Monday, January 12, 2009

Conversion - Retroactive nullification - child


Anonymous requested that I post this story about the retroactive nullification of conversion of the adopted son of the philosopher Fackenheim. It could be an important story but there are not enough details to draw any definite halachic conclusions.

YNET reports:


בית הדין הרבני בירושלים סיפק השבוע שערוריית גיור חדשה המסעירה את הממסד
הדתי והפוליטי. אב בית הדין האזורי, הרב יששכר דב הגר, פסל רטרואקטיבית את
גיורו של יוסי פקנהיים, שחי כל חייו כיהודי ואף נשא אישה באמצעות הרבנות,
כדת משה וישראל.

פקנהיים גויר לפני 29 שנה, כאשר היה תינוק, בבית דין אורתודוקסי בקנדה. כל
חייו הוא חי כיהודי לכל דבר ובשלב מסוים עלה ארצה והתחתן כהלכה, לאחר
שהרבנות ערכה את כל הבחינות הנדרשות.

לאחרונה נתגלעו פערים ומחלוקות בינו ובין אשתו והם החליטו, בהסכמה
הדדית, להיפרד. בני הזוג פנו לבית הדין הרבני האזורי בירושלים במטרה
להסדיר הליכים והגישו בקשה לסידור הגט.


לאחר שהתברר לאב בית הדין כי פקנהיים התגייר בעודו תינוק, הוא החל
לתחקר אותו בנושאי שבת, כשרות ושמירת מצוות. כשהרב אימת כי מדובר בבחור
שאינו דתי ואינו שומר שבת החליט אב בית הדין כי אין צורך בגט מאחר והבעל
אינו יהודי. גיורו נפסל רטרואקטיבית ועל כן נישואיו אינם נישואים.


בני הזוג התעקשו בכל זאת לקבל מסמך גירושין רשמי מבית הדין, על מנת
שיוכלו להסדיר את התוקף המשפטי במשרד הפנים. רק לאחר דרישה נמרצת של
פרקליט האישה ותלונות לנציבות קבילות השופטים והדיינים הסכים הרב הגר לסדר
גט לחומרה, אך השאיר בעינה את הקביעה כי הבעל אינו יהודי, ושמו צורף
לרשימת פסולי החיתון באופן שימנע ממנו לשאת אישה יהודיה באופן מקובל.
[...]

22 comments :

  1. Also you have Tropper and Rabinovitz revoking a conversion of Modern Orthodox woman who sometimes walked outside without covering her head.

    http://www.jewcy.com/tags/leib_tropper

    Furthermore, just recently Tropper threatened to revoke the conversion of another woman who wished to go to Touro Nursing school, a program which actually caters to observant students.

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  2. What's the chiddush?

    Qabbalas ol mitzvos at the time the child becomes an adult is a retroactive precondition (should I call it a "post-condition"?) for geir qatan.

    -micha

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  3. Is that true? Does the child accept mitzvot at the time he becomes an adult, or rather affirm that he wants to be part of the Jewish peopel?

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  4. The adopted father appears to be the late Prof. Emile Fackenheim who was a famous professor of Jewish Philosophy at the University of Toronto. The issue must be whether this young man's behaviour after he turned Bar Mitzvah age was sufficient to evidence his acceptance of the mitzvot. I don't think that it is the same as the current controversies concerning kabbalat ha-mitzvot by adult geirim.

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  5. There seems to be a bit of a contradiction in the reported story.

    First we read:"שחי כל חייו כיהודי"

    I would take that to mean as a Shomer Mitzvos, not merely a Jew at heart

    We then read:
    כשהרב אימת כי מדובר בבחור
    שאינו דתי ואינו שומר שבת...

    Is this referring to a recent lapse in observance, or are we talking about a revelation that there was never "kiyum mitzvos" from Bar Mitzvah age?

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  6. According to nearly everyone, the requirement of qabbalos ol mitzvos is what it means literally: accepting the yoke of mitzvos.

    The way it was done in practice in the cases in which I was involved was based on the assumption that this would have to be during a window of time that could never be determined: at the moment the child grew their second pubic hair (which might be pulled out by underwear and never noticed) within the couple of seconds that time it takes to greet one's mentor (tokh kedei dibbur).

    Therefore, the beis din determines if the child was living as one who accepted the yoke of mitzvos during the period that must have included those seconds. If so, it constitutes de facto acceptance.

    The need for acceptance is either, as I wrote before, the qabbalas ol mitzvos; or, as a necessary step in making the shelichus (proxy) of the beis din valid. They can't act as the child's proxies unless it's to his unmitigated advantage (zachin le'adam shelo befanav). Or necessary for both reasons.

    There are lenient opinions in defining what it means to accept the responsibility of mitzvos. But given the proxy issue, it doesn't impact our case.

