Rav Avraham Chaim Sherman :Kaminetsky-Greenblatt heter

הובאו לפני דבריהם של הרבנים הגאונים דייני בית הדין קבוע דבאלטימור שליט"א, ראש ישיבת נר ישראל הרב אהרן פלדמן שליט"א, ראב"ד דמאנסי כבוד הרב שמואל יהודה לייב לאנדסמאן שליט"א אודות המעשה הנורא של התרת אשת איש לעלמא בלא גט רח"ל דבר שפוגע בקדושת הנישואין וקדושת עם ישראל.

מאחר והתרת אשת איש לעלמא בלא גט לא נעשתה ע"י בי"ד חשוב ובלא הסכמתם של גדולי תורה ופסיקה והושתתה על הפקעת קידושין בלא גט מכח מקח טעות.

חובה להקים בי"ד חשוב של דיינים מומחים, ובדחיפות שיזמינו את האיש והאשה ????? (אולי וזאת?) ע"מ לאפרושי מאיסורים חמורים, ושמירה על קדושת הנשואין וקדושת עם ישראל.

באתי על החתום להיות שותף לפסיקתם ומחאתם של גדולי התורה והפסיקה, <חתימה>

Chazon Ish: Understanding of Jewish thought and Agada requires knowledge of halacha

אמונה ובטחון

השלמה לפרק ג'   כח

אלה שלא זכו לאור הגמ' בהלכה המה משוללים גס מאגדה באפי' האמיתי כי בהיותו חסר לב חכמהו אי אפשר לו לקנות מושגים שמימים אמיתים, גם אינן מסוגל ללימודים מישרים ומה שהזכירו בגמ' בעלי אגדה היינו חכמים בהלכה שהוסיפו עיונם גם באגדה אבל לא יתכן להיות ריק מהלכה ולהיות בעל אגדה, ויתכן אנשים שעסקם בהגיונות בני אדם כעין פילוסופי' ריקנית פעם במדות פעם בקורות הדורות ועוד כיוצא בהם ומשתדלים לקבוע הגות לבם במסגרות התורה, ויתכן שיצליחו למשוך לב השומעים ולהנעים זמירות באזני המקשיבים, ואמנם אלה אין להם חלק בתורה לא בהלכה רלא באגדה כי כיסוד ההלכה יסוד ההגדה, אין הגדה הגיון לב. ההגדה היא חלק התורה שקיבלנוה דור אחר דור אשר מסרה משה ליהושע ויהושע לזקנים וכדתנן באבות ולהיות בעל הגדה החובה להיות בקי במקרא בתורה בנביאים וכתובים, להיות בקי בכל אגדות שנאמרו בגמ' בקיאות נאמנה להיות בקי במדרש בקיאות שנונה ומסודרת, ואחר כך לשאת ולתת בה בהבנת המסקנות שבהם. וכמו שלא יתכן חכם בהלכה בלא קנין הבקיאות המרובה, ואמנם אלה החפצים בהתגלות לבם מורגלים בידיעות מקוטעות קטע מכאן וקטע משם עד שנאסף בידם ילקוט של מאמרים ספורים המשמשים בם לברוא הרצאות להשמיע לרבים (ומהם מופלגים בבורות וריקנות אינם יודעים לתרגם התורה נו"כ אינם יודעים את הכתוב בראשונים ידיעה מספקת, ומהם שלא למדו כלל תנ"ך ואינם מבינים ללמוד אגדה בבמ' ברוב מקומות הש"ס) ובכל זאת המה מחנכים לצעירי הצאן, ומטיפים לקח במידות ומוסר ולפעמים גם במדע ומתק שפתים ) ואם אמנם המה גורמים לעתים להטות לב הרכים ליראה ולמוסר, ולבנו רוחש להם כבוד והערצה על מעשיהם הטובים, אבל אין שמחתנו שלמה בהם כי סוף סוף חסר לנו תורה ויש כאן עניות דתורה, ויצירתם בלתי מתוקנת בהחלט, וכמו שכתוב בפרקים הקודמים, אם אין תורה אין חכמה אין עצה ואין תבונה.

