Reb Moshe's 40th Yartzeit and the Agunah Problem Rav Shalom C. Spira

 Today, 13 Adar 5786, marks the fortieth yartzeit of R. Moshe Feinstein. The Gemara, Avodah Zarah 5b derives from Deut. 29:3 that a student does not understand his teacher until after forty years. [This prescription is also inherent in Sotah 22b according to the elucidation of Tosafot, ad loc., as well as in Bava Metzi'a 33a according to the elucidation of Rabbeinu Chananel, ad loc.] Hence, the 40^th yartzeit of Rabbi Feinstein represents an opportunity to finally arrive at a true understanding on his legacy regarding the agunah problem.

    In Iggerot Mosheh, Orach Chaim, IV, no. 49, Rabbi Feinstein dismisses those advocates who seek to change the laws of the Torah for the sake of satisfying the feminist ideology. Rabbi Feinstein explains that since the laws of the Torah are from the Holy One, Blessed Be He (as per Rambam's eighth principle of faith) and cannot change (as per Rambam's ninth principle of faith), it is therefore both silly and heretical for any human to advocate for halakhic reform. The responsum was written by Rabbi Feinstein in 5736, precisely one year after his cousin R. Joseph Ber Soloveitchik announced ​the same in his famous "Gerus and Mesorah" lecture. Rabbi Soloveitchik delivered that lecture [available online at YUTorah Online ] in order to repudiate R. Emanuel Rackman's fraudulent proposal to [ostensibly] rescue agunot by allowing them to remarry without a get. 

    True to form, in a responsum composed on 7 Nissan 5730 (Iggerot Mosheh, Even ha-Ezer, III, no. 49), Rabbi Feinstein summons a lady to respect the sanctity of her dysfunctional marriage. In the tragic case that Rabbi Feinstein adjudicated, the husband had been exiled to Siberia, then drafted into WWII, and ultimately declared missing in action by the Soviet government in 5703. Despite it now being 27 years later [and the husband possibly dead], Rabbi Feinstein concludes that the wife cannot remarry but must rather patiently continue to wait for her husband's return, the husband maintaining his chezkat chaim according to Torah law. This responsum clearly rejects the feminist ideology of self-determination by every wife, and instead illuminates the path for we as Orthodox Jews to uphold the Jewish faith, apropos Yehudah ben Teima's prescription (Avot 5:20) to "be bold as a leopard, light as an eagle, swift as a deer and heroic as a lion, to champion the Will of your Father in Heaven." 

    It is therefore imperative to correct the agunah errors that have been attributed to Rabbi Feinstein by [a distinguished scholar who shares the same first name] R. Moshe Kurtz (be-mechilat Kevod Torato) in his recent article at Unpacking the Iggerot: Aiding Agunot - Tradition Online, as follows:

1. In paragraph 12, Rabbi Kurtz claims that Rabbi Feinstein "ruled that a man who is incapable of fathering a child possesses a categorical defect vis-à-vis marriage and that the couple’s union could thereby be dissolved retroactively (E.H., vol. 1, #79)."
   WRONG. Reb Moshe׳s responsum in EH 1:79 only nullifies a kiddushin when the bride did not realize that her groom is physically incapable of consummating the marriage even once. Reb Moshe infers this nullification from Bava Kamma 110b which he deciphers to mean that there is mekach ta'ut if the bride did not realize that her groom is afflicted with boils. Reb Moshe argues that a groom who cannot cohabit is the halakhic equivalent of a groom afflicted with boils. But if the groom can consummate the marriage even once, there is no comparison to Bava Kamma 110b, and hence the kiddushin is valid even if no child is ever born.
2. In paragraph 14, Rabbi Kurtz claims: "One of the most iconic instances that he [Rabbi Feinstein] employs kiddushei ta’ut regards a woman who discovers that her husband is attracted to men. Depending whether it is an occasional temptation or his primary preference would be key to determining whether it meets the qualifications for declaring the marriage retroactively void (E.H., vol. 4, #113)."
   WRONG. This responsum (EH 4:113) which is attributed to Reb Moshe [-see further that this attribution is contested-] only nullifies kiddushin if the bride did not realize that her groom actually engages in sodomy, not if the groom was merely attracted to other men. The distinction is essential. As per supra, point 1, Reb Moshe argued (EH 1:79) that where a bride who does not realize that her groom cannot cohabit even once, mekach ta'ut has occurred. Here, in EH 4:113, Reb Moshe is adding the further innovation [what can be termed "chiddush al gabbei chiddush"] that because a Jewish gentleman must commit suicide al Kiddush Ha-Shem rather than actually commit sodomy, a groom who actually engages in sodomy is the halakhic equivalent of a groom who cannot cohabit with his bride even once. [A dead groom cannot cohabit.] However, by contradistinction, the kiddushin of a groom who is unfortunately afflicted with a same-gender attraction, but who has the self-discipline to refuse to act on that attraction [and hence is not obligated, and indeed not allowed, to contemplate suicide], is a perfectly valid kiddushin even according to Reb Moshe's chiddush al gabbei chiddush. While superfluous in making the point, it should also be noted that the provenance of the entire volume in which EH 4:113 appears is contested by Rabbi J. David Bleich, Contemporary Halakhic Problems, VII, p. 150. [I.e., according to Rabbi Bleich, we are not necessarily compelled to even accept that Reb Moshe professed the chiddush al gabbei chiddush.]
3. In paragraph 17 and again in paragraph 19, Rabbi Kurtz cites an oral report claiming that Rabbi Feinstein allowed incarceration as a legitimate way of securing a get from a recalcitrant husband.
   WRONG. Reb Moshe actually acknowledges in EH 3:44 that incarceration of an innocent husband is a form of coercion that will invalidate the resulting get.
4. Also in paragraph 17, Rabbi Kurtz claims that if a penuyah (who is in collusion with an agunah) deceitfully pretends to propose a shiddukh with a recalcitrant husband and the recalcitrant husband therefore writes a get to the agunah (mistakenly thinking he will have a shiddukh with the penuyah), the agunah is thereby rescued.
   WRONG. That would be a get mut'eh and hence worthless as per Yevamot 106a, still leaving the agunah stuck.
5. In paragraph 18, Rabbi Kurtz claims: "In Iggerot Moshe (E.H., vol, 3, #44), he writes that the husband need not give the get out of a sense or moral duty, but even doing so to avoid financial penalties from the court would be sufficient. He elucidates that while a forced divorce is ineffective, in this case, he is seeking to alleviate the monetary pressure and the divorce is just the extrinsic means for achieving it."
   WRONG. Financial coercion invalidates a get coerced from an innocent husband, as per the Gemara, Bava Batra 40b that financial duress deprives the subject of free will. Reb Moshe's responsum in EH 3:44 is only referring to a special case where the husband already announced that he wants to divorce his wife anyway before the coercion was applied to him, and even there Reb Moshe has a safek whether this leniency [which he calls a sevara gedolah] is actually valid, meaning that Reb Moshe refuses to rely on the sevara gedolah alone. See Section K (commencing p. 59) of my essay Prenuptial Agreements | PDF | Halakha | Hebrew Words And Phrases .
6. In paragraph 21, Rabbi Kurtz claims: "Not only would the man be required to provide the aguna with the means she needs to survive but in a short, yet consequential responsum (E.H., vol. 4, #107), he [Rabbi Feinstein] even authorizes an additional stipulation in the tenaim documents that the husband will be penalized if he unilaterally refuses to issue a get."
   WRONG. Reb Moshe never authorized penalizing an innocent husband by way of a prenup. See Section R (commencing on p. 92) of my aforementioned prenup essay which clarifies what Reb Moshe actually intended with his prenup in EH 4:107. Importantly, Reb Moshe's responsum was published in two different versions, and the provenance of the entire volume of Iggerot Mosheh in which that responsum appears has been contested (as per supra, point 2). See also Yechezkel Hirshman's approach to Reb Moshe's prenup at Achas L'Maala V'Sheva L'Matta: Prenups X: More Trei Gadya - A Consumer's Guide to Halachic Prenuptial Agreements , which likewise contradicts Rabbi Kurtz.
7. In paragraphs 22-23, Rabbi Kurtz cites R. Yonah Reiss as ostensibly proving that R. Moshe Feinstein's willingness to apply financial pressure on innocent husbands served as the precursor to the RCA prenup.
   WRONG. Reb Moshe never authorized financial pressure imposed on innocent husbands (as per supra, point 6), and R. Yonah Reiss' academic dishonesty has been exposed by my article last year at Daas Torah - Issues of Jewish Identity:  Shabbat Zakhor and the Agunah Problem by Rav Shalom C. Spira
8. In paragraph 26, Rabbi Kurtz claims: "The veracity of these accounts notwithstanding, an undeniable hallmark of R. Feinstein’s writings is his compassion and resolve to aid all agunot. In Iggerot Moshe (Y.D., vol. 1, #101), he vehemently insists that “it is forbidden for us to be from the ‘humble ones’ and to cause a Jewish woman to remain an aguna or to cause her to turn toward illicit deeds or even to cause the loss of a fellow Jew’s finances.” He proceeds to cite the account of R. Zekharya ben Avkulus, whose exceeding “humility” in halakhic decision making was credited with the ultimate downfall of the Temple (see Gittin 56a)."
   WRONG. Rabbi Kurtz is repeating the discredited canard of R. Michael Broyde and R. Shmuel Kamenetzky. This is because Reb Moshe (YD 1:101) is not talking about an agunah where a wife wants to abandon her husband. Rather, Reb Moshe (YD 1:101) is talking about a wife who actually seeks to live in harmony with her husband, but she can't immerse in a mikveh without a cotton ear plug. See my essay on Response To R. Shmuel Kamenetzky | PDF | Philosophy | History which explains this in detail.

   The Gemara, Yoma 86b, requires us to publicize scam artists in order to prevent a profanation of the Name. Indeed, R. Samson Rephael Hirsch comments (on Genesis 27:1) that this is what ethically empowered Rebecca to expose Esau as a scam artist by having Jacob masquerade as him. Now add to that calculation the fact that Rashi to Genesis 26:34 reports that Esau would steal wives from innocent husbands. Hence, on this 40^th yartzeit of Reb Moshe, we as Orthodox Jews must successfuly grasp what Rabbi Feinstein actually paskened and what he did not pasken regarding the agunah problem, so that we can distinguish true agunah experts from scam artists.

    May the light of Torah, so central to the holiday of Purim (as per Megillah 16b), help the bereaved children of R. Nota Zvi Greenblatt [who all pledged allegiance to Reb Moshe in their eulogies for Reb Nota] finally grasp that Ms. Tamar Epstein is indeed the wife of Reb Aharon Friedman according to the Jewish faith, as I have already established at Daas Torah - Issues of Jewish Identity: Response to the Eulogy for Rabbi Nota Zvi Greenblatt by Rabbi Shalom C. Spira . Just last month, on 19 Shevat 5786, R. Menachem Zechariah Zilber's treatise to the same effect was published at HebrewBooks.org Sefer Detail: מקח טעות בקידושין -- זילבער, מנחם זכריה בן רפאל  .

Rabbi Spira works as Editor of Manuscripts and Grants at the Lady Davis Institute for Medical Research [a Pavillion of the Jewish General Hospital] in Montreal, Canada.