Tamar Epstein's heter versus the Haifa Kidushei Taus Case: A Comment

Guest post

With the Friedman-Epstein story unfolding, a number of bloggers and commenters have raised the fact that there are precedents in the Israeli Rabbinical Courts for annulling a marriage due to mental illness or defects. The most often cited case is the decision of the Haifa Regional Rabbinical Court in Case Number 870175/4, handed down by Rav Nahari, Rav Yagoda, and Rav Rappaport.

Supporters of Rabbi Shmuel Kamenetsky, Rabbi Sholem Kamenetsky, and Rabbi Greenblatt insist that the “heter” given to Tamar Epstein was, in essence, no different than that of the Haifa Rabbinical Court: in both cases, the dayanim relied upon mental health professionals to determine that the husband has a preexisting mental illness, thus justifying annulling the original marriage.

Detractors of the Epstein “heter” point out that the cases are not comparable. The husband in the Haifa case was in a vegetative state and thus unable to give a get, making his wife a true aguna. In the Friedman case, the husband is alive and well and can give a get, even if his terms are not amenable to his wife.

By reading the factual presentation in the Haifa decision one can immediately see the obvious distinction between the cases. A more important point – and one barely mentioned by the various blog postings on the topic, is the procedural difference between the two cases.

About two years ago, the Epstein camp issued press releases claiming that Tamar Epstein was “free”. Not a single rabbinical figure was willing to step forward and explain how a married woman became unmarried without having received a get. While there were plenty of rumors that support was coming from Rabbi Shmuel Kamenetsky – who together with his son have been friends of the Epstein family for decades. However, no admission on his part was forthcoming. On the contrary, Rabbi Shmuel Kamenetsky issues a signed statement denying that he allowed Tamar to remarry without a get. In any case, the exact meaning of the proclamation that “Tamar is free” was left to the imagination of those following the case.

Tamar's marriage during the Asere Yemei Teshuva brought the issue to the public – and led to the publication of the “heterim” written by Rabbi Sholem Kamenetsky and Rabbi Greenblatt. Rabbi Kamenetsky’s letter (in its various drafts) consisted of two or three typed pages and includes a short discussion of the halachic issues, as well as a factual section. At no point does Rabbi Kamenetsky claim to have spoken with anyone from Friedman’s side, let alone Aharon himself. The factual findings in his letter are exclusively based upon two sources:

a) Tamar herself, who presented the opinion of a therapist who allegedly treated the couple;

b) an “expert doctor” who diagnosed Aharon with two separate disorders. He never met Aharon, and appeared to base his opinion on conversations with Tamar and another woman who had been engaged to Aharon at one point.

Rabbi Greenblatt’s one page “heter” (350 words in total) mentions that most poskim opposed annulling marriages due to defect, but Rav Moshe Feinstein did hold that this was possible. Rav Greenblatt did not go into the facts of the case, relying, instead, on Rabbi Sholem Kamenetsky’s presentation that the husband is mentally ill and that this defect existed before the marriage.

The informal gag order having been lifted, we now know that Tamar Epstein was declared “free” – not by a duly convened Beis Din consisting of three independent dayanim well-versed in Even Haezer, but by “heterim” that ultimately boil down to the fact finding mission of a close family friend, Rabbi Sholem Kamenetsky.

Therefore, without getting into the halachic and psychological fallacies at the basis of the “heter,” we can see the complete lack of procedural justice in the Epstein case. No Beis Din was convened; Friedman’s side was not heard; the “dayan” who gathered the evidence was a biased and interested party to the case; the evidence appears to be largely hearsay; and the entire process was veiled in secrecy and, in fact deception: while Rabbi Shmuel Kamenetsky denied supporting the “heter”, both Rabbis Greenblatt and Sholem Kamenetsky wrote that he was, in fact, in favor of it. (There are also recorded conversations of Rabbi Shmuel Kamenetsky telling potential marriage partners for Tamar that they could marry her, despite Aharon not having given a get.)

The Haifa case was conducted in a completely different manner. The 89 page decision (nearly 40,000 words) was published in its entirety, although, as per Israeli law concerning Rabbinical Court proceedings, identifying details were omitted.

The decision was given by a panel composed of three dayanim, who had no connection to the litigants. Since the husband was unable to appear, the Beis Din appointed a guardian ad litem (his mother) to represent him in the hearings.

The evidence was gathered from a number of witnesses, including those from the husband’s side. A number of different doctors were consulted and these doctors based their opinions both on written medical reports and on the psychiatrist who had treated the husband.

Even after the three judges came to their conclusion, they certified the case for appeal and the dayanim of the Great Rabbinical Court of Appeals concurred with the lower court’s opinion.

We can summarize by stating that the Haifa case, in all of its aspects, was conducted with an adherence to procedure and transparency.

Such cannot be said for the Epstein case, which has been characterized by a partisan, agenda driven decision making process conducted without any attempt at procedural fairness. The entire process was obfuscated by a disinformation and distortion campaign perpetrated by those promoting the “heter.”

Justice Brandeis argued that “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” If so, we can only hope that exposing this procedural travesty of justice to the public will cure Klal Yisrael of this infection and, with Hashem’s help, prevent it from spreading any further than Philadelphia.