    -micha

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  7. Micha, acccording to your explanation it is impossible for a non-dati to adopt a child and for the child to be Jewish after bar mitzvah. But many poskim disagree. Please explain the sevara of these poskim.

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  8. Micha is wrong. None of the rishonim or major acharonim say that the child has to be mekabel ol mitzvot when he becomes bar mitzvah. The child has the right to protest his being Jewish, but if he doesn't he remains Jewish.

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  9. I have heard but I can not source this that the the person must actually be mekabel mitzvot by the age of 20 years of age. However I am aware that this is circumstantial and not a flat out ruling.

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  10. I do not know if I'm right or wrong as per the rishonim. However, I am reporting what is done lemaaseh today, as per a number of different batei din. I can not explain the position of batei din who hold otherwise; I wasn't present to ask the dayanim how they reason.

    The problems I see with accepting a child who is going to be raised in a non-O home as a geir are two-fold:

    1- How can someone appoint himself shaliach on behalf of another if it's not an unmitigated benefit? Since such a child is unlikely to try to live up to the covenant, can one serve as proxy to sign him up for it?

    2- It requires a loose definition of qabbalas ol mitzvos. Although R' Uzziel and R' Goren do propose definitions that would pretty much include anyone who wants to join and live with the Jewish people.

    As I wrote, there is no way to actively accept ol mitzvos in the geir qatan situation. The window of time for doing so would be unknowable. Therefore, one way (and they aren't mutually exclusive) the lack of protest is understood is that tacit agreement is such acceptance. Thus, the gemara's "im higdilu yecholim limchos" (if they grew up, they can object) IS the opportunity for qabbalas ol mitzvos.

    Not, as MS writes, that we require one and not the other.

    -micha

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  11. Also, read this column by R' Klass a"h, in particular the last three paragraphs. He quotes R' H Schachter quoting R JB Soloveitchik at the 2001 RCA convention saying that assuming shelichus in this case would not work.

    As for the theory of qabbalas ol mitzvos, see my Avodah posts at vol 25 #338 and #343, both summaries of parts of R' Tzevi Lifshitz's article on Bar Ilan's COTAR (pay section).

    The only positions that don't require it for conversion bedi'eved are the Ritva and the way the Bach understands the Rambam. (It's not the only opinion on how to read the Rambam, nor how the Bach holds himself.) The second post is about the variety of opinions as to how much the person must know and what that acceptance actually means.

    It's clear, though that with the exception of R' Kook, we hold like the dominant trend among the rishonim that some form of acceptance of mitzvos is a necessary part of conversion or a precondition for it -- even bedi'eved.

    -micha

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  12. MS wrote:
    "Micha is wrong. None of the rishonim or major acharonim say that the child has to be mekabel ol mitzvot when he becomes bar mitzvah. The child has the right to protest his being Jewish, but if he doesn't he remains Jewish."

    I'm sorry, Micha is RIGHT and you are wrong! Writing with such a certainty requires a little bit more knowledge on the matter:.

    None other than Tosefot says clearly that the idea of the child's ability to renounce yiddishkeyt is the KABALAT HAMITZVOT! (I'll quote the end of the tossefot which is clear and explicit but the few lines preceding may be relvant to the complete understanding of this concept)

    "תוספות מסכת סנהדרין דף סח עמוד ב
    .... ואע"ג דאמרינן בכתובות (דף יא.) הגדילו יכולין למחות הא אמרינן דכשגדלו שעה אחת ולא מיחו שוב אין יכולין למחות דמועיל להו מילה וטבילה של קטנות שהיתה בגופם ואין חסירים אלא קבלת מצות ומתוך שגדלו ולא מיחו היינו קבלה"

    S"since they grew and didn't RENOUNCE THIS IS THE KABBALAH!.

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  13. Micha,

    " It requires a loose definition of qabbalas ol mitzvos. Although R' Uzziel and R' Goren do propose definitions that would pretty much include anyone who wants to join and live with the Jewish people".


    the majority of majority of the posskim understand kabbalat hamizvot in it's literal terms: commitment to observe the mtizvot.

    "Therefore, one way (and they aren't mutually exclusive) the lack of protest is understood is that tacit agreement is such acceptance".

    " Thus, the gemara's "im higdilu yecholim limchos" (if they grew up, they can object) IS the opportunity for qabbalas ol mitzvos".


    This is exactly what Tossefot writes explicilty in Sanhedrin 68b! (although perhaps there is another understanding by Tossafot in Ktubot 11a).

    " The only positions that don't require it for conversion bedi'eved are the Ritva"

    Which Ritva?

    " and the way the Bach understands the Rambam. (It's not the only opinion on how to read the Rambam, nor how the Bach holds himself.)"