Prenuptial Agreement:Rabbi Shalom Spira proposed correction to RCA resolution

Be-chasdei Ha-Kadosh Barukh Hu, Yishtabach Shemo


Shalom Aleikhem Ha-Rav ha-Ga'on R. Daniel Eidensohn, shlit"a, Bishvilo Nivra ha-Olam, u-Mimenu Ein Raz Ne'elam,

I think that Kevod Torato ha-Rav will appreciate this letter I sent to the President of the RCA two months ago regarding how to rectify the RCA prenuptial agreement.

Todah rabbah ve-khol tuv,

Shalom Spira
Montreal, Canada

---

From: Shalom Chaim Spira
Sent: November 24, 2015 16:38
To: rabbibaum@ketertorah.org
Subject: RCA Resolution entitled `ORA; Kayama; and, Illegal Halachic Relationships`

Be-chasdei Ha-Kadosh Barukh Hu, Yishtabach Shemo

Shalom Aleikhem R. Shalom Baum, shlit"a, Nassi shel Histadrut ha-Rabbanim de-America, Yehi Noam Ha-Shem Alav, ve-Al Kol ha-Nilvim Elav,

Congratulations to Kevod Torato ha-Rav upon his appointment as President of the RCA. 

With the kind permission of Kevod Torato ha-Rav, I would like to respond to the recent RCA resolution entitled  `ORA; Kayama; and, Illegal Halachic Relationships`, available here: http://www.rabbis.org/news/article.cfm?id=105834

The resolution calls upon every RCA member to utilize the prenuptial agreement available at <theprenup.org> for every wedding where he is mesader kiddushin. However, what the talmidei chakhamim who voted in favour of this resolution may not have realized is that R. Moshe Sternbuch recently wrote a responsum disqualifying this very same prenuptial agreement. The responsum is available at https://www.scribd.com/doc/273292099/Rav-Moshe-Sternbuch-condemns-prenuptial-agreements?secret_password=tfA9agf8H8M7dDE9Hk4N. R. Sternbuch`s responsum vindicates Section A of my prenuptial agreement essay at http://www.scribd.com/doc/176990434/Prenuptial-Agreements , which reached the same conclusion prior to R. Sternbuch (based, as my essay is, on R. J. David Bleich, Be-Netivot ha-Halakhah Vol. 1, the latter having been published two decades ago).

Of interest to Kevod Torato ha-Rav will be that my prenuptial agreement essay (which diamond-polishes R. Jacob Kamenetzky`s proposal how to rescue agunot; R. Kamenetzky having been presented with the original idea by his disciple R. J. David Bleich) was even more recently publicized in the Canadian Jewish News (Nov. 12, 2015; p. 32) in honour of Parashat Toldot, a scan of which is presently enclosed. 

Given these developments, I hope that Kevod Torato ha-Rav will encourage the RCA to reformulate its resolution to call upon every RCA member to abandon the (well-meaning albeit unfortunately disqualified) prenuptial agreement at <theprenup.org>  and to instead employ the kosher prenuptial agreement presented by my essay.

I thank Kevod Torato ha-Rav for his kindness in receiving my recommendation.

Todah rabbah ve-khol tuv,

Shalom Spira

Montreal, Canada

Jeremy Stern - I quit my shul when the rabbi came out against prenuptial agreements

Time of Israel

Two weeks ago, I rescinded my shul membership. The rabbi had made a public statement against the use of halachic prenuptial agreements. For me, he crossed a red line. I cannot identify with an institution whose religious leader opposes rectifying one of the worst desecrations of G-d’s name that currently plagues the Orthodox community. 

Get recalcitrance is not only a violation of Jewish law, but a form of domestic abuse in and of itself. Domestic abuse is not just about black-and-blue marks, but about a repeated assertion of power and control from one spouse over the other. That is precisely what goes on when an estranged husband vindictively and sadistically refuses to issue a get long after the marriage has proven to be irreconcilable. 

We cannot stand idly by while such abuse is perpetrated in our midst, and we cannot simply point fingers at others — rabbis in particular — to “fix” the problem. Simple solutions are rarely the cures for complex problems, and the agunah crisis is no exception. However, while a comprehensive solution to the agunah crisis may be beyond our grasp, there is one solution which has been extremely effective in preventing this problem going forward, and it is in our hands to implement: the halachic prenuptial agreement.

At the end of the day, we choose our rabbis, our rabbis don’t choose us. We hire our shul rabbis. We are the ones who vote them in and sign their contracts. It is up to us to make this a red-line issue. We must hire rabbis who will not only encourage the use of halachic prenups throughout the community, but insist upon their use whenever they officiate. [...]

