"making virtually all marriages easily annullable and such liberalism might destroy the sanctity of marriage - one of Judaism's most cherished values and desiderata. Rabbis and laymen would raise a hue and a cry that marriage bonds in Judaism are made of straw. The stability of marriages would be adversely affected. Instead of being viewed as indestructible, marriages would be regarded as ephemeral. That is why our Rabbis in the past so hesitated to suspend the requirement of a Get. That is why they so formalized the procedure for a Get. That is also why the forbade conditions and the inclusion of capricious agreements in the original marriage contract."
Chapter Three
HALACHIC PROGRESS: RABBI MOSHE
FEINSTEIN'S IGROT MOSHE ON EVEN HA-EZER
I
In contemporary halachic
creativity rabbis are rarely daring. This complaint is often heard whenever
Jews meet to discuss the present plight of Jewish law. It is, therefore, an
event joyously to be hailed when so renowned a scholar as Rabbi Moshe Feinstein
publishes a volume of responsa [Igrot Moshe on Even Ha-ezer NY 1961] which
reveals not only erudition of exceptional breadth and depth but also courage worthy
of a Gadol in an age of unprecedented challenge to our cherished Halachah.
There is abundant authority in
earlier respona of great scholars for all thus far reported from Rabbi
Feinstein's volume. However, he deserves our approbation for reaffirming the
rulings in our contemporary situation when Orthodox rabbis have become so
panicky about liberalism that they have "frozen" the law beyond the
wildest expectations of more saintly forebears. But there is one area in which Rabbi
Feinstein forges ahead of predecessors. He permits husband or wife to remarry
without a Get when there is reasonable assurance that if either had known some
important fact about the other in advance of the marriage they would not have
entered upon the marriage. Rabbi Feinstein has revived the Talmudic notion of
"marriage by mistake," and he does not limit it, as the Tosafists of
the Middle Ages did, to the period intervening between betrothal and consummation
of the nuptials. According to Rabbi Feinstein, the spouse may avail himself or
herself of the fraud or conThere is abundant authority in earlier respona of
great scholars for all thus far reported from Rabbi Feinstein's volume.
However, he deserves our approbation for reaffirming the rulings in our contemporary
situation when Orthodox rabbis have become so panicky about liberalism that they
have "frozen" the law beyond the wildest expectations of more saintly
forebears. But there is one area in which Rabbi Feinstein forges ahead of
predecessors. He permits husband or wife to remarry without a Get when there is
reasonable assurance that if either had known some important fact about the
other in advance of the marriage they would not have entered upon the marriage.
Rabbi Feinstein has revived the Talmudic notion of "marriage by
mistake," and he does not limit it, as the Tosafists of the Middle Ages did,
to the period intervening between betrothal and consummation of the nuptials.
According to Rabbi Feinstein, the spouse may avail himself or herself of the
fraud or concealment at any time after the marriage. Thus a husband may remarry
without a Get if he discovered that his wife could not bear him children
because of an affliction that existed prior to the marriage. Similarly, the
wife may remarry without a Get if she discovers that her husband is incapable
of sexual intercourse or that he was committed to a mental hospital for a
period prior to his marriage and became ill again during the marriage. The
presumption is simple: She would not have married him had she known all the
facts.
What is especially noteworthy
about Feinstein's desire to relieve anguish and pain is his readiness to ignore
prior authorities when their conclusions are antithetical to his. Thus, with
the zeal of a great humanitarian he cites the Ein Yitzhak who permitted a widow
to remarry without Halitzah because he held the marriage of the widow to be a nullity,
but he fails to cite the Shevut Yaakov whom the Ein Yitzhak cites and who
unequivocally arrived at a conclusion opposite to that of Rabbi Feinstein in an
almost identical case. Such is the power of Heterah (leniency) in the hands of
a Talmudic giant! And we thought our generation was altogether bereft of them!
It is also noteworthy that the
eminent Rabbi Weinberg of Montrieux ended one of his responsa, published in Noam,
with a prayer that one day some rabbi will be bold enough to rule as Rabbi
Feinstein has. He lived to see his prayer fulfilled.
III
There is no doubt but that the
liberalization of Jewish family law can best be done through the broader
exercise of the inherent power of a Beth Din to annul marriages for fraud or
mistake. Of course, the consequence will be that the issue of marriages
subsequently annulled will be regarded as born out of wedlock. But in Jewish law
this does not mean illegitimacy-or even serious consequential stigma. Altogether,
to solve the Agunah problem without annulling marriages is impossible. Even in
Israel, where coercion against the recalcitrant spouse is feasible, the court
may be helpless if the recalcitrant spouse is in another jurisdiction or
escapes there before the court's relief is sought. Furthermore, in the event of
the husband's insanity the wife is absolutely without a remedy even in Israel
unless the marriage can be annulled. An insane husband is not competent to
delegate his authority or power to the Beth Din. For these reasons, as well as
others, the abortive attempt of the Conservative movement in the United States
to solve the problem with an eye exclusively on the Get was unfortunate. It
seized upon the least progressive alternative (as did some American Jewish
journalists) and placed in jeopardy the course Rabbi Feinstein is pursuing.
