Calling get-refusal a tort: Direct confrontation between religious values and secular ones

This is an interesting article from Susan Weiss about using secular tort law to "solve" the Aguna problem. It shows the inherent conflict between secular and religious thought in this matter.  "Susan Weiss is the founder and executive director of the Center for Women’s Justice and a doctoral candidate at Tel Aviv University in sociology and anthropology. She initiated the tort cases described in this paper."

The following are the last two pages. Click the link to read the whole thing.

http://www.brandeis.edu/hbi/gcrl/images/SusanWeissWP.pdf

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Dialogues:

Calling get-refusal a tort provokes a direct confrontation between religious values and modern ones. Get-refusal is about male dominion over women. Equal power to sue for divorce is about liberty, autonomy, and equality for women. It is a modern notion. The tort of get-refusal forces the rabbinical court to confront modernity and to conduct a dialogue, whether they want to or not, with women..

It was, and remains, the hope of Israeli cause lawyers that this dialogue and confrontation would yield a transformative response from the rabbinic court and religious communities that will untie the knots between gender, equality, and Jewish divorce law. 

Various transformative response are imaginable, some more radical than other, all of which are

possible: (1) The rabbinic courts could embrace the tort of get-refusal as a way to help

them resolve difficult cases. Theoretically at least, the rabbis could encourage women to

sue for damages in the civil court as a way of warning husbands against recalcitrance. (2)

Rabbinic leaders might be encouraged to find internal systemic halakhic solutions to the

problem of religious divorce; (3) Alternative Israeli Orthodox rabbis could break with

existing rabbinic judges to form more modern rabbinic courts; and (4) An increasing rift

may develop between the secular and religious courts that would pave the way for the

legislation of secular marriage and divorce in Israel..

Rabbinic Supreme Court Responds to Tort Claims: March 11, 2008:

Despite the effectiveness of the tort law in solving long-standing cases in the rabbinic court (not to mention doing justice), the Israeli rabbinic courts have not embraced tort as a solution, or as a way of ameliorating, the problem of get-refusal. On the contrary. As more and more women have been suing for damages for get-refusal, the rabbinic court has been expressing more and more opposition to those cases on religious grounds, arguing that these case violate the rule against the forced divorce (get meuseh). The rabbis claim that husbands who give the get after they’ve been sued in tort, are not giving the divorce freely, but in response to the tort cases.

 

On March 11, 2008, the Supreme Rabbinic Court (file 7041-21-1)issued a 26 page decision (all obiter dictum) in which it held as follows:

All petitions filed outside the rabbinic court – like petitions to civil courts for damages — that relate to get refusal, whose practical consequence is to acceleratethe delivery of the get, are an interference with the laws of the Torah regardingdivorce, and effectively preclude the possibility of the execution of a [kosher] get…

Attorneys who deal in family law should be advised to weigh carefully their recommendations to clients to file damage claims in the family court for getrefusal. Such recommendations are tantamount to malpractice, and I doubt that attorneys could avoid such claims [of malpractice], even it if they were to sign their clients on waivers to that affect. It can be assumed that clients are not aware, and cannot possibly foresee, what serious consequences and delays can occur inthe delivery of the get , even after the husband has agreed to give the get, if the husband's agreement [to give the get] was given subsequent to a petition for  damages for get-refusal (J. Algrabli).

In short, the rabbinic court declared in no uncertain terms that it would not yield to outside attempts to reform its failings and wielded, once again, the immutable rule against the "forced divorce"(get meuseh), thus re-winding the knot of religion that had for a moment loosened.

In Conclusion

The tort of get-refusal is delineating, distinguishing, demystifying; and defrocking the knots that bind gender, equality, and Jewish divorce law. The tort has prompted an important dialogue in the Israeli courts between modernity and tradition, between liberal principles and religious values. It remains to be seen how that dialogue will play itself out and if the knots that bind Israeli Jewish women unremittingly to their husbands will somehow be undone. It could be that women will lose patience in their attempt to unravel these knots and will simply cut them in order to escape entanglement

Open Orthodox Theology and Repentance

Times of Israel    by Rabbi Avrohom Gordimer

Sometimes, things are just so outrageous that we need to do a double-take, as we cannot believe what we are seeing. And sometimes, these outrageous things are repeated and form a pattern, shocking us all the more so.

Sadly, recent writings by the leadership of Open Orthodoxy have fit this mold. While I was hoping to start the new year without having to address this issue, wishing that the numerous expressions of highly problematic theology by Open Orthodox leadership would taper off, matters have gone from bad to worse, and there is again an obligation to speak out.

