Sadly, the war is not over

Sadly, the war is not over

I recently read two articles about Jewish divorce law and agunot. An agunah (singular of agunot) is a “chained woman,” separated from her husband and languishing in (i.e., chained to) a dead marriage, without the ability to remarry because she has not received a gett (a Jewish divorce document). Most often — and certainly too often — this situation arises because her husband, who according to halacha (Jewish law) must deliver a gett to his wife to effectuate a Jewish divorce, refuses to do so.

Both articles discuss the issue of coercion; that is, the question of whether a gett given by a husband who has been coerced to do so is valid. One, “Harchakot D’Rabbeinu Tam” by Rabbi Haim Jachter, is a halachic analysis of this question and how it plays out practically today. The other, by Eliezer Finkelman, deals with the broader issue of agunot and is less analytical. Rather, it is, as its title suggests, “A Parable About Divorce and Remarrying.” While the parable appeared first, it can be read, I think, as a response, at least in part, to R. Jachter’s article.

R. Jachter explains that a gett delivered by a husband under coercion generally is invalid. The definition of coercion, though, is complex. For example, there is a halachic dispute as to whether certain sanctions imposed upon a recalcitrant husband by a Jewish court — e.g., refraining from doing business with him or refusing to circumcise his sons or bury his deceased relatives — are deemed by halacha to be the type of coercion that invalidates a gett. Some decisors rule it constitutes coercion, thus resulting in an invalid gett. Others declare the gett valid because they do not deem it to be halachic coercion.

Thankfully, as R. Jachter notes, there are important leading rabbinic authorities, both in Israel and the United States, who accept the second position in theory and in practice. Thus, in several actual cases, these authorities have successfully imposed such types of sanctions on recalcitrant husbands, resulting in the delivery of a (valid) gett and the freeing of the agunah.

We are also told how deeply some leading rabbinic figures care about the agunah issue. Thus, R. Jachter quotes a prominent 20th-century American halachic authority who compares the withholding of a gett until unjust monetary demands are met to murder, and notes that another such authority calls recalcitrant husbands “‘oppressors’ and urges helping their wives.”

R. Jachter is a well-known and highly thought of rabbi, talmid chacham (Torah scholar), author, teacher, and rabbinic judge specializing in Jewish divorce whom I’ve known personally and respected for many years. I wasn’t surprised, therefore, that his article explains the halacha clearly and accurately. And yet, I think the article paints an upbeat picture of the situation that doesn’t tell the whole story and, indeed, misses some of the truly distressing aspects of this sorry state of affairs.

Thus, while the positive stories at the end of the article about sanctions having worked are gratifying, they’re possible only according to some authorities. For those rabbis who don’t accept the validity of a gett that is granted following such sanctions, this technique offers no relief.

More importantly, though, even for those (likely including most of the Modern Orthodox rabbinate) sanctioning sanctions, is this how halacha should work? Is that the best our highly sophisticated legal system and the great minds behind it can do — make threats, ostracize people, and punish their relatives in the hope the recalcitrant husband will comply?

Moreover, sanctions are not particularly effective because our modern context is so different from the era in which they first were instituted. Then, Jews lived in kehillot — corporate communal bodies which had varying degrees of police power. In such societies, where leaving the kehillah was often difficult and even more often remaining a part of the kehillah highly desirable to its members, those circumstances made it possible for communal leaders to use permissive coercive measures effectively, thus significantly minimizing the problem.

In our current open Jewish society, which is structured very differently, husbands are, for many social reasons, often not susceptible to such threats. And sometimes, even when serious sanctions are imposed and effectuated, they don’t get the desired result. Thus, although Israeli law allows for the jailing of gett withholders, the agunah’s chains are not unlocked if her husband decides to sit in jail, as was the case for one husband who remained in jail for 30 years.

It’s even worse on this side of the Atlantic, where rabbinical courts do not have the state power that the Israeli rabbinical courts do. And so, ORA (Organization for the Resolution of Agunot), which does commendable work in helping free agunot, including sometimes applying pressure successfully, has limited success. Just look at the page of its website called Recalcitrant Parties, which has pictures of 19 men against whom sanctions have been issued or who are eligible for sanctions. A separate page includes the names of 80 agunot.

Note, as the pictures make clear, this is a local story as well, since one of the recalcitrant men, Ari Satz, is from Bergenfield. And although our local Rabbinical Council of Bergen County deserves praise for imposing sanctions against him, the sanctions so far have proven ineffectual.