R Shlomo Rechnitz speaking out about children rejected by Lakewood schools

Beshalach; Was The Land Of "Moav" Originally For The Jews By Rabbi Shlomo Pollak

At the end of the Bris Bein HaBesorim (בראשית טו, יח-כא) , Avrohom Aveinu was promised the land of 10 nations, including קיני קנזי & קדמני, which Rashi there explains is אדום עמון ומואב......

"ביום ההוא כרת ה' את אברם ברית לאמר לזרעך נתתי את הארץ הזאת מנהר מצרים עד הנהר הגדל נהר פרת. את הקיני ואת הקנזי ואת הקדמני. ואת החתי ואת הפרזי ואת הרפאים. ואת האמרי ואת הכנעני ואת הגרגשי ואת היבוסי"

We, of course, only  got the 7 lands, and Rashi explains the other three we will get לעתיד לבא......

There is, however, an apparent contradiction in the words of Rashi himself, if that was the original plan, or if we lost those three, after the  חטא מרגלים.......

For questions and comments please email salmahshleima@gmail.com

Rabbi Brodksy strongly criticizes Rav Moshe Sternbuch for calling for public protests against gedolim (i.e. Rabbi Kaminetsky) regarding the heter

 update: added audo recording
Rabbi Brodsky - a rosh yeshiva in Toronto - expresses the view of many rabbis that one can not publicly criticize gedolim and he says Rav Sternbuch's words should be ripped up and thrown away. The layman should not talk about the issue at all since it is being handled properly by rabbis behind closed doors. In contrast Rav Sternbuch has clearly and strongly stated that it is the obligation of every Jew to protest against this corruption of halacha.

The fact that Rav Shmuel Kaminetsky has not rejected the heter for adultery and that Rav Nota Greenblatt has not publicly acknowledged that the heter for adultery he gave is invalid - deserves criticism - as the Rambam (Hilchos De'os 6:8) has clearly stated. It is not as if this is a complex halachic problem. They simple continue to refuse to acknowledge the obvious - that they have made a serious mistake in giving a heter for adultery - and need to publicly acknowledge it

audio recording January 16 2016

Tefillos for a refuah sheleima for Rav Chaim Yisroel Belsky

Rav Yisroel Belsky is a brilliant talmid chochom, treasured rosh yeshiva, tzadik and poseik.   He is hospitalized in very serious condition and is desperately in need of our tefillos.   Please daven for him besoch shar cholei yisroel for a refuah sheleimah b’mheirah.

Hespeidim Thursday night at 9 p.m. for Rav Refoel Shmulewitz zt"l

Jerry Finkelman wrote

There will be a live audio-hookup of the "Hespeidim" tonight (Thursday) following the petira of Rosh Yeshivas Mir, Moron Hagaon Rav Refoel Shmulewitz zt"l, which will iy"h take place at the Yeshiva Gedolah of Toronto.

To connect to this live broadcast,

Dial-In number: 605-562-3107

Participant access code: 941091#

The broadcast will begin at 9:00pm

Beshalach 76 - Questions and Discovery lead to Song and Faith by Allan Katz

Guest Post Allan Katz

The climax of the Exodus from Egypt was the splitting of the Red Sea and the prophetic song at the sea – shirat ha'yam which the Israelites sang expressing gratitude, trust and total belief in God- Hashem. The midrash notes that no one before ,had broken out in song when saved by a miracle performed by God and now since the singing of the song , God's presence in the world had become more established. So what was different about the miracle of the splitting of the Red sea? Miracles in the past, like those performed for Abraham and the Israelites in Egypt were performed to save people or get them out of trouble. The splitting of the Red sea was different. The route taken out of Egypt most probably raised many questions. There was a shorter route - the route they came to Egypt, which also meant that they did not have to cross the Red Sea. After travelling 3 days and reaching Succot , they back-tracked and started moving in the direction of Egypt . This encouraged Pharaoh and his army to pursue the Israelites as they seemed to be now trapped between the Sea, wilderness and an army going after them.