    And in my very HO, it is posisble that the Bach himself did not intend to say that the Rambam meant that kabbalat hamitzvot is not meakev bedieved (since the Rambam explicitly writes that KAbbalat hamitzvot is meakev for him to marry bas yisroel1); he is merely stating that this is not a requirement in immersion of ger! (although I must admit that the Chemdat Shlomoh understands the Bach the way you stated).

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  14. Roni, see the posts I posted links for. There, I cite more names and give more complete mar'eh meqomos. I didn't bother here, since my intent was to just summarize for people with insufficient interest in the topic to bother chasing it down.

    -micha

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  15. "Roni, see the posts I posted links for."

    Thanks. I saw the link and for the time being I do not see that the ritva you cited supports the there is no need for QOm. On the contrary, the first one on page 24b certainly seems to support the *need* of QOM leikuvoh:

    חידושי הריטב"א מסכת יבמות דף כד

    עמוד ב

    הלכה כולן גרים. פי' דגמרא גמיר לה דרבנן פליגי על ר' נחמיה וסתם מתני' כרבנן הוא, והקשו בתוספות כיון דגרי אריות גרים הן לרבנן למה אמרו שהם כגויים למ"ד גרי אריות הם, ותירצו דשאני התם שהכתוב אומר עליהם ואת אלהיהם היו עובדים לומר שלא נתגיירו בלב שלם מעולם ולא קבלו עליהם, ומאן דמכשר התם סבר דנתגיירו בלב שלם אלא חזרו לסורם, אבל (הא) הכא כיון דנתגיירו וקבלו עליהם חזקה הוא דאגב אונסייהו גמרו וקבלו ואע"ג דמחמת האונס הוה גירות הוא אליבא דרבנן.

    He explains that even according to the opinion who holds that the kutim are gerey emes it is because they converted "belev shalem" while the opinion which holds that they are not gerey emes; only geyrey arayot they hold that "loy nisgayrooh belev shlame" and "loy kiblu" implying that according to everyone Kabbalah and lev shalem is required according to ALL opinions! leikuvah!

    חידושי הריטב"א מסכת יבמות דף מז
    ומודיעים אותו קלות וחמורות. (פי') וסברא דרבוותא ז"ל שאם לא הודיעוהו אינו מעכב והכי משמע בפ' כלל גדול (ס"ח א').

    This second source, while that
    already suggest that it is not meakev: nevertheless according to the explanation of ChSH that there is a difference between kabbalat hamitzvot and kabbalat hamitzvot there is no proof from this ritva that he holds that it is not leikuvah (somthing that would seem odd, as in 24b he cleary implies that there is a need for QOM leikuvah!). עמוד א

    Ragarding Rambam I'm surprised that no one mentions that the Shulchan Oruch clearly implies that he holds that the Rambam's opinion is that qom meakev bedievad!


    שולחן ערוך יורה דעה סימן רסח סעיף
    חוץ מקבלת המצות שמעכבת אם אינה ביום ובשלשה. (ד) טז] ולהרי"ף ולהרמב"ם, אפילו בדיעבד שטבל או מל בפני שנים יז] או בלילה, מעכב
    ruling on it's own that kabblat om in front of 3 is leikuvah and according to rambam even the tevula or milah has to be in front of 3; implying that KOM is certainly leikuvah according to all (for rambam machmir even about milah and tevilah!).

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  16. Just to add: Rambam in Ch. 12 issurey biah rules clearly that kabbalat mitzvot is required so that convert can marry bat yisrael! Surprising that those who discuss it (almost all) do not mention this rambam (very few do).

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  17. Here is a lashon of Rav Moshe where if there was a "zmn gadol" that they kept torah and mtizvot then it would not longer be umdenoh demucach in the level of ANAN SAHADI that there is no kaboloh and in which case "Dvorim sheblev eynom dvorim"
    (even if one assumes that this shows that she really didn't mean it)' in which case the gerut stays bedieved!

    שו"ת אגרות משה יורה דעה חלק ג

    סימן קח

    דהרי התם שנתגיירו בשביל רצון בעליהן שלא היו נושאין אותן אם לא היו שומרות תורה הרי זמן גדול שמרו התורה בידען שלא יחזיקו אותן לנשים כשלא ישמרו התורה, ורק אחר זמן גדול תקפה יצר ע"ז עלייהו עד שלא היה איכפת להן אם יגרשום, ולכן לא נבטל גרותן מצד דברים שבלב אף שלפי האומדנא הוא הוכחה אף שעבר זמן גדול גם על תחלתן שלא קבלו המצות עלייהו אלא אמרו בפיהם לרמות בעליהן זאת הב"ד דלבטל הגרות בעינן אומדנא ברורה כאנן סהדי שזה ליכא בעבר זמן גדול אלא ענין השערות לכן קיימו נשותיהם דהא לא נבטל גרותן ולא נאסרו אף שנעשו מומרות. הרי חזינן מכ"ש בעובדא זו שמחשבתה אינה כלום לבטל הגרות מטעם שהוא דברים שבלב.