And one final example: the infamous case of Meir Kin, a well-known gett withholder, which has even been reported in the New York Times. While that case has many twists and turns, the bottom line is that despite rabbinical support for not burying his relatives, his mother is buried in Israel, he continues to refuse to deliver a gett, he’s been “remarried” for almost a decade, and his unfortunate agunah wife (I’m tempted to write “ex-wife,” but while that’s true in reality, it’s not true in halacha) remains imprisoned in her shackles.

So much for the broad efficacy of sanctions.

As for the supportive statements of eminent rabbinic leaders, while they certainly have rhetorical power — a recalcitrant husband is like a murderer. Wow! — they fall flat in practical terms. Does halacha truly treat these destroyers of people’s lives like murderers? Halacha isn’t reluctant to use harsh and coercive techniques against potential murderers if that will preclude the spilling of innocent life. And yet it bans coercion in the supposedly analogous situation of improperly withholding a gett.

Similarly, the language of “oppressors” and “help” is also strong on rhetoric but weak in reality. If, because of the strict laws banning coercion (and other similar stringencies), the only help against the oppressors is too often limited to either advising a wife to pay to her husband a ransom to release the gett or bemoaning the wife’s unfortunate situation, how helpful is such help?

I understand the importance of words. But they shouldn’t be used as a substitute for real solutions.

Which brings me to Eliezer Finkelman’s “Parable,” whose strength lies in its focus on the imbalance between weak rhetoric and the unfairness and injustice that actually exists for too many Orthodox Jewish women. It imagines a parallel universe where women, not men, are the ones required to deliver a gett and where women (ditto) constitute the members of the battei din (religious courts) rendering rulings about divorce.

The parable begins with a man who wishes to remarry though his wife has not given him a gett. He goes to an all-woman tribunal (remember it’s a parable) that he hopes has the power to release him from his marriage. His hopes are dashed when he’s told only his wife has that power. He explains that, not surprisingly, his wife has no interest in helping him gain female companionship, remarrying, or starting a new family. Sorry, he’s told. It’s up to her.

And on and on, with the man receiving from the beit din all the answers — or, perhaps more accurately, lack of useful answers — that women seeking help in being freed from dead marriages receive in our real universe where men wield the power: e.g., sorry, we need the husband’s cooperation; sorry, the former rules allowing remarriage in certain cases without the husband’s agreement are now deemed to be against current tradition; sorry, the tribunals that rule otherwise are non-traditional renegade ones whose decisions are not accepted; sorry, the tribunal’s lack of men who might be more understanding of and sympathetic to his situation is an immutable tradition notwithstanding a case in our holy scriptures to the contrary; and on and on with yet more sorrys as to why they can’t help him remarry. (I highly recommend that you read the full parable; my summary does not really do it justice.)

Skipping to its end, the husband begs the tribunal to threaten to ruin his ex-wife’s life just as his life is now being ruined, hoping that might finally push her to deliver the gett. Sorry, that won’t help either, he’s told, because such threats are the type of coercion that can invalidate a gett. One final, unavailing, protest by the husband: But you said I could buy her off with money. Isn’t that coercion? Sorry yet again.

The question the parable wants us to ask when we finish reading it, I think, is whether men would stand for such unfairness in a system that proclaims itself to be the word of God. And I believe its unspoken answer is that we (being male, I use that pronoun) would storm the gates of heaven demanding fairness.

This is why, when I transpose this story back to our real universe of male dominance, I read it, in part, as a response to R. Jachter’s analysis. Unlike his upbeat presentation on the usefulness of sanctions and rabbis’ supportive words, the parable highlights how that perspective and the ineffectual solutions for all too many cases does little to ameliorate the basic unfairness that continues to destroy lives. (Remember the analogy to murder?)

Let me interrupt myself for an admission. As the butler said to Pharoah after hearing of his sovereign’s dreams, et hata’ai ani mazkir hayom (Genesis 41:9) – I must mention here a past error. In 1999, I wrote an article sponsored by the Orthodox Caucus’s ROVE project (Responsible Orthodox Viewpoints and Editorials) titled “Let Us Declare the War is Over” (with thanks to Phil Ochs, the great songwriter and troubadour of the 1960s, for the title). It too was about agunot, and discussed a number of what I then thought were recent positive developments to improve their situation: i.e., the acceptance by many Orthodox rabbis of a new halachic prenuptial agreement; an amendment to New York’s Get Law (N.Y. Dom. Rel. Law §236 Part B 6(d)); the withholding of privileges from those who refuse to participate in gett procedures (the sanctions R. Jachter discussed); and the involvement in major rabbinical courts by individuals especially sensitive to this issue and committed to doing all they could to correct it.