It seemed that God was putting them into trouble so that He could perform a miracle which would glorify and sanctify His Name in the world. Previously, miracles were performed to get people out of trouble, now God put the Israelites into trouble so that He could perform a miracle. After the witnessing and experiencing the miracle at the sea, the Israelites gained a flash of insight, a deep understanding of how God conducts the world, how all apparently unrelated and contradictory phenomena meld into a coherent, merciful, comprehensible whole. They saw and heard how every note, instrument and participant in the symphony of creation plays its role and the result is song. The Israelites came to the realization that their purpose in the world and the purpose of the creation was to create a partnership with God in order to glorify and sanctify His name by the way they live their lives in this world. At the sea the suffering of the Egyptian exile, their hopelessness and helplessness when surrounded by Pharaoh, the sea and the wilderness and the deception that led Pharaoh to pursue them took on a new meaning as being part of the Divine plan.

When one has unanswered questions and doubts and then one expereiences a flash of insight and deep understanding about one's purpose and relevance in the world, it not only touches the mind but also the heart and soul. When the understanding is both intellectual, intuitive and comes from revelation and discovery, the knowledge is understood also in an emotional way. And this leads to faith –emunah and deep trust in God.

The process of discovery and not telling, leads to both intellectual and emotional understanding. This cornerstone of authentic education is played out again in our parasha with the miracle of the 'manna from heaven '. The manna was covered with a layer of dew and did not become noticeable until the sun melted the upper layer of dew, whereupon people saw something of the likes that they had never seen before. Their reaction was one of surprise – ' mun hoo ' what is it ? and they guessed that it was some type of food. Moses informed them that it was indeed food that they would receive every day except for the Sabbath.

'Education is not a filing of the pail, but lighting the fire of learning' – Yeats and that is how the Torah instructs parents and teachers to transmit the message of the Exodus from Egypt. We do this by creating an environment that promotes discovery, curiosity and the asking of questions. The questions of the 4 sons from the Pesach seider are examples how learning and discussion is driven the curiosity and questions of children. And we can help them by sharing our questions and focusing on even deeper questions and the ideas and values behind them.

Things today are going terribly wrong with pre-school education with the focus more on academic readiness like reading, writing and arithmetic at the expense of intellectual skills.' “Young children enter the classroom with lively minds–with innate intellectual dispositions toward making sense of their own experience, toward reasoning, predicting, analyzing, questioning and learning,” says Dr. Lilian Katz. “But in our attempt to quantify and verify children’s learning, we impose premature formal instruction on kids at the expense of cultivating their true intellectual capabilities – and ultimately their optimal learning.” In this respect we can learn from the Finns, who don’t begin formal reading instruction until around age 7, have to say about preparing preschoolers to read: “The basis for the beginnings of literacy is that children have heard and listened … They have spoken and been spoken to, people have discussed [things] with them … They have asked questions and received answers.” It is all about relationship and conversation – encouraging young children to use and hear complex language , paying close attention to their thought processes and finding ways to make children think aloud. Preschool years should be not just on vocabulary and reading, but on talking and listening.

The Torah is also referred to as a song – 'write down this song for you'. A song is not only an expression of gratitude and joy but an expression of faith and trust. If we want the Torah to be a song for ourselves and our children, our learning and living should be focused on discovery and making meaning in our lives, being of service to man and serving God. The focus for kids should be on what they are learning and doing and not on how well they are learning and doing.

Kaminetsky-Greenblatt Heter: CLARITY; REAL ISSUES, SEMI-ISSUES AND NON-ISSUES

This is a guest post from someone I respect. However in this case I think he has missed the boat because he is basically saying the scandal is simply a machlokes haposkim. But in fact there is no halachic dispute - there are no poskim who think this is a valid heter.

The fight is over whether this is a public issue where everyone is invited to protest a major scandal or whether it should be left for the rabbonim to clean up this disgusting mess behind closed doors and the rest of us should act as if nothing happened.

===========================================

Guest Post

I am a layman, with no connection to any of the parties, and I think we have reached the level of semi-mass hysteria. Professionally, I am an analyst, so I analyzed. My analysis turned up 12 possible issues. I rate them as follows; five are Non-Issues, two are Semi-Issues and five are Real-Issues, with the most important (the last one) possibly having the most impact, and being a result only of this semi-mass hysteria. So, Read On, and BE CALM

1. Using Rav Moshe’s Heter

NON-ISSUE; Each posek has a mesorah and his own ability to rely on the great poskim. If a posek is relying on a great posek’s psak (Psak A), another great posek can disagree with the original psak, but that doesn’t change any posek’s ability to rely on Psak A, especially if that is his mesorah, and especially if that great posek was his Rebbe.

