Wednesday, September 2, 2015

The Agunah (non)solution -- my uninformed thoughts

OK, first off, I am no one. This is not a case of false modesty – I really am not versed in the intricacies of the laws and the rabbis involved all have my esteem and respect for their dedication to Judaism and their levels of knowledge and commitment. I have studied a little and have only a half knowledge so I write what I do with many caveats. But I just read an article about a current sub-crisis within the agunah crisis and I am moved to write some thoughts down.

An agunah, you will recall, is a woman whose husband has not given her a Jewish bill of divorce (“get”) so she cannot remarry, but who, for whatever reason, is not functionally married in any sense. Her husband might have divorced her civilly but is holding back the get for a reason, or her husband might be chaining her within the marriage and refusing to issue a get simply because he refuses to allow the marriage to dissolve. The chained woman is effectively powerless.

There have been, over hundreds of years, a variety of approaches trying to find a way to free these women, to allow them to move on with their lives, remarry and find a measure of happiness (which is especially acute when the husband moves ahead to remarry as he, under Jewish law, is not forbidden from taking 2 wives while the agunah would be biblically proscribed from remarrying and having 2 husbands). The husband cannot be forced to issue a get while a woman cannot stop him when he decides to serve her with one. The inequity is palpable and sickening.

In the past, some rabbis have resorted to force, trying to “convince” the husband to issue the get through the use of a tire iron (the Jewish court has precedent for encouraging a change of heart by means of force). Some have issued writs of excommunication, hoping that communal excision, pressure, and embarrassment will convince the husband to change his mind. Some demand pre-nups now so as to avoid later problems. Books have been written exploring the history, options, and implications of the problem. To date, there is no definitive solution.

Apparently, and according to an article in The Jewish Week ( a relatively new religious court has found a way, in many recent cases, to retroactively invalidate the entire marriage, thus obviating the need for a get to dissolve the union. In one case, they ruled the marriage non-existent based “on the Talmudic principle that the woman never would have married her husband if she had known he would act in an abusive fashion during the marriage.” This is an element in the judgment of a kiddushei ta’ut, a mistaken marriage. This approach has been tried before and is subject to much argument (see for one viewpoint and sources). This approach and the concerns surrounding it are not my focus though.

In other cases, “the court reviewed videos of the couples' wedding and found one or both witnesses invalid, thereby annulling the marriage.” In response to their actions, Rabbi H. Schachter wrote a letter in which he said, “great scholars of the generation” should be the ones making such sensitive judgments. I have a series of questions here and it is those questions and their answers which will give me a better sense of my feelings about this brouhaha.

Until then, my pronouncement is that all involved in this are acting like righteous fools. There I said it. Feel free to excommunicate me.

While you are preparing the paperwork, here are my questions:

1. (for Rabbi Schachter) is your concern simply WHO made this pronouncement? Or is there an argument to be made against WHAT was decided?

1a. If there is something wrong with the method employed to free these woman, what is it?

1b. If there is nothing wrong, could YOUR beit din simply rule identically so, at least in the short run, the limbo these women are now in would be removed?

1c. If the historic position is that we find any leniency to free an agunah, does it really matter who finds the leniency or even if it is a leniency that another court might not have thought of? If one has sources, are there leniencies which are “too lenient”?

1d. How does one attain the status which allows it to make pronouncements? Who judges that a gadol is a gadol? I am nobody and to me, Rabbi Krauss certainly has the kind of learning which prepares him to present this option. What is the yardstick which would prove otherwise? Couldn’t someone look at the RCA or any other organized beit din and say it is not equipped to judge? Is this any different from the Israeli rabbinate proclaiming that American rabbis cannot convert people, more about cementing a base of power and monopoly than judging the quality of the ruling?

1e. If the ruling of the IBD is based in halachic sources then what does their personal stature have to do with anything? Are the sources wrong?

2. (For R. Krauss) How does one find a witness invalid through a video? What does one look for which can effect such a ruling?

2a. Does this create any change in the status of the children had in what is now retroactively “not wedlock”? Though they are not mamzerim technically, could their being born not in a context of a valid kiddushin have any halachic or social implications? Does it affect, halachically, the judgment of the behavior of the couple who have been living together inappropriately, for years?

2b. Could this decision be used in a civil court to tip the balance in any divorce as it acts as a judicial finding that the marriage never existed so one could argue that the civil marriage is affected and marital events and proceeds must now be reconsidered, or bolster one side’s claim that the entire marriage was under false pretenses?

2c. Wouldn’t this be precedent for a husband to retroactively invalidate a marriage to avoid the RCA pre-nup?

2d. Couldn’t this serve as a precedent for an unscrupulous wife to invalidate her marriage and jump into a marriage to someone else at any turn (even a Kohen, as she would not be a divorcee)? Even repeatedly?

2e. Wouldn’t finding witnesses invalid in one wedding require that any other couple who later had either of the same people as witnesses get remarried with new witnesses because that one witness has been ruled invalid? Will the IBD be notifying other couples that they are not halachically married?

2f. If there is no monopoly or required central authority working to solve this in an approved fashion, then why would there have to be a central standard by which to judge witness validity? Any ad hoc beit din could go around invalidating marriages, even against the will of both husband and wife. If we allow the destruction of the underpinning of the marriage contract, then could have a larger crisis on our hands and destroy the faith we have in any halachic marriage, let alone any situation which requires witnesses.

Look, I hate the agunah crisis. I hope that a way is found within the bounds of Jewish law to make this whole thing go away. Refusing to give a Get is terrible. Exploiting religious law to torture another human being is inexcusable. That being said, I also understand (not like, not endorse, but certainly understand) how in some cases, the issue of a Get as leverage is the only way a husband can negotiate a fair settlement in civil court.

I don’t have answers, and maybe this solution isn’t an answer. Maybe it is. But the proper response, Rabbi Schachter, isn’t to shoot the messenger without considering the message, giving it its due and being transparent with the people about why it isn't the solution. And in the same way, the proper approach, Rabbi Krauss, isn’t to introduce more problems halachically by trying to exploit a potential leniency, especially without employing the same transparency of process so any and all concerns can be raised and a new process be properly vetted before it is relied on.

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