Shabbat Zakhor and the Agunah Problem by Rav Shalom C. Spira

  Shulchan Arukh Orach Chaim 685:7 requires all Jewish gentlemen [and according to some interpretations, Jewish ladies as well] to attend synagogue for Shabbat Zakhor, because the special maftir Torah reading constitutes a binding obligation on every individual. Remarkably, the haftarah reading from the Prophets that immediately follows this maftir, while not as weighty in terms of attendance duty, is of special interest to the agunah problem.

      "And Saul came to the City of Amalek, and he waged war in the nachal [wadi]" (I Samuel 15:5). The Gemara, Yoma 22b elaborates on "nachal" to mean that Saul's conscience struggled with the morality of waging war against Amalek in light of the mitzvah of the eglah arufah which is performed in a wadi called nachal eitan (as per Deut. 21:4). Specifically, says the Gemara, Saul contended as follows:

       "If for one soul [that is the victim of homicide] the Torah says to bring an eglah arufah, then how much more so for all these souls [in the City of Amalek]. And if the people sinned, how did the animals sin? And if the grown-ups sinned, how did the minors sin?"

      The Gemara concludes that a Heavenly voice answered Saul "do not be overly righteous" (Ecclesiastes 7:16). Namely, since the Holy One, Blessed Be He, specifically commanded Saul [via Samuel the Prophet] to wage war against Amalek [including children and livestock], therefore by definition the command is perfectly ethical.

      Now, by contradistinction, when we deal with the agunah problem, there is obviously no bloodshed in progress [witticisms about the sequence of Tractates Gittin and Kiddushin left aside], and hence it is fortuitously not as high-intensity an emotional drama. But the answer that the Heavenly voice gave Saul indeed represents the appropriate repudiation to heterodox groups who insist on every agunah being entitled to leave her husband [no matter whether the husband is guilty or innocent of wrongdoing]: "do not be overly righteous." It is not possible to be more ethical than the Holy One, Blessed Be He, Who Has commanded us as Orthodox Jews to respect the sanctity of kiddushin. 

      There is, of course, a class of delinquent/abusive/evil husbands who must be told or even coerced to deliver a get, as per Shulchan Arukh Even ha-Ezer nos. 77 and 154, but this concerns only a minority of cases. So, the matter is nuanced, ka-asher tzivah Ha-Shem et Mosheh. It is precisely for this reason that R. Avigdor Miller reportedly commented that there are no agunot nowadays, an exaggeration but still a valuable tranquilizer to the heterodox groups.

      The above message is eloquently captured in the following 1975 remarks of R. Joseph Ber Soloveitchik [recorded at <https://www.yutorah.org/lectures/767722/>], responding to R. Emanuel Rackman's ill-fated proposal to rescue all agunot by claiming kiddushei ta'ut:

      "The truth is attained from within in accord with the methodology given to Moses and passed on from generation to generation. The truth can be discovered only through joining the ranks of the chakhmei ha-mesorah. It's ridiculous to say 'I have discovered something which the Rashba didn't know, the Ketzos didn't know, the Vilna Ga'on had no knowledge. I have discovered an approach to the interpretation of Torah which is completely new.' [It's] ridiculous. In order to join the ranks of the chakhmei ha-mesorah – Chazal, Rishonim, Acharonim –  we must not try to rationalize from without the Chukei ha-Torah, and we must not judge chukim u-mishpatim with the secular system of man."

      Some confusion appears to have been generated by a recent article published by R. Yonah Reiss claiming that there is a tradition of numerous poskim to find an escape-mechanism for every agunah. In the text accompanying footnote 7 of  <https://bethdin.org/the-halakhic-prenuptial-agreement/>, Rabbi Reiss avers that:

      "For the past one hundred plus years, there have been sustained efforts by numerous Jewish law authorities to formulate a type of prenuptial agreement that would address an additional area of concern within the Jewish community, namely the problem of Agunot (women whose husbands refuse to give them a Get despite the non-viability of their marriage). Since there is a long tradition of employing prenuptial agreements for the protection of a woman’s interests, including sustaining a marriage when in her best interests, or providing support for a woman in a troubled marriage, it seemed logical to use  this time-honored device towards the age-old rabbinic desideratum of preventing women from being Agunot."

      The reference in footnote 7 for the above text is as follows:

      "See the lengthy discussion in the article “Ein T’nai B’nisuin” by R. Tzvi Gartner and R. Betzalel Karlinsky, published in Yeshurun, volumes 8-10."

      Alas, be-mechilat Kevod Torato, Rabbi Reiss is mistaken. The three parts of the Gartner & Karlinsky article [available at <https://hebrewbooks.org/pdfpager.aspx?req=20292&st=&pgnum=690&hilite=>, <https://hebrewbooks.org/pdfpager.aspx?req=20349&st=&pgnum=681)>, and <https://hebrewbooks.org/pdfpager.aspx?req=20399&st=&pgnum=723&hilite=>] actually demonstrate how the consensus of Gedolei Yisrael condemned innovations designed to automatically grant agunot an automatic get [or freedom to remarry without any get whatsoever], and characterized these innovations as heresy. [Cf. Iggerot Mosheh, OC 4:49 who likewise describes as heretics those who attempt to reform halakhah for the sake of the feminist movement.] In my opinion, this also flows from the Mishnah, Yevamot 107a that "the daughters of Israel are not hefker." [N.B. Although Beit Hillel argue against Beit Shammai in that Mishnah with respect to kiddushin de-Rabbanan, the implication is that Beit Hillel concur with Beit Shammai regarding kiddushin de-Oraita, indeed the only form of marriage used nowadays. See also Rabbeinu Tam cited by Tosafot to Ketubot 63b that it is impossible that the Torah would allow an arrangement where every Jewish wife can leave her marriage whenever "she sets her eyes upon a different gentleman."]

      Importantly, Rabbis Gartner and Karlinsky cite (in footnote 103 of the second tier of their article) Rabbi Dr. Bernard Revel, First President of Yeshiva University, as upholding the sanctity of marriage. This conveys the message that an agunah who graduates YU has exactly the same halakhah as an agunah who graduates Lakewood or Kiryas Joel.

      To be sure, there is one prenup which can actually help agunot within the parameters of Orthodox Judaism, as I have showcased at <https://daattorah.blogspot.com/2023/07/tishah-be-av-and-agunah-problem-by.html>. Consistent with the aforementioned words of Rabbeinu Tam, any such prenup cannot grant an automatic "get out of jail free" ticket to every agunah. Rather, my prenup improves the financial position of every wife, allowing her to negotiate with her husband and offer to pay him for a get if both sides can arrive at a common understanding.

      "There is no wisdom and no understanding and no counsel against Ha-Shem" (Proverbs 21:30 cited by Eruvin 63a). The secular values of the street must defer to the sanctified values of Orthodox Judaism. It was my father's wish that his legacy be perpetuated through the recognition that the kiddushin which Reb Aharon Friedman offered Ms. Tamar Epstein was [and remains] valid, as discussed at <https://daattorah.blogspot.com/2025/01/a-eulogy-for-my-father-bt-av-shalom-c.html>. Let us remember this message on Shabbat Zakhor.

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