    ReplyDelete
  18. Recipients and PublicityJanuary 19, 2009 at 11:20 AM

    RCA launches a Conversion website, makes official the "North American Regional Network of Conversion Courts, launched in Jan 2007" -- Modern Orthodoxy determined to set its own high standards following guidelines of Rabbi J.B. Soloveitchik's conclusions. Will allow for direct contact with the Israeli Chief Rabbinate. Serious blow to efforts by EJF in the USA and to the Israeli based Va'ad Harabanim HaOlami LeInyanei Giur.

    "judaismconversion.org: Orthodox Conversion to Judaism: The official website of the Rabbinical Council of America Geirus (Conversion) Policy and Standards (GPS) Network

    ABOUT GPS

    In the summer of 2006 the Rabbinical Council of America and the Beth Din of America commenced a project to establish an improved and more dependable conversion process that would

    * Be fully in accordance with Halachah (Jewish law),
    * Ensure sensitivity to the dignity of all potential converts at all times, and
    * Provide reasonable assurance that its converts and their offspring be accorded acceptance and recognition in other Jewish communities in the future. Read More..: This initiative grew out of a widespread recognition that, in light of the great distances and variations inhering in American Jewish life, the existing system for carrying out conversions in the Orthodox community needed to be reviewed and improved upon. Specifically, it had become more and more difficult for sincere converts, or their offspring, to receive deserved recognition by rabbinic authorities in other communities and countries, including Israel, due to the growing number of outreach and conversion programs, varying standards adopted by individual rabbis in disparate communities, the increasing incidence and complexity attending so-called mixed marriages and their resulting children, and more generally a lack of reliable data and factual information to be made accessible to converts, rabbis, synagogues, schools, and Jewish communities at large. This is made all the more complex by virtue of the fact that recognition might be sought many years, even decades, after such conversions may have been performed by rabbis and Batei Din who might no longer be active, or even alive.

    With these issues in mind, the RCA and its affiliated Beth Din of America set out to create a comprehensive set of policies and standards, that would be adopted by existing rabbinical courts (Batei Din) dealing with conversions, as well as by new Batei Din that would be established in locales where none already existed. In so doing, individual rabbis would come together in a larger regional structure, pooling their resources, agreeing to adhere as a group to the published standards, and agreeing for the larger good of all concerned to work together for mutual benefit.

    The result was the establishment of the North American Regional Network of Conversion Courts, launched in Jan 2007. With the passage of time additional Batei Din have been, as will continue to be, established."

    ~~~~~~

    The above news comes from Rabbi Gil Student on his HIRHURIM blog who also posted some further fascinating insights, that run counter to what some have assumed here:

    "Sunday, January 11, 2009

    Child Conversions

    I once heard a very yeshivish educator, I think a rebbe in the Mir (Brooklyn), tell a story about how a cousin of his became observant. The non-religious cousin adopted a son and asked an Orthodox rabbi, I believe R. Haskel Lookstein, to convert the baby to Judaism. R. Lookstein agreed on condition that the parents would send the child to Ramaz. Some might see this as self-serving, since R. Lookstein is the principal (or dean, or something like that) of the school. But as it turns out, the child's education ended up influencing the family to become fully observant.

    I later learned that R. Lookstein's condition was based on a ruling from R. Joseph B. Soloveitchik. Halakhic authorities in the past have dealt with the question of whether we can convert children to become non-observant Jews. The problem is that the children cannot affirm the conversion, since they are minors, and therefore the religious court affirms the conversion on their behalf under the theory that you are able to acquire a benefit for someone without his permission (Kesubos 11a). In the case of conversion, becoming Jewish is a benefit and therefore the court can affirm that benefit on behalf of the child. But what happens when becoming Jewish is not a benefit for the child? Specifically, when the child will become an adult who violates prohibitions and accumulates divine punishments, that is not a benefit but a detriment. What gives the rabbinic court the right to acquire these punishments for this child by converting him to Judaism? That is the theory behind the inability of a religious court to convert a child into a non-observant family. R. Yechiel Ya'akov Weinberg (Seridei Esh 2:96 [2:61 in new editions]) writes that the broad consensus among halakhic authorities is that you may not convert a child into a non-observant family.

    R. Joseph B. Soloveitchik agreed with that consensus but added the following caveat: When the child will be given a framework of Torah education, with minimal family observance and day school attendance, there is a sufficient chance for the child to become observant and therefore the conversion is a benefit for the child (R. Hershel Schachter, Nefesh Ha-Rav, p. 245). In the case of the story above, it turned out that the Ramaz education did, in fact, lead to the converted child living a fully observant lifestyle.

