Weiss-Dodelson: Sorting out the major points of dispute

Guest Post by Kevin in Chicago[update: Added comments]

Dear Rav Eidensohn,

[...] Some readers are misunderstanding your position, to point out that a moral obligation is not necessarily a halakhic obligation, and to make clear your overriding concern that a misunderstanding of halakhah not lead to improper pressure on husbands and questionable gittin. So please accept these comments for what they are worth, and feel free to use or not use any part of them in any way you see fit.

Divorce is an emotionally-charged subject, and it does not help to mix in the antagonism between liberal and conservative wings of Orthodoxy. One can argue with the recent RCA pronouncement, but it is not an endorsement of "get on demand," nor does it purport to be a statement of halakhah -- although this should have been made explicit.

It seems that some commenters are talking past each other. I have no halakhic expertise, but perhaps I can help separate the issues. DT is concerned with the well-being of both parties to this divorce. But more importantly, he is concerned with a serious halakhic issue that extends far beyond this case. I understand this is basic halakhah: a get must be given willingly. If given under duress, it is invalid. If a get is invalid, the wife cannot lawfully remarry and her subsequent children are mamzerim; if the get is of doubtful validity, her subsequent children are safek mamzerim. This is a very serious stigma and disability extending to her children's children down the generations.

If a beit din issues a valid decision that a husband is required to give a get and he refuses, the beit din may authorize "persuasive" measures, although their extent is disputed among poskim. But the precondition is a judgment of a beit din that the husband is obligated to give a get; a civil divorce judgment is not a substitute.

The pressures the Dodelsons have brought to bear have been quite public. If they were not halakhically justified, and R'AMR gives a get appearing to have succumbed to them (although not directly admitting it, which would void the get ab initio), the get would be of doubtful validity or worse. The problem risks being multiplied many times over if it becomes acceptable to similarly pressure a husband to give a get before a beit din has ordered him to do so.

The belief has been spreading in some Orthodox circles that if there is a civil divorce, the husband is obligated to give, and the wife to receive, a kosher get. But absent a halakhically valid agreement, any obligation to give a get following a civil divorce is a moral obligation, not a halakhic one. The two should not be confused. It has long been acknowledged that one can be a "naval bir'shut ha-Torah," that a Jew can act shamefully without actually violating halakhah. The concern is that because of the specific and unusual requirement that a get be given willingly, pressure on the husband to "do the right thing," if the pressure is not in conformity with halakhah, could result in the wife receiving a doubtful or invalid get. This concern has nothing to do with condoning "extortion" by withholding a get. It is a concern that the get, when given, be universally accepted as valid, and avoid the risk of creating mamzerim.

The timing of the RCA's recent pronouncement made it look like a capitulation to pressure from the Dodelson camp and advocates for agunot, and it may have been. But it was not, and did not claim to be, a halakhic ruling. It was a statement of policy and moral exhortation. The RCA stated that,"when the marriage is functionally over and the relationship between the husband and wife has irreversibly ended ... the withholding of a get under such circumstances [is] an exploitation of the halachic process and a manifestation of domestic abuse." "Exploitation of the halachic process" implies something not actually forbidden by halakhah. The assertion that the RCA's statement purports to overturn millennia-old halakhah is mistaken. And in fairness it should also be noted that saying a get should be given and received once "the relationship between the husband and wife has irreversibly ended" (which it clearly has in the present case) is not the same as

requiring a get "on demand."

On the other hand, the "Kol Koreh" authorizing coercive measures against R'AMW and his father and uncle, which clearly DOES purport to be a halakhic ruling, is far more troubling. This proclamation, which DT called "halakhic nonsense" in his November 18 post, purports to be based, not on the judgment of a beit din, but on a seruv that, as "Joseph" explained in his guest post, is invalid and/or moot. I am a "nobody," but as I can't imagine that DT is brazenly ignorant, I can't imagine an explanation for respected rabbis signing off on "halakhic nonsense" that reflects well on them -- or on American Orthodox Judaism.

Update: Three additional thoughts:

Poor Rabbi Greenwald must have been painfully reminded of Mishlei 26:17:  מַחֲזִיק בְּאָזְנֵי־כָלֶב עֹבֵר מִתְעַבֵּר עַל־רִיב לֹּא־לֹו׃ 

Re the "Kol Koreh" -- Should it be understood that the credibility of a rabbinic pronouncement is inversely proportional to the number of rabbis signing it?  How many of the signatories would have individually signed off on teshuvot to the same effect?  Do "shepherds" have a "herd instinct"?  A wolf-pack instinct?  "Lo tihyeh acharei rabb[on]im l'ra`ot"?

At this point, neither member of this couple appears to be a desirable marriage partner.  Perhaps this period in which neither can remarry is a hidden blessing, an opportunity to mature.  When two people have a child together, neither should treat the other as disposable.  IY"H, they will come to the point of asking forgiveness of each other, and if not reconciling as husband and wife, at least treating each other respectfully as co-parents.