spouse isn't converted should it be allowed. And at the same time he is insisting that really the rabbi has to decide whether the conversion is sincere. On top of that he states that this is not a universal heter but the result of the unique circumstances of herosim by the non-Jewish spouse.

    I am still trying to find out what actually happened. A rav in Switzerland is actively trying to find the answer.

    In sum it is not clear what Rav Herzog wanted - he seemed to reject conversion but then gives permission to the local rabbonim to convert if they see fit. Is he poskening or just throwing the hot potato back ?

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  4. My father was raised in NY and attended an synagogue led by a prominent Ashkenazic Rabbi in the 1940s.

    When the Rabbi's son fell in love with a gentile woman, the young woman converted and the wedding was performed.

    My father, who was 16 at the time, realized that everything he had been taught about what the existence and expectations of Hashem was a bunch of subjective nonsense that even his (very famous) Rabbi didn't believe in. He saw that Halacha could be bent to the will of someone who really wants to get away with something they shouldn't be doing. To say this had a negative effect on his observance would be an understatement.

    Intermarriage is NOT OK. Period.

    The halachic arguments posted here appear to imply all I have to do to get my gentile woman converted is to FIRST marry her! and THEN go to the Rabbi! I know plenty of people who did exactly that.

    That's not very much of a barrier to intermarriage.

    I understand that some of these arguments are specific to Holocaust era circumstances, but the problem is that the Rabbis of TODAY apply these rulings and opinions without comparing the circumstances.

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  5. Please forgive me, but this may be more of a question than a comment, and may be a bit off topic.

    This whole discussion of Holocaust era conversions is definitely fascinating from many points of view.

    I have the impression that Rabbis are split on the question of whether a conversion is conditional (can be retroactively invalidated if found to have been done under certain circumstances) or permanent regardless of the future behavior of the one who converted.

    If one believes that a person who has converted is a Jew for life, then it seems to me that great harm is being done to the innocent gentile in order to save the Jew from sinning. Afterall, if the gentile is already following the Noahide laws, she's OK. But if she becomes a Jew and then doesn't observe properly, she's on the hook.

    Is it ethical to sacrifice the soul of a gentile to possibly stop a Jew from continuing to sin? What is the justification for this? Isn't it putting a stumbling block before the blind (gentile) to let her commit to a contract she cannot possibly keep?

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  6. Anonymous wrote:

    Intermarriage is NOT OK. Period.

    The halachic arguments posted here appear to imply all I have to do to get my gentile woman converted is to FIRST marry her! and THEN go to the Rabbi! I know plenty of people who did exactly that.
    -------------
    Actually the Chedvas Yaakov actually suggested this as a possible solution - but then withdrew it.

    While I agree with your view, I am presenting what major talmidei chachomim have actually done in different circumstances. It is interesting to note I still haven't found any precedent for R' Tropper's proselytization of intermarried couples nor for the claim that this is a legitimate techique in kiruv.

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  7. "It is interesting to note I still haven't found any precedent for R' Tropper's proselytization of intermarried couples nor for the claim that this is a legitimate techique in kiruv."

    Rabbi Dr. Emmett Allen Frank 1925-1987, I believe was the precedent who permanently changed the course of American Judaism.

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  8. Thanks to Daas Torah for providing an open forum to discuss these issues civilly!

    Rav Hertzog does not contradict himself: His main point is that the conversion entail commitment to observe the mitzvot of the torah.

    There are many halachik problems with a conversion involving marriage to a non jewish partner. However some of the problems are not deorayta problem; only issur derabbanan. Like "gerut leshem ishut"; "hanitan al hanochriss" are issurey derabbanan. Therefore one could use the rationale of Teshuvat HaRambam (as employed by Achiezer) that one can bend bedieved those prohibitions toprevent worse issurey deorayto. One of the examples in point, is the fear tthat the spouse might convert to chritianity bend. (OThers mention a fear that spouse will commit suicide or the like).

    But the major stumbling block on the issue is a deoraytah problem. Actually it is the problem in the essenceof the conversion! LAck of kabbalat hamitzvot or a clear assumption that the "kabbalah" is a sham! Here there is no way to "bend" the laws. Therefore Rav Hertzog was extremely machmir on this regard. Likewise it is not contradictory for Rav Hertzog to give discretion to the Rav to decide whether the convert is sincere or not: since the major stumbling block is the sincerity of the commitment therefore in gray areas it is in the discretion of the rabbi to decide that the person is sincere (unless it is clear that that there is no sincerity).

    Rabbi Tropper's position may perhaps not be contradicted by this TEshuva of Rav HErtzog as perhaps although it does not give proof to his position nevertheless one might argue that the importance of having the spouses observe torah and mitzvot give thepower to override the various issurey derabbanan and the right for rabbis to act in drawing those spouses who wish to return if there will be permission for their spouses to convert. Obviously provided if the converts will accept and live a life according to torah and mitzvot.