    This is relevant because an Israeli religious court recently invalidated the conversion of Yossi Fackenheim, the adopted son of Reform philosopher Emil Fackenheim (link). I don't know the details of Fackenheim's conversion or who approved it but it seems that the validity of the conversion, at least according to R. Soloveitchik, depends on a number of details including what school he attended as a child. It is not out of the question that the conversion was invalid, but any informed comment on the matter requires investigation of the specific circumstances. It is certainly notable that his conversion was accepted when he applied for Israeli citizenship and was married by the Israeli Rabbinate.

    The discussion of his status is obviously painful for him and it does him no good to have us speculating about it. However, seeing how this might be an example of Israeli religious politics negatively affecting someone's life, it is important to note publicly that we have insufficient facts to determine whether this is a legitimate legal decision. It is sad that we cannot assume rulings of rabbinic courts are legitimate, but such is the current environment. Nevertheless, we should also not assume that it is illegitimate. Right now we just don't know.

    The RCA recently launched its conversion website (link [www.judaismconversion.org]) and lists its requirements for child conversion, a version of which I am told has been in effect for over a decade. They are consistent with what has been relayed in the name of Rav Soloveitchik (link [RCA Geirus Policies and Standards]):

    [5.b.]ii Therefore, a Jewish couple that has adopted a child to be converted must:

    • belong to an Orthodox synagogue within walking distance of their home, and

    • commit to 12 years of Orthodox day school education for that child. The Bet Din should set criteria for what it considers to be schools in which the child will receive a serious Orthodox day school education, and

    • In addition, full observance of elements such as Shabbat, Kashrut, holidays, etc., should be part of the adoptive family’s lifestyle. To that end, the sponsoring rabbi and the converting Bet Din should use the opportunity to encourage the family to accept a complete standard of observance. However, where this can not be accomplished, then at the very minimum, if there is

    • significant observance of Shabbat

    • complete observance of Kashrut

    • a positive attitude towards full mitzvah observance and commitment to Halacha within the basic family unit, after consultation with the RCA/BDA and after writing an explanatory memo that will be included in the conversion file explaining the circumstances, giyyur katan (conversion of the child) may be allowed.

    In other words, conversion into a family that isn't completely observant is not optimal but given a framework of a positive attitude towards basic Jewish observance, it is acceptable. It would be helpful to know if the Israeli court just invalidated these guidelines or the case under consideration did not fulfill them.

    And only slightly related, I was sent this humorous video of a secular Israeli discussing how to convert to Judaism (edited out his discussion of circumicision and how Charedim learning all day has led to Israel being free from any danger):

    SimpleJewish (YouTube video)"

    ~~~~~

    "Monday, January 12, 2009

    Child Conversions II

    (follow-up from this [above] post: link)

    by R. Michael J. Broyde

    There is no provision in halacha to note that a once valid conversion is now invalid, any more than there is a provision to note that once kosher meat is no longer. But, halacha (as well as any other legal system albeit that is for a different esay) recognizes that something can be thought valid or kosher at one time and in fact be determined later to have not been kosher or valid even at the original time it was done. There is nothing retroactive about such determinations or unusual. A get might be given that is thought to be valid at the time that it is given but turn out not to be valid, or a yibum done that was thought to be valid that actually was not, or an animal thought to be kosher that was subsequently determined never to have been kosher, or a marriage entered into that was later determined not to be valid. All of these are normal to halacha (and to every legal system).

    The crucial question is what are the proper standards for converting minors. Not surprisingly, that matter is in dispute.

    In general conversion to Judaism requires kabbalat hamitzvot, and without such kabbalah, the conversion is void. The conversion of a minor child is inherently different, since there clearly can be no obligation that the minor child accept mitzvot as he or she is without any da'at to accept anything; rather, his conversion is done with the consent of the rabbinical court. But, when ought a rabbinical court provide its consent?

    No less than four views can be found on when a rabbinical court ought to consent.

    The first view is the view of Rabbis Kook and Elyashiv (Da'at Kohen, Milah veGerut 147-148 and Kovetz Teshuvot YD 2:55) that a bet din ought not to convert a child to Judaism unless it is nearly certain that the child will grow up to be religious. The consent of the rabbinical court is a substitute in this view for the consent of the child, and no person would consent unless they expect to be observant in fact.

    The second school of thought is that of Rabbi Chaim Ozer Grodzinsky who advises not to perform such conversions unless the child will grow up to be religious, but recognizes that there will be situations where such a conversion can be validly done, even if the children will not grow up observant (see Achiezer 3:28), as such a conversion is sometimes in the best interest of the child.