2. Rav Shmuel Shlit”a and Rav Sholom Shlit”a Trying to help their Constituent

NON-ISSUE; Any person that has a halachic issue or another problem, should turn to those rabbanim with whom they have a relationship to ask for help. Thousands of people turn to the Rabbonim and Roshei Yeshiva they know every day.

3. Asking Other Poskim to join In The Heter (“Shopping Around”)

NON-ISSUE; This is a very old time-honored practice. If a Rav/Poseik is asked to pasken on a difficult shaila, he often would say, I would pasken this way, but only if other Poskim join in the psak. This is especially true in serious, complicated questions such as agunah, gittin, etc.

This often would entail discussing the Halachic issues with many poskim until some/enough agreed to the psak.

4. Relying On Professionals for Diagnosis

NON-ISSUE; Many situations in psak rely on professionals for their opinions. The poskim are not doctors, surgeons, engineers, physicists, etc. They need the professionals to explain the actuality of the situation, and then the posek can apply the appropriate Halacha. Once someone is established as a true professional, his description of the reality is usually relied on. And yes, there are differences of opinion, which the posek has to then deal with as well.

5. Paying for Professional Opinions.

NON-ISSUE; When professionals are asked for their professional opinion, be it for a second consultation for a diagnosis, or an expert opinion in a court, they are paid for their time.

6. How Did The Doctor Arrive At His Diagnosis?

REAL ISSUE: Can such a diagnosis be made without meeting the person being diagnosed? This issue is for professionals in the field of psychiatry/psychology to determine. Not for us layman, nor rabbis, nor avid internet connoisseurs, who know nothing about the field. And a few prominent people in the field who have an opinion, even if makes sense to us layman, does not yet tell us if their opinion is broadly accepted, or is a minority opinion.

7. Can We Rely On Psychiatry/Psychology To Determine A True Reality?

REAL ISSUE: Some areas of wisdom and knowledge are solidly based on facts, others are based on fact and educated guess. Many diagnoses in medicine are the latter, whereas many in electrical engineering are the former. In general, the greater the professional, the more his opinion/educated guess will count. Psychiatry/psychology fall into the second category, with wide differing opinions as to what percent are facts and what percent are educated guesses.

This is a very important issue because we know/see/hear of psychiatrists/psychologists diagnosing/treating/pontificating about our friends, relatives and our frum society. If their knowledge is more of educated guess, with less fact, should we be putting so much trust in them?

Only people intimately knowledgeable about these fields can guide us. We layman, rabbis, and avid internet connoisseurs, who know nothing about this field – our opinions are totally worthless.

8. How Do We Know The Diagnosis Was True At The Time Of The Wedding?

REAL ISSUE: In order to be a Mekach Taus, the problem has to be present at the time of the purchase/wedding. How did the professional know that? (See #9)

9. Why Wasn’t The Husband Given The Opportunity To Rebut?

REAL ISSUE: To me, the total layman, this seems like an excellent question. However, if I posed the question to the doctor who made the diagnosis, he might well have answered me - and calmed me - by saying, “This is such an obvious case, there is no need to talk to the patient.” And I, most likely, would bow to his well-deserved knowledgeable and professional opinion. Did the Rabbonim do just that

10. Why Wasn’t The Original Beis Din In Baltimore Involved?

SEMI- ISSUE: As far as I understand, they have the only “official” jurisdiction. However, since so much time had elapsed, and so many others were involved, it might have been the prudent thing to go in a different direction, even if not technically correct

11. Why Aren’t The Other Poskim That Agreed With The Heter In The Public’s Eye?

SEMI-ISSUE: It seems that there were other poskim involved, so, if there has to be a public debate, why aren’t they also involved? (See #12)

12. Private Or Public Matter?

REAL ISSUE; As we have seen, there are some real Halachic issues in this case. What should happen is that some rabbonim/gedolim should write a complete Teshuva about it, clarifying their disagreement (as some have), and then the poskim that did pasken, should write a rebuttal Teshuva, as has happened thousands of times in Torah history. A posek wouldn’t necessarily have to answer, but that would be the usual historical case

There is a large and significant difference between then and now. We are all aware of how in the past, historically, there were situations that went from Halachic differences between poskim, to open animosity and Sinas Chinom between communities, with far reaching negative consequences. Those were often caused by a few people who were not poskim, who made the weight of their opinions count.

