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.