    The third view is the initial view of Rabbi Moshe Feinstein, which permits conversions when the child will attend an Orthodox school since in such a case it is likely that the child will be religious. See Igrot Moshe YD 1:158 and EH 4:26(3). Rabbi Ovadiah Yosef indicates agreement with this view of Igrot Moshe. See Yabia Omer EH 2:3 and 2:4).

    The final view is the concluding view of Rabbi Feinstein, which is that it is always better for a person who is not obligated in mitzvot to be Jewish and thus the conversion of all minor children is possible. See Igrot Moshe EH 4:26(3) and see also Igrot Moshe YD 1:158. Rabbi Jospeh B. Soloveitchik adopted a view that reaches the same conclusion as the most liberal view of Rabbi Feinstein, albeit with a completely different mechanism (kibush); see Rabbi Joseph B. Soloveitchik, "Community, Covenant and Commitment" at pages 21-22. (For an alternative explanation of the Rav's view, see Nefesh Harav, p. 245, in which the Rav's view is understood to be similar to the first view of Igrot Moshe.)

    At first blush, Rabbi Feinstein's final view is difficult to understand, but I think that the explanation is as follows. Rabbi Feinstein avers that every person is better off being Jewish if they can, but since conversion to Judaism generally requires acceptance of mitzvot, most people, even if they wanted to be Jewish, are not prepared to accept mitzvot in fact, and thus cannot convert. Indeed, the sinning associated with violating Jewish law makes conversion a bad idea (as a matter of Jewish law) for people who do not generally obey Jewish law. Minors, however, only benefit from being Jewish at the time of their conversion, since they cannot sin (as they are minors), whereas the theological benefits of Judaism accrue to them immediately even as they are not obligated in mitzvot. Thus, conversion is always of benefit to a minor at the time of conversion. Logic would indicate that Chazon Ish would agree with this proposition, as the theological calculus concerning conversion is prone to the same logic.

    Obviously, the underpinnings of Rabbi Feinstein's view is that the rabbinical court need only determine whether the conversion is of benefit to this child at this very moment without pondering into the uncertain future, a view which seems to be consistent with the general parameters of the rules of zachin le-adam shelo be-fanav. For more on this issue, see "Zachin Le'adam shelo be-fanav" Encylopedia Talmudit 12:135-197. This issue is worthy of further analysis.

    It might well be that which view of the propriety of conversions to Judaism for minors who will not be religious one adopts depends on whether one thinks that such children can, in fact, reject the choice of Judaism made for them as children when they become adults. For more on this, see Shulchan Aruch Yoreh Deah 268:7 and commentaries ad locum.

    Given these competing views, it is not surprising that there is a bet din somewhere that rules fully like Rabbis Kook and Elyashiv that conversions done in which the child never turns into a religious adult are void. On the other hand, in the particular case at hand (involving the question of whether a woman married to man converted in this way needs a get), the same authorities who say this man is Jewish maintain that the decision to allow his wife to leave her marriage without a get is improperly lenient and permits eshet ish leshuk and creates mamzerim (no small matter, to be candid). Thus, in my view, since our general practice is to singularly strict on matters of mamzerut, I think it is wrong to allow this woman to remarry without a get being given, as Rabbis Feinstein, Yosef, Grodzinsky, Soloveitchik and Chazon Ish (gedolim of the first rank, and rov minyan and binyan of the last century, in my view) think that the child from the second marriage of this woman without a get is a mamzer.

    However, I see no reason to argue that Jewish law intrinsically mandates uniformity on standards of conversion (as it, for example, does on matters of Jewish divorce). Although at first blush one could argue that conversion matters, like divorce matters, are core status matters which thus call for a consensus, that is a mistaken read of the reasons why consensus developed in matters of divorce. In matters of divorce, possible mamzerut likely develops after a woman is given a divorce that is valid according to one view but not according to others and that possible illegitimacy is essentially uncorrectable. That is not the case in matters of conversion. A person who converts according to one understanding of halacha (which is rejected by other poskim) might not be Jewish according to all decisors, but the process of correcting that problem is relatively simple if the parties wish to correct it. For this reason, there has been no firm rabbinic tradition of consensus in many areas of status-changing halacha such as conversion or chalitza. (This is not a small issue.)

    I, for one, like the intellectual diversity within halacha, and am not at all certain that there is any problem here as a matter of halachic theory. We all know that poskim have different understandings of the halacha even about serious matters such as conversion, and that is okay. It is only in the areas of unchangable status, such as mamzerut that we seek deep consensus.

    Even if there is a practical problem there is no ready solution except to default to the highest standards, which creates serious problems of its own."

    ReplyDelete
  19. There are, some misleading reports with regard to this story that I think should be cleared up.