Today, with internet access, everyone has an opinion, and everyone states their opinion so strongly, so forcefully and seemingly cogently, that public opinion is often easily swayed. Does a posek or Rav or any leader have to have all his actions judged by everyone? Does he have to answer to everyone? If, in this case, he answers and explains his Halachic opinion, will it then be another accepted machlokes between poskim? Will that be enough to end this? Will that calm the masses?

To put it another way, is this truly a “Machlokes L’Shaim Shomayim,” and therefore a halachic answer clarifying their position will be accepted as a true psak, even if not agreed with? Or is it mixed with “Shelo Le’Shaim Shomayim,” and nothing will be accepted except a total declaration of defeat?

A way to partially determine this is to look at the way people speak. Are Rabbonim, Roshei Yeshiva and Gedolim always being spoken of in ways of total respect? Even if one strongly disagrees, they should be disagreeing with the psak, not with the person, and total kavod should be the norm. This would be true if it is only a “Machlokes L’Shaim Shomayim.” By the often serious lack of kavod in these discussions, it sadly seems that mixed in is “Shelo Le’Shaim Shomayim” and therefore only total capitulation to the masses will suffice.

If that seems to be true, then any thoughtful posek would retreat into the safety of silence, depriving the Torah community from the free exchange of Torah ideas. If so, we have arrived at a sad state of affairs, and makes any situation like this infinitely more difficult to resolve.

Perhaps we should all back off, keep our opinions to ourselves, show true proper kavod, and create a free, open space where the poskim can continue to fight the Milchamta Shel Torah purely L’Shem Shamayim.

Rav Eitam Henkin hy"d, in response to an article about anulling marriage through mekach ta'us.

  Rav Eitam Henkin Kiddushei Ta'Us

===============================================
Rav Bass' response to Rav Henkin

   -- תחומין -- תגובת הרב בס by 

AJOP:Convention Get your private meeting with Rav Shmuel Kaminetsky - What would you like to discuss?

Update

Dear Chaverim,

After difficult deliberations and very careful consideration we have made a prudent decision in the interest of safety for all our participants to reschedule the AJOP Convention for the following weekend,January 31 - February 2, 2016.  

WE WILL HAVE A CONVENTION IY"H NEXT WEEK.

This decision was reached based on the impending blizzard throughout the Mid-Atlantic and Northeastern United States. Winter Storm Jonas is expected to hit Friday night, and continue through Sunday morning, with a total expected accumulation of 24"-30" of snow.

Dr. Marc Shapiro The Agunah Problem, Part 1; Incarceration and Free Speech- Aguna only if husband refuses to give Get after ordered by Beis Din

This is an important scholarly article and clearly indicates that much of the debate today about aguna revolves around whether one is guided primarily by halacha or by current societal values

Seforim Blog  

[...]

As for the problem of women not being able to get a divorce because the man refuses, there are some important points that must be made which I don’t think everyone is aware of. Today, many people assume that a woman who wants out of a marriage, for whatever reason, has that right. After all, a woman is not a prisoner and a husband should not force her to be married to him if she doesn’t want to. However, this viewpoint is very much a modern approach.[6] If you look at the standard halakhic sources you will find that there is no obligation for a man to give his wife a divorce just because she wants it. Ever since R. Gershom, the same situation is also found in reverse, namely, a husband is not allowed to divorce his wife against her will just because he no longer wishes to be married to her. This approach to ending marriage is very much in line with how secular society use to operate before the introduction of no fault divorce.

Significantly, Maimonides does require the husband to give his wife a divorce if she says she no longer wishes to live with him.[7] R. Kafih elaborates on the wisdom of Maimonides’ position, and here are some of his important words[8]: [...]

However, it is the view in opposition to Maimonides that became the standard position, and it is this view that is recorded in the Shulhan Arukh[9] and followed by batei din. According to this approach, even if a woman says she can no longer live with her husband, he is not obligated to give her a get. What this can lead to is most vividly illustrated by the movie Gett, available here to watch for free for Amazon Prime members.

I have been told that the Beth Din of America operates on the principle that if one of the parties wants a divorce, for whatever reason, and there is no chance for reconciliation, then the Beit Din will instruct the other spouse to comply. But this is not how many other batei din operate. We have to be honest and acknowledge that the problem many women face is not because the dayanim are cruel or anti-women, but that it is Jewish law itself, or rather an interpretation of Jewish law, that is preventing them from receiving their divorces.