Although one Open Orthodox leader has portrayed these protest writings as personal attacks against him, nothing could be further from the truth. Those of us who speak out in dissent are critiquing the controversial theology and not the personalities involved. Furthermore, it is our wish that there would be no need for these polemics; we only pen protest essays in response to theological instigation. Correlating to the new year wish of this Open Orthodox leader that the critiques cease, it is my new year wish that there be no further instigation or provocation, such that there would be no further need to respond.

This Open Orthodox leader, who serves as the Chairman of the Department of Talmud at Yeshivat Chovevei Torah (YCT), recently suggested that we should commit to a new type of belief in the events in the Torah – a belief that does not intellectually accept the factual truth of these events:

We need to debate what heresy is, not whether it is allowed… A promising direction is to revisit the philosophical meaning of “belief,” and examine to what degree religious belief can be understood as being a-factual; a faith-proclamation, not a factual postulate. Defining belief as a-factual would allow a person of faith to “believe” religiously in the historicity of the biblical narratives and at that same time entertain the postulates of Bible critics.

Then, the day after Rosh Hashana, this same rabbi proposed that God repents, or needs to repent, for his misdeeds, including His creation of a flawed and insensitive halachic system.

I am sorry, but the above statements are, respectively, heretical and blasphemous. Were such statements to emanate from private individuals, it would be one thing, but for these statements to be expressed by one of the most prominent rabbinic scholars and leaders of Open Orthodoxy, who trains all of the movement’s (male) rabbis, is far more concerning. And since the rabbi who espouses these ideas does so quite publicly, those who feel that the ideas are a radical and alarming departure from Orthodoxy have every right to publicly express such.

Shortly prior to this all, another very noteworthy and well-known rabbi who has affiliated with Open Orthodoxy explicated his belief that any ideas which a fully humble person sincerely intuits as correct are actually divine Torah revelations. (The rabbi elaborates that since he feels that ordaining women for the Orthodox rabbinate is the correct approach from a moral and ethical perspective, such ordination becomes revealed and ratified as part of the Torah and is a mitzvah to be pursued (!)).

This same rabbi, who previously proposed that God did not communicate the Torah to Moses in a literal oral sense, recently argued that proper Torah adjudication involves meshing intuitive values with Torah texts, crafting the textual interpretation to match one’s intuitive values:

The posek begins with the refined intuition and moves from there to the formal legal analysis which he consciously or unconsciously bends to conform to his intuition…  Every situation is different and requires a different quality of discernment.  The level of clarity of moral conviction necessary to argue with God (in the case of Abraham – AG) is different than the inner conviction required to manipulate a tosafot or reinterpret a gemara. Areas which do not involve laws of such severity, or do not involve explicit halakhot at all but involve modification or abrogation of minhag – generally accepted practice – require a different quality of discernment.

These radical articles were reposted and endorsed by the president of YCT. (Please also see here.)

(An alternative approach to halachic adjudication was presented by the previously-noted Open Orthodox leader, explaining that halachic decisions should be made by taking rulings found in traditional source texts and combining them with contemporary values. This rabbi criticizes expressions of Modern Orthodoxy whose core is “exclusively Orthodox”, and he instead maintains that a synthesis of Torah and secular values are to be merged in order to arrive at the proper manifestation of Orthodoxy. Please also see here and here.)

After the founder of Open Orthodoxy declared it to be a new and separate movement or denomination, it has undergone an intense radicalization and an accelerated departure away from Orthodoxy, as is glaringly evident from the above and many other sources. (Please also see this important article on the topic.)

I would like to suggest repentance on the part of Open Orthodoxy, but the sad truth is that this movement/denomination has repeatedly ignored calls to reconsider its actions and trajectory and has instead opted for further separation from all that is Orthodox, creating a new theology that, at best, is a lighter and more liberal form of the approach of the early Conservative movement.

A Guide for Avreichim to the Halachos of Tznius Based on a shiur by Hagaon Rav Gershon Meltzer shlita

 Update: Added interview with Rav Eliashiv which doesn't fit exactly in what is being claimed in his name.

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Someone recently showed me a pamphlet on tznius with the haskoma of Rav Berkowitz (below) and others including Rav Chaim Kanievsky and Rav Ganz. The organization claims that they have the same authority as Chazal in their psakim dealing with tznius and that they must be accepted as authoritative (I assume that means in Israel by the yeshiva community). When I get a copy I hope to publish the whole thing.