    1. Emil Fackenheim was a Holocaust survivor who married a Gentile woman. The couple had several children with including this man, Yossi.

    2. Fackenheim's non Jewish wife and her children underwent a fictitious and valueless conversion in Toronto to permit Fackenheim's intermarriage and were adopted by Fackenheim.

    3. The Fackenheims at first did appear to adopt an Orthodox lifestyle, but after a few years, the family dropped all pretenses of being Shomer Shabbos.

    4. Yossi Fackenheim was married to a Jewish woman in Israel by a Rabbinute Rabbi.

    5. But when Fackenheim, who now lives in England and lives a completely non observant lifestyle, went to give a Get, the Beis Din ruled that no Get was necessary because Yossi Fackenheim was not Jewish. His conversion never occurred due to his own non acceptance of mitzvos throughout his adult life and also his mother's non observance after her own conversion.

    6.This nullification also affects the conversions of the other Fackenheim children and grandchildren since the Beis Din discovered that Fackenheim's mother was not observant after the fictitious conversion which permitted Emil Fackenheim's intermarriage.

    The Jerusalem Post reported as well:

    "It also became clear during the proceeding that Mr Fackenheim never adhered to an Orthodox lifestyle."

    "Yossi said that he did not recall if he and his family were leading an Orthodox lifestyle at the time of his 13th birthday, which, according to Jewish law, is the age at which a male becomes responsible for his actions."

    I think that it is important to emphasize that this was not a conversion of a child who was adopted as an infant or toddler and who was raised as an observant Jew in an Observant home that was revoked.

    This was a "conversion", fictitious and valueless to permit an intermarriage where there was no observance of mitzvos at the time when the child reached the age of majority and acceptance of the mitzvos.

    Our Rabbis are finally sending a message loud and clear against intermarriage and those conversions, fictitious and valueless, which are done only to permit intermarriage. Such "conversions" are not conversions.

    Hopefully this news will spread before the thousands of young Jewish women in Baltimore and other US cities who have been unable to marry Jewish men because of so called "Orthodox Rabbis" who permit intermarriage via fictitious and valueless conversions find that their biological clocks have run out.

    The Jewish mother is quickly becoming an endangered species. It is up to our Rabbis to aggressively try to save her.

    ReplyDelete
  20. Recipients and PublicityJanuary 21, 2009 at 6:19 AM

    The Jerusalem Post of 19 January 2009 reports:

    "jewishworld.jpost.com

    Jan 19, 2009 23:48 | Updated Jan 20, 2009 9:31

    Rabbinical Court casts doubt on conversion of son of famed Jewish theologian

    By MATTHEW WAGNER

    The son of the late Jewish theologian and Holocaust survivor Emil Fackenheim plans to fight a decision by a Jerusalem Rabbinical Court Judge to retroactively annul his conversion of 27 years.

    In August of 2008, Yossi Fackenheim, who was converted to Judaism at the age of two by an Orthodox Rabbinical Court in Toronto, had his conversion revoked by Rabbi Yissachar Dov Hagar, a judge on Jerusalem's Rabbinical Court.

    Hagar's decision was made during divorce proceedings between Yossi and his former wife Iris, who were married as Jews in Jerusalem by the Chief Rabbinate of Israel in 2001.

    The two came before Hagar to finalize their divorce. But in the midst of the divorce proceedings Hagar told Yossi that there was no need for a get (divorce writ) since Yossi was not Jewish as his mother was not Jewish at the time of his birth. She later converted to Judaism.

    Orthodox Jewish law does not recognize marriages between Jews and non-Jews.

    Hagar ignored various documents provided by Yossi including a copy of his conversion certificate, an official recognition of Yossi's conversion by Jerusalem Rabbinate Marriage Registrar Rabbi Yitzhak Ralbag issued before the marriage and a document issued by the Chief Rabbinate of Israel recognizing Ralbag's document.

    In response to Hagar's decision, the Rabbinical Court administration said, "during Mr Fackenheim's divorce proceedings it became clear that he converted while still an infant, before he was able to make a conscious decision to convert.

    "It also became clear during the proceeding that Mr Fackenheim never adhered to an Orthodox lifestyle. The rabbinic court decided that since Mr. Fackenheim's personal status was unclear, a get would be issued to the wife. However, no official decision was made regarding Fackenheim's status."

    A witness who was present during the divorce proceeding but who preferred to remain anonymous said that the presiding rabbinical judge conducted the court session in a "surreal" way.

    "First, the man was dressed like a Hassidic Rebbe, with a satin robe and a huge fur hat, and not like all the other rabbinical judges with simple black coats.

    "Then the judge began to ask Yossi what he does for a living. Yossi told him that he was a Shakespearean actor. The judge responded that Shakespeare was anti-Semitic. We all thought he was referring to a Merchant of Venice. There was an attempt to convince him that in other plays Shakespeare came off as philo-Semitic.