I feel it is necessary to stress this since we can now better appreciate why certain rabbis have attempted to find solutions within Jewish law to the contemporary agunah problem. Many on the right don’t see why this is necessary and why batei din cannot just follow Jewish law as it has operated until now instead of looking for “solutions”. These people might not realize the difficult situation this puts women in, a situation that might have been tolerable years ago but for more and more Orthodox Jews that is no longer the case. On the other hand, many on the left think that it is a simple matter to solve the agunah problem, and that it is just cruel and insensitive rabbis preventing this. This too is a distortion as the rabbis’ hands are often tied by halakhah, and this remains the case no matter how much of a “rabbinic will” they have.

Let me illustrate what I am talking about. As an example of how sentiments have changed over the centuries, here is a passage from R. Hayyim Benveniste that I have cited in two previous posts. In Keneset ha-Gedolah, Even ha-Ezer 154, Hagahot Beit Yosef no. 59, in discussing when we can force a husband to give a divorce, R. Benveniste writes:

ובעל משפט צדק ח"א סי' נ"ט כתב דאפי' רודף אחריה בסכין להכותה אין כופין אותו לגרש ואפי' לו' לו שחייב להוציא

Can anyone imagine a posek, from even the most right-wing community, advocating such a viewpoint today? The logic behind this position, as can be seen by examining the original responsum in Mishpat Tzedek, is that even if the man is running after her with the knife, we don’t assume that he will actually kill her. He must be doing it just to scare her, and that is not enough of a reason to force him to divorce her, or even to tell him that he is obligated to do so. And if we are wrong, and he really does kill her? I guess the reply would be that this isn’t anything we could have anticipated even if we saw the knife in his hand. This example shows how some poskim from prior generations made it extremely difficult for women to receive a divorce.

Let me give a few examples from more recent years. In 1967 the Supreme Rabbinic Court, consisting of Rabbis Yitzhak Nissim, Betzalel Zolty, and Yosef Shalom Elyashiv, concluded as follows.[10]

 

כשם שאין כופין בעל לגרש את אשתו בגלל טענת מאיס עלי, כך אין מחייבין את הבעל לגרש עקב טענה זו

This approach, which repeats itself again and again, completely undermines the assumption so many have that a man is obligated to give his wife a get when she no longer wishes to be married to him.

Look again at the conclusion of Rabbis Nissim, Zolty and Elyashiv. It couldn’t be any clearer that this woman is not an agunah. Their conclusion also contradicts the definition of agunah provided by JOFA (see here p. 22).

AGUNAH (pl: AGUNOT) A married woman who may not remarry because the death of her husband has not been verified or because (for whatever reason) she is unable to obtain a get from her husband.

It is simply not true that a woman unable to obtain a get from her husband “for whatever reason” is an agunah. I wish it were different, and I wish Maimonides’ ruling carried the day. But that is not the case, which means that an agunah has to be defined as one whose husband refuses to issue a get after ordered to do so by a beit din. [...]

For another noteworthy example, here is the conclusion of a 1953 Jerusalem Beit Din decision, by the dayanim R. Jacob Ades, R. Bezalel Zolty, and R. Yosef Shalom Elyashiv:[13]

החשש כי האשה תצא לתרבות רעה אם הבעל לא יתן לה גט, אינו משמש יסוד לחייב את הבעל לתת לה גט

This decision from the Jerusalem Beit Din has another passage that is very troubling to me. I find it hard to believe that any Modern Orthodox beit din could conclude in this fashion, and it is precisely attitudes such as this that convinced women that the rabbinic courts in Israel were stacked against them.[14]

הא דברועה זונות יש לחייבו לתת לה גט, היינו היכא שהאשה היתה רוצה לחיות אתו, אלמלא שהבעל הוא רועה זונות, במקרה זה יש מקום לחייבו לגרשה כשהיא דורשת גט, משום שרועה זונות יאבד הון וסופו לא יהיה בידו לפרנסה, וגם משום שעצם היותו רועה זונות נוגע לה שהוא גורע מעונתה, וגם יש חשש של סכנה לחיות אתו, אבל במקרה שהאשה מורדת בבעלה ולא רוצה לחיות אתו בגלל איזו סבה שהיא, ואחרי זה נהיה הבעל רועה זונות אף שיש עבירה בידו, מכל מקום אין לחייבו משום זה לתת לה גט, כיון שהיא מורדת בו הרי הוא פטור ממזונותיה ושוב אין החשש שרועה זונות יאבד הון ולא יהיה בידו לפרנסה, וגם אין הטעם שברועה זונות הדבר נוגע לה שהוא גורע מעונתה וגם יש חשש סכנה לחיות אתו, דהלא היא מורדת בו ולא רוצה בכלל לחיות אתו.