שאלה שנשאלה על ידי למרן ר' חיים קנייבסקי שליט"א בכ"ז ניסן תשע"ה

וזה לשון השאלה: תקנות ב"ד משמר התורה שהוקם ע"י הגרי"ש אלישיב והגר"ש ווזנר לפסוק הלכות ולתקן תקנות בדיני צניעות ולבוש הנשים והגרי"ש אמר שזה בתוקף דת יהודית האם זה מחייב כמנהג המקום גם את בני חו"ל הגרים או נמצאים 

בארץ ישראל  

תשובת מרן: כן, מחייב

From the pamphlet:

Examples of Das Yehudis. -------------------------------------------------------------

There are three types of halachos that are included in the category of Das Yehudis: 

I. Prohibitions Enacted by Chazal, such as the prohibition for a woman to uncover theier arms above the elbow. 

2. Local Custom: The accepted rulmg of all Poskim is that a person is halachically bound to follow the strmgencies of the place where he lives.7 Hence, it is considered a violation of Das Yehudis for a woman to dress in a fashion that is considered immodest in her locale, even if she comes from a place where the prevailing standards of tznius were more lax. For example, if a woman grew up in a community in America where certain forms of dress were acceptable, and she now lives in Yerushalayim, she must abide by the more stringent minhagim of Yerushalayim. 

3. Halachos Enacted by a Beis Din or Local Leaders: The Chochmas Adam[1] rules that the shivah tuvei ha'ir in any community have the power of a beis din, even if they are simply ordinary people dedicated to benefiting the public, and not great Torah scholars, and they may enact binding halachic guidelines for the benefit of society. Just as the directives of the Anshei Knesses HaGedolah and other Torah sages throughout the generations have the status of halachah, every individual must follow the dictates of the community in which he lives, unless a rule is enacted that the majority of the public cannot handle.[2] In Eretz Yisrael, Rav Yosef Shalom Elyashiv and Rav Shmuel Wosner, zichronam livrachah, created the Mishmar HaTorah, a group of rabbanim who are responsible for formulating guidelines on matters of tznius, and the decisions of this entity have this binding status.[emphasis added] Baruch Hashem the Mishmar HaTorah’s guidelines have become increasingly accepted by the public. In light of the above, it should be clear that every garment or sheitel must fit into all the guidelines associated with Das Yehudis in order for it to be worn.

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[1] Chochmas Adam (Klaal 102 Sif 1)

[2] The rulings of such leaders on issues of tznius therefore have the same force as the rulings of Chazal and must be followed.

Gedolim in Israel severely criticize those who don't accept their appointment for Meir Seminary

Kikar Shabbat

גדולי ישראל במכתב חריף: "מנסים לסלף ובאים בכוח הזרוע"

לאחר מסע הרדיפה של אנשי 'הפלג הירושלמי' נגד מינוי הרבנית רחל בורנשטיין למנהלת סמינר מאיר יוצאים גדולי ישראל במכתב נחרץ בעניין • "מנסים לסלף את דברי מרנן ורבנן" • פרסום ראשון (בארץ)

סערת סמינר מאיר: לאחר מסע הרדיפות של אנשים 'הפלג הירושלמי' נגד הרבנית רחל בורנשטיין שמונתה על ידי גדולי ישראל למנהלת החדשה של סמינר מאיר בבני ברק, מינוי שאושר באופן חוקי גם על ידי עיריית בני ברק, יוצאים גדולי ישראל במכתב נחרץ בנושא.

"הננו בזה להבהיר בדבר הסמינר אשר נוסד על ידי גדולי ישראל ונוהל רבות בשנים על ידי הרב שמואל מאיר שליט"א ישלח לו ה' רפואה שלמה במהרה.

"היות והנהלת הסמינר פנתה למורי דרכו מרנן ורבנן גדולי ישראל שליט"א, כי יש צורך לחזק את צוות ההנהלה, ע"י הוספת מנהלת פעילה לסמינר ולאחר שהרב מאיר הגיש מיוזמתו את התפטרותו לאחראים ע"כ ברשות המקומית.

"ולאחר בירורים מדוקדקים הוחלט ע"י גדולי ישראל כי הרבנית בורנשטיין תחי' היא הראויה ביותר לנהל מוסד חשוב זה, והננו בזה לחזק את ידיה בהמשך עבודת הקודש בחינוך בנות ישראל לדרך ארץ ויראת שמים.

"צר לנו כי מנסים לסלף את דברי מרנן ורבנן חכמי הדור - אשר הנהגתם הם יסוד אמונתנו - בדבר הסמינר ובאים לפעול בכח הזרוע בין כותלי הסמינר ובין מחוצה לה".