    "But we quickly realized that he was not referring to Shakespeare's work. He said that all goyim are anti-Semites. Then he turned to Yossi and said, 'you aren't Jewish either.' The implication was clear."

    At the request of Iris's attorney, Jacob Segal, Hagar agreed to draft a document that permitted Iris to remarry. But Hagar added an appendix clarifying that Yossi was not Jewish and called him "Yossi the Convert" since "we do not know who are your mother and father," according to Yossi.

    Yossi, who is presently in Britain working on a Masters degree in acting, told The Jerusalem Post by telephone that he intended to fight to "get my Jewishness back." But he said that he was still unsure which avenue to take.

    He said he was deliberating between appealing to the High Rabbinic Court and filing a petition with the Supreme Court.

    Yossi, who had no children with Iris, was concerned that too much media exposure might endanger the conversions of his siblings, also converts, and the status of their children.

    In a letter of complaint to the Rabbinical Court, to the court ombudsman and to Chief Rabbi Shlomo Amar, Yossi detailed Hagar's degrading treatment.

    The court ombudsman, former judge Eliezer Goldberg, has opened an investigation of Hagar's courtroom behavior, said a source who was asked to give testimony.

    Yossi said that after it had become clear to Hagar that his conversion had been conducted while he was still an infant, the rabbinic judge began asking him questions.

    "I told him [Hagar] that my father and mother adopted an Orthodox lifestyle," recalled Yossi, "but that after my mother became ill with Alzheimers our religious adherence wavered."

    Yossi said that he did not recall if he and his family were leading an Orthodox lifestyle at the time of his 13th birthday, which, according to Jewish law, is the age at which a male becomes responsible for his actions.

    "I am dumbfounded and hurt by Rabbi Hagar's behavior," said Yossi. "I am a Jew and I was raised as a Jew in a Jewish home where I received Jewish values throughout my entire life.

    "My father, Professor Emil Fackenheim, may his memory be blessed, was a Holocaust survivor and devoted his entire life to healing the wounds created by the Holocaust. He stood for Jewish continuity and preventing assimilation.

    In the wake of the Holocaust, Emil Fackenheim, who served in Canada as a Reform rabbi, created the concept of the "614th commandment," which posited that "one should not give Hitler a posthumous victory."

    "To despair of the God of Israel is to continue Hitler's work for him," argued Prof. Fackenheim, who received a PhD in Jewish philosphy from the University of Toronto.

    He believed that people of Jewish heritage have a moral obligation to observe their faith and thus frustrate Hitler's goal of eliminating Judaism from the earth.

    Fackenheim's son Yossi said the treatment he received at the hands of Hagar was a direct transgression of this commandment."

    ReplyDelete
  21. Recipients and PublicityJanuary 22, 2009 at 11:47 AM

    As reported in Hamercaz.com:

    "Son Of Holocaust Survivor Fights Annulment Of Geirus

    Jan 20, 2009

    The son of the late Jewish theologian and Holocaust survivor Emil Fackenheim plans to fight a decision by a Dayan on a Yerushalayim Beis Din to retroactively annul his Geirus of 27 years.

    In August of 2008, Yossi Fackenheim, who was converted to Judaism at the age of two by an Orthodox Beis Din in Toronto, had his conversion revoked by a Dayan on a Yerushalayim Beis Din.

    The Dayan’s decision was made during divorce proceedings between Yossi and his former wife Iris, who were married as Jews in Yerushalayim by the Rabbanut of Israel in 2001.

    The two came before the Dayan to finalize their divorce. But in the midst of the divorce proceedings it was revealed that Yossi's mother was not Jewish at the time of his birth. She later converted to Judaism.

    In response to Dayan’s decision, the administration of the Beis Din said, "during Mr Fackenheim's divorce proceedings it became clear that he converted while still an infant, before he was able to make a conscious decision to convert.

    "It also became clear during the proceeding that Mr. Fackenheim never adhered to an Orthodox lifestyle. The Beis Din decided that since Mr. Fackenheim's personal status was unclear, a get would be issued to the wife. However, no official decision was made regarding Fackenheim's status."

    Fackenheim is a Shakespearean actor who is currently in Britian working on his Masters degree in acting. He said that he intended to fight to "get my Jewishness back." But he said that he was still unsure which avenue to take.

    He said he was deliberating between appealing to the Beis Din and filing a petition with the Supreme Court.

    Yossi said that he did not recall if he and his family were leading an Orthodox lifestyle at the time of his 13th birthday.

    His father, Emil Fackenheim, was a Holocaust survivor who served in Canada as a Reform rabbi."

    ReplyDelete

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