 What is a woman supposed to do in a case like this? After learning that her husband frequented prostitutes she had even more reason not to want to return to him, and yet the beit din held that in such a case the husband did not have to give her a get since her initial reason for wanting to be divorced was something else. Again we see that a man can, if he chooses, prevent his wife from being free.[...]

I think people will be shocked to learn that a woman who wants to divorce her husband because he went to a prostitute is being told by the beit din that she must stay with him if he promises not to do it again. But this only illustrates that the so-called agunah problem is inherent to the halakhic system, which according to the dominant interpretation does not recognize that a woman should be able to exit a marriage if she feels she can no longer live with her husband. There are literally hundreds of examples in the responsa literature and beit din proceedings where a woman is told that even though she wants to be divorced, there is no obligation on her husband to give her a get. Isn’t this where poskim must put their efforts to see if changes can be made? What a woman will tolerate today is not necessarily the same thing as what the Sages and earlier poskim assumed, and this is a point that was already made by halakhic authorities in prior generations.[19]

To further illustrate my point, R. Joseph Karo states that even if a husband is beating his wife he can’t be forced to divorce her.[20] She will obviously live apart from him, but R. Karo does not accept the view of some earlier authorities that the husband can be forced to issue her a divorce. This means that the woman is what we would today call an agunah, but the problem we are facing is not just about an evil man but arises from the halakhah itself. As we have just seen, according to R. Karo it is the halakhah that prevents us from forcing a husband to divorce his wife, even if he beats her.

In this case, R. Moses Isserles strongly rejects R. Karo’s opinion and states that we can force a man beating his wife to divorce her.[21] The passage I have underlined is of particular significance regarding the point I made previously.[22]

ואיני רואה בזב דבריו כלל דכדאי הם הגאונים לסמוך עליהם כל שכן שהרמב"ן ומהר"מ הסכימו בתשובותיהן בענין הכאת אשתו והביאו ראיות ברורות לדבריהם גם הסברא מסכמת עמהן ומה שלא הוזכרו בדברי הפוסקים אפשר לומר שהיה פשוט בעיניהם וקל וחומר הוא מהאומר איני זן וכו'

R. Weinberg was asked about a man who was sent to jail for sexual abuse of young girls. Understandably, his wife wanted a divorce. The rabbi didn’t know what to do and therefore wrote to R. Weinberg. He mentions that he never had to deal with a case of sexual abuse and doesn't know how to relate to it from a Jewish law perspective. He also assumes that there was no actual sexual relations but only fondling.

R. Weinberg, relying on the Hakham Zvi, states that the husband cannot be forced to divorce his wife, since he was never warned and there was no testimony in a beit din. He also says that one cannot rely on testimony given in a secular court, and makes the valid point that during that time, the Nazi era, there was a great deal of anti-Semitism and pleasure in making the Jews look bad.

None of this could have been of much comfort to the woman. We have no idea about her relationship with her husband. She might have already suspected him of being a pervert, or when he was arrested it might have clarified certain things that she wondered about. She might have confronted him after the arrest and seeing his reaction to her questions she knew he was guilty. Whatever the case, she no longer wished to remain married to someone she believed to be a sexual abuser. R. Weinberg was as open-minded a posek as one could imagine, yet even he was of the opinion that the husband could not be compelled to divorce his wife.

Today, if someone accused of sexual abuse refused to issue his wife a get, rabbis in the United States would call for protests in front of his house. Yet R. Weinberg does not see this as warranted. I think one of the most difficult things for people to grasp in his responsum, and in that of the Hakham Zvi, is the need for the husband to be warned. We are not talking about sentencing him in a beit din, where warning is a technical requirement, but whether or not the woman wants to live with him any more. In the two cases we have just seen, the issues of concern to the wives are one man’s visits to a prostitute and the other’s sexual abuse of children. Neither wife cared if her husband was “warned” in beit din since the offense is the same to her either before or after the “warning”. [...]