את המכתב כתבו הגאון רבי יהודה סילמן והגאון רבי שבח צבי רוזנבלט ואליהם הצטרפו בחתימתם מרנן הגראי"ל שטיינמן, הגר"ח קנייבסקי והגרי"ג אדלשטיין.

Mendel Epstein's post-trial motion for acquital and prosecutor's opposition

   Mendel Epstein's post trial motion for acquital 

   Prosecutor's opposition to  post trial motion for acquittal

Yom Kippur is about to collide with baseball, but the two go so naturally together

Washington Post    by Mendel Horowtiz

Like a field of dreams, Yom Kippur counts on ghosts to inspire. In Kevin Costner’s role in “Field of Dreams,” his character Ray Kinsella carves a baseball diamond from a cornfield after hearing a mysterious whisper, “if you build it, he will come.” Encouraged by the prophecy and by the spirits of departed ballplayers, Ray in the end discovers his estranged father behind the plate and engages him in a game of catch.

The High Holidays, too, can be stirred by voices of contrition, correction and change. On Yom Kippur, I, too, will carve something precious from a neglected past.

This year, the Day of Atonement falls on the eve of Sept. 23, when the Mets will host the Braves. For the believers in Flushing, baseball might seem delightfully temporal, repentance as distant a notion as spring.

In my synagogue, that holy day will be celebrated as an occasion of longing, an extra-inning playoff of abstinence and prayer. I may not be rooting for the home team that afternoon, but I will be encouraged by baseball’s oddities.

When Yogi Berra quipped “it ain’t over till it’s over” during the summer of 1973, the Mets were in last place, finishing a dismal 44-57. By Aug. 30 the team was 61-71, 6.5 games back with 29 to play. Before the season closed the Mets would claim the NL East, victorious in 21 of their last 29 contests. [...]

Malka Leifer: Melbourne woman awarded $1.27m in damages over ultra-Orthodox Jewish school abuse

ABC Australia    [Additional sources The Australian     The Age]

 

A Melbourne woman has been awarded more than $1 million in compensation for sexual abuse she suffered at an ultra-orthodox Jewish school.

The Supreme Court heard the 28-year-old was sexually abused between 2003 and 2006 by Malka Leifer, who was the headmistress at the Adass Israel School in Elsternwick. 

The court heard the woman was abused at school, on camp and at Ms Leifer's home.

Justice Jack Rush said the victim had suffered fear, uncertainty and major lifelong mental injury including self-harm and awarded her $1.27 million in damages.

The school arranged for Ms Leifer to be flown out of Australia in 2008, within hours of learning of allegations made by the victim and at least eight other girls, the court heard.

Ms Leifer is currently in Israel awaiting extradition, and it is understood she could face dozens of charges of indecent assault and rape if she ever returns to Melbourne.

She has been under house arrest in Israel since last September, but nearly a year later there still has not been an initial hearing on her extradition petition.[...]

Rosh HaShanna: How to check for bugs in simonim

Ya'alon: We know who was behind Duma attack

YNET

Ya'alon was asked whether security forces had apprehended those responsible for the Jewish terrorist attack which killed three members of the Dawabsheh family, to which he answered, "We know who is responsible, but we will not expose those findings in order to protect our intelligence sources." [...]

Naser Dawabsheh, a member of the family, responded to the statement saying, "Ya'alon's statement is not justified, Israel must immediately expose the murderers. They burned the whole society and not just Duma."

Dawabsheh continued to say, "I know the attack was a major incident for Israel, and that Israel wants to arrest them in order to show the world that it is a country which chases and apprehends murderers." But he also added that, "Even if they will be arrested, what will happen then? The court will just say they are crazy, and they will live out their lives in some hotel like the murderers of Mohamed Abu- Khdeir." [...]

The Dawabsheh family home was set alight on July 31st. An initial investigation revealed that masked men threw Molotov cocktails into two homes, and spray painted "Long live the messiah king," and "revenge" in

The Dawabsheh family was staying in one of the homes, while the other was vacant. The family woke up as a result of the fire, and tried to escape the flames with two of their children, four-year-old Ahmed and eighteen-month-old Ali. The family managed to escape, however infant Ali died as a result of his burns.

Saed Dawabsheh, Ali's father, succumbed to his injures a week later. Ali's mother, Reham fought for her life for over a month, but she too succumbed to her wounds on Sunday. The condition of the family's eldest son, Ahmed, has improved slightly in recent weeks, but he continues to be treated in the intensive care unit at Beer Sheva's Soroka hospital. [...]