The Talmud assumes in many of its
tractates that marriages by mistake are void or voidable. Indeed, such marriages
can be annulled not only because of facts known to one of the spouses before
the marriage and concealed from the other, but also because of facts that no
one could possibly have known in advance. Thus the Talmud queries why a widow
who is childless cannot annul her marriage to her deceased husband on the
assumption that she would not have consented to wed him had she known in
advance that she would one day require Halitzah.2 [2. The Tosafists would
limit the query to deaths after betrothal but before the consummation of
marriage. Rabbi Feinstein does not make the distinction. ] The answer is that we legally presume
acquiescence on the theory that a woman prefers to be married even to a bad
risk than remain a spinster. Yet this is a presumption as to a state of mind. And
this state of mind is subject to change. Indeed, it has changed in our day.
Most Jewish women today would never acquiesce to marriages which would
ultimately involve them in an Agunah situation because of the husband's
insanity, lack of masculinity, or recalcitrance to give a religious divorce.
These are conditions which often exist potentially in advance of the marriage,
albeit unknown to either spouse in advance. Certainly they are as much
potential facts as is the subsequent death of the husband without children when
Halitzah is required, and but for the presumption with regard to an older
generation of females who preferred any kind of marriage to none, our Sages
would have waived the requirements of Halitzah. Now, however, women feel quite differently.
The lot of the spinster is not as pathetic as it once was and is preferred to
that of the Agunah. The Agunah is far more miserable, and her lot is far less
enviable. Ours is the duty to reckon with the change.
Rabbi Feinstein hesitates to go
so far. He did annul the marriage of a woman whose husband became insane after the
marriage because he had been similarly ill prior to the marriage, and he so
ruled even though the husband appeared sane at the time of the marriage and
thereafter served for two years in the military establishment of the United
States. Nonetheless, the subsequent development of the malady was enough to
warrant annulment of the marriage. Insanity - actual or potential-is sufficient
cause for either spouse not to want the marriage. Incompatibility, however, is
not adequate. Sadism-even sadism in refusing to give a Get--is also not
adequate. Why? We know now that almost all marital problems are due to one neurosis
or another. The neurotic behavior and the circumstances that evoke it cannot be
foretold. Insanity is only an extreme form. Yet if a marriage may be annulled
because a woman does not want to cope with an insane husband, and"
therefore, the presumption that she would prefer a bad marriage to no marriage
no longer holds because the marriage is so bad, then in every case where it
subsequently appears that latent neuroses make it impossible for the spouses to
relate to each other as they should there ought also be a basis for decreeing
that the marriage is annulled because of mistake.
The obvious reply is that if one
adopts this position one is making virtually all marriages easily annullable
and such liberalism might destroy the sanctity of marriage-one of Judaism's
most cherished values and desiderata. Rabbis and laymen would raise a hue and a
cry that marriage bonds in Judaism are made of straw. The stability of marriages
would be adversely affected. Instead of being regarded as indestructible,
marriages would be regarded as ephemeral. That is why our Rabbis in the past so
hesitated to suspend the requirement of a Get. That is why they so formalized
th« procedure for a Get. This is also why they forbade conditions and the
inclusion of capricious agreements in the original marriage contract.
However, there is another
consideration to be reckoned with. The overwhelming majority of marriages will
not be affected. Where the spouses continue to be decent, normal and humane,
the Get is always available. The problem arises principally when one spouse
becomes sadistic, vicious, or vengeful. And when we insist on the Get in such a
case-despite the discovery of indecent, abnormal or inhumane behavior in the intransigent one - are we promoting respect for the sanctity of marriage or
undermining respect for Jewish law altogether? This is the issue. Which end are
we to safeguard? This brings one to a consideration of means and ends in
Halachah generally. Respectfully it is submitted that more Halachic experts of
our day ought ponder this problem.
IV
From a philosophical point of
view, can it ever be said that correct ends do not justify wrong means? It
would appear that there can be no such thing as an ethical objection to the use
of so-called wrong means for correct ends, because nothing can be regarded as
evil except by reference to the ends involved. If we refuse to adopt a course
which we regard as evil--even to achieve a worthy objective--it is because the
means are evil with reference to still another end which ranks higher than the
end for which we are considering the controversial means. […]
Rabbi Weinberg of Montrieux and
Rabbi Feinstein of New York have opened the door. A courageous Beth Din must
now restudy the situation and make choices. The worldwide Jewish community
feels less bound by Halachah than ever before in Jewish history. Bastardy is,
therefore, rifer than ever, and Jewish communal organization with internal
discipline is virtually non-existent. Which is the more important Halachic end
to be pursued in the present situation-the preservation of an ideological
commitment to family holiness which concerns only a few who will not be
affected by liberalism in the annulment of marriages, or to prevent the greater
incidence of bastardy against which there can be no real protection in so
mobile and fluid a society as ours now is?
Needless to say, a minority among
us will scream. But they need not suffer. Nothing will have been imposed upon them
against their will. Jews always had small groups that were especially careful
in matters of Taharah. as well as family background. There need be no
insistence on uniformity or regimentation. Let there be standards of excellence
here as everywhere. However, one must help relieve a situation which begs for
correction. Most Jews will hail the effort. That Gedolim in the past hesitated
to act means only that they mistook the gravity of the situation. They simply
erred. With their rigidity they did not save. This was even true in Europe. In
America conditions have become indescribably worse.
What other alternatives are
there? We can isolate all who are loyal to Halachah from the rest of the
worldwide Jewry, outlaw their intermarriage with the rest of their coreligionists,
and let those who suffer as Agunot because of their commitment to Jewish law
resign themselves to their fate as the will of God. For those to whom these
alternatives are not acceptable, the only available road is that initiated by
two Gedolim. of our day