    This is in cotnradistinction with many rabbis (even orthodox) who convert in cases of marriage where most of their cases does not demand that the convert (and the spouse) observe torah and mitzvot!

    Thanks again for allwoing open discussion on the matter and for the translation of these fascinating teshuvot!

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  9. Is it ethical to sacrifice the soul of a gentile to possibly stop a Jew from continuing to sin? What is the justification for this? Emes v Emunah said..
    Isn't it putting a stumbling block before the blind (gentile) to let her commit to a contract she cannot possibly keep?

    ----------------

    Good question and bli neder I'll soon post translations of teshuvos which address the issue.

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  10. Anonymous wrote:
    This is in cotnradistinction with many rabbis (even orthodox) who convert in cases of marriage where most of their cases does not demand that the convert (and the spouse) observe torah and mitzvot!
    -------------------
    I agree that your analysis of Rav Herzog might be correct - but it is not obvious that it is so. I appreicate your other comments. In response see todays' postings of two apparently contradictory teshuvos of Rav Moshe Feinsetin concerning the concept of acceptance of mitzvos.

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  11. "thepower to override the various issurey derabbanan....... (for rabbis to act in drawing those spouses who wish to return if there will be permission for their spouses to convert.)


    And to WHO or to WHICH "Rabbis" should the power to override the various issurey derabbanan" be granted?

    Should (for example)any or all of the following bear this grave burden?

    1. A Lubavitch shaliach with a one year smicha whose Beit Din is comprised of himself and two members who are publicly Shomer Shabbos.

    2. An out of town community Rabbi, a musmach of Hebrew Theological College whose Beis Din includes a retired shochet and an attorney who went to YU.

    3.The self described "Orthodox" Rabbi of a Conservative shul and two members who are familiar with the "books".

    4. The Dean of the University of Judaism who has a smicha from a Baal Teshuva Yeshiva in Israel whose Beis Din also includes a sofer and a community Rabbi who himself is a convert.

    (names provided upon request).

    Or should the power to override issurey D'Rabbonon be granted ONLY to the Gedolim of our times?

    Funny how many Rabbis who would never consider overriding issur d'Rabbanon to eat a chicken cheese sandwich, a decision which impacts none but himself will do so to permanently alter the course of the Jewish people for all of eternity.

    I will quote my mother (until 120) who told us as children "whenever you hear anyone mention the words "override the various issurey derabbanan" or its "only issur d'Rabbonim",

    WATCH OUT!!

    The only differences between Judaism and the other religions (ie Christianity, Karaites, Islam) IS the Rabbinical Law. As soon as you start to dispense with one piece of it, you are on your way to another faith. " (as evidenced by Reform).

    It is because of this that we are taught that in many situations Rabbinical Law should be guarded even more fiercely than the Written Law.

    There is no question that it is within the power of an individual Posek or Beis Din to rule EXCEPTIONS (heter) to Rabbinical Law under normal circumstances (ie. can one carry a cell phone on Shabbat if he is a doctor on call).

    But this is not the question.

    The real question, I believe is "WHO is qualified as a Dayyan with regard to a far reaching question such as who is a Jew?" A question which will impact the Jewish people for generations?

    It would seem to me that because the RCA which represents the majority of American Orthodox Rabbis has accepted the Chief Rabbinute's ruling in this regard, that it is nearly universal among Orthodox Rabbis that the answer would be "none of the above" and "the very few Rabbis who are Gedolim".

    This is with all due respect to Rav Tropper who is a Talmid Chacham (who I have known for 21 years), but who is not widely regarded as a Gadol Hador qualified to permanently alter the course of the Jewish people for all of eternity.

    Rabbi Dr. Emmet Allen Frank also was not regarded as a Gadol even among the Reform. It is tragic that it appears he has managed to impact the Jewish people in such a far and broad reaching manner.

    Another saying comes to mind and that is "Water seeks its own level and will go uphill due to gravity".

    There is nothing of more gravity with regard to the continuity of the Jewish people than the question of "who is a Jew".

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  12. Jersey,

    You raise some interesting points. However, they are separate (important)points. But the general point that there is room (or obligation) to give person a lesser of the evils so that he will at least be connected with basic yiddishkeyt is given by Teshuvot HaRambam, which is quoted by Achiezer and others.

    I agree though that there be clear guideliness by the people of the highest caliber and biggest of poskim of this generation where exactly to apply this method. I beleive though, that Rabbi Tropper is not the one who decides on the particular situations. The Batey dinim they established are the ones who have the job to make the decision if the particular situation merits or warrants this method.

    Shalom Ubracha

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