Dr. Marc Shapiro: Be careful not to call others ignorant because of hashkofa statements - there are often conflicting statements coming from major authorities

Seforim Blog  post by Dr. Marc Shapiro

3. In my post here I quoted R. Moses Isaac Ashkenazi in his Ho’il Moshe that King David is not to be regarded as a prophet as he only had ruah ha-kodesh.

One of the commenters wrote:

Rashi Megilla 14a quotes a Halachot Gedolot which names David as [a] prophet. Rashi speaks specifically about prophets as opposed to Ruach Hakodesh, and excludes Daniel based on Megilla 3a.

Another commenter was more strident:

Wonderful example how modern scholars have no place in the Torah world! As first commenter pointed out, Dovid Hamelech is prominent in the list of 48 neviim, and there are scores of sugyos based on the nevuah of DH. The makom mizbeach, etc. Pure AmHaaRatzus!

I am not sure if I am the am ha-aretz he is referring to, which in any case would be uncalled for since I never said that David only had ruah ha-kodesh and was therefore not a prophet. All I did was point out that R. Moses Isaac Ashkenazi said this. When I called the commenter’s attention to the fact that his strong words were directed against R. Ashkenazi, he wrote:

I wouldn't start up with Hoil Moshe, but was pointing out the danger of someone reading this post, and then taking it at face value. For anyone fluent in Shas they will find numerous references to DH's nevua. Ruach HaKodesh wouldn't work for all the halachos we learn out from DH. . . . I do thoroughly enjoy your posts, but find them quite dangerous. I would prefer my children at least stick to Artscroll and have their basics –DH's nevua – straight!

Now let me say something that I did not put in the comments because I want the entire audience to see it, not just the tiny group that reads the comments. The commenter just quoted is a perfect example of one who is certain of something, and certain that the opposing position is incorrect, and this leads to very harsh language. Let’s leave aside R. Moses Isaac Ashkenazi who is not an important scholar. All would agree that R. Moses Sofer, the Hatam Sofer, is important and certainly not an am ha’aretz (which is the term the commenter used). Yet the Hatam Sofer is explicit that David was not a prophet and only had ruah ha-kodesh, which is exactly what R. Ashkenazi states and what the commenter so harshly attacks. Here are the Hatam Sofer’s words in Torat Moshe ha-Shalem, Ba-Midbar, p. 74.

הנה לא מצינו לישראל מלך שיהי' גם נביא משולח לעם כי אם משה רבינו ע"ה, דכתיב גבי' (דברים ל"ג ה') ויהי בישורון מלך, אבל שארי נביאים לא היו מלכים והמלכים לא התנבאו, ודוד המלך ע"ה רה"ק הו"ל ולא נבואה, ולכן אחז"ל (גיטין נ"ט ע"א) מימות משה עד רבי לא מצינו תורה וגדולה במקום אחד, דאלו כל הנביאים היו עליהם בגדולה השופט והמלך שבימיו, וכל המלכים אפי' דוד ושלמה היו הנביאים שבדורם גדולים מהם בתורה . . . שהרי אין מלך נביא.

This notion, that the kings were not prophets (other than Moses), is also stated in Zohar, Terumah, p. 154a, and this is presumably the Hatam Sofer’s source. I don’t deny that there are other authoritative sources that contradict this, including passages in the Talmud. Some of them are cited by R. Reuven Margaliyot in his note to the Zohar, ad loc., and we can speculate as to why the Hatam Sofer preferred the Zohar over these other sources. I cite this only to show that commenters should be very careful before labeling something as am ha’aratzus, as you never know whom you might be insulting with this comment.

WARNING: Death of couple from using blech in a sealed air conditioned room

Times of Israel

A frum couple was found dead in their Jerusalem apartment this week which was filled with the strong smell of gas. Initial report said that they died from the gas not being turned off - which is unlikely. The gas was being used for the blech. Other reports claim that the aluminum covering the blech did not allow adequate oxygen to the fire so it produced carbon monoxide poisoning. That also is not likely.

The latest report from the fire department is that a gas fire blech was being used in an apartment that was well sealed because of the use of air conditioning. Most Israeli air conditioners provide no fresh air from the outside and thus the amount of oxygen is fixed and limited. Thus as the oxygen level became depleted from the flame, the gas flame started producing poisonous carbon monoxide instead of carbon dioxide.

WARNING: WHEN USING A GAS FLAME MAKE SURE THAT THERE IS FRESH AIR COMING IN THE ROOM