Based on these improvements, I concluded that the search to find and finally implement a fix to the agunah problem was promising. Thus, I argued that the war of words hurled by women’s advocates against Orthodox rabbinic leadership for its failure to solve this problem should be ended and replaced by pressure, lovingly applied.

(The article appeared only online, and I can’t find any link to it. If anyone with greater tech skills than mine — a very low bar — can do so, I would be eternally grateful.)

Some of the points I made in the article are, I still think, valid. For example, the halachic pre-nup has been used by many, like my married daughters and their husbands, in the Modern Orthodox community, and has had some real, though limited, positive results. However, with the benefit of hindsight (like my eyes after cataract surgery, not quite 20-20 but certainly much better than before), I realize I was overly optimistic. Decades later, the Jewish divorce system still treats men and women unequally, with built-in unfairness to women who too often are its innocent casualties. Thus, the only real way to end the war I wrote about is for those with halachic power to finally take real steps to eliminate the plight of the agunah from our midst.

Which, of course, raises the $64,000 question (yes, kids, at one time before the quiz show scandals, that actually was a lot of money): how can that be done? And here, as a lawyer and not a halachic scholar, I’ll have to punt — but only partially. I can’t construct and present a comprehensive set of rules that will obviate this issue. That will take those with greater expertise and power. But I’ve heard enough lectures and shi’urim and read sufficient articles and books about the agunah issue to have come to the conclusion that solutions exist if only there were the will and courage necessary to implement them. I’ve heard of proposed solutions a number of times only to also hear “but we can’t do that because of this reason or that” — often a stringency or the strictest opinion or some public policy or meta halachic principle. One problem, though, is that these reasons are piled on the backs of the agunot, and it is they, and not the rabbis who raise the stringency, public policy, or meta halacha, who must bear the dire consequences of the status quo.

My thoughts about agunot, and their connection to the two articles discussed above as well as the memory of my long forgotten (by everyone other than me) 1999 article, were brought to the fore by a learned halachic presentation I recently heard at Davar. (Davar, in a nutshell — and it deserves an entire bowl of nuts — is an institute that invites a fascinating and broad range of speakers to Teaneck six or seven times a year to deliver three lectures over Shabbat in a tefillah — and kiddush — setting.) The speaker analyzed issues, as discussed in rabbinic literature, concerning situations of ending a marriage by rabbinical power. He concluded his presentation with a discussion of a different way of understanding this power based on an analysis of it by a mid-20th-century rabbinic scholar, Rabbi Chanoch Henoch Eigis, in his book of responsa, Ha-Marcheshet (Part 2, Se’if 11).

Building on R. Eigis’s formulation of rabbinic power, he suggested a way of applying it in relevant situations today. This could be useful, he argued, in taking the sole power of divorce out of the hands of recalcitrant husbands and placing it more meaningfully into the hands of Jewish courts, thus significantly easing the plight of agunot. (The speaker made clear more than once that he was speaking theoretically and not halacha le-ma’asseh — declaring a halachic conclusion to be followed in practice today. But that could change, of course, if he were joined by enough other important halachic voices.)

In the midst of this presentation, which welcomed questions and comments, a scholar in the audience cried out after hearing the last idea, “but we pasken like the Rashba.” What I understood he meant by that comment was that the accepted halachic understanding among earlier scholars regarding rabbinic power to end a marriage was based on the position of Rav Shlomo ben Avraham ibn Aderet (the Rashba), a highly regarded 13th-century leading halachic authority. And the questioner’s point was that the Rashba’s opinion wouldn’t allow for the suggestion based on the Marcheshet.

“You’re correct,” was the response. “And that’s my point. We need a paradigmatic shift in the way we look at these issues, considering the world and circumstances in which we live. And that shift, if adopted, based on arguments and opinions found within the corpus of halachic literature, can result in real and positive change.” (The quotes in this paragraph are a free paraphrase of what was actually said on that Shabbat morning based on my memory, since no video or written notes could be used.)

As my readers well know, I’m not a rabbi and I don’t issue halachic decisions. But as a relatively knowledgeable layman, and one interested in law, halacha, and the role of women in Judaism and the impact of halacha upon them, I’ve known for a long time that the problem of agunah is one that is a stain on the soul of Orthodoxy; that easing that plight cannot depend solely on caring rabbis and ad hoc solutions that sometimes work and often do not; and that too many lives of innocent women committed to halacha have been ruined by the evil and spiteful acts of men with whom they once had a loving relationship.

And I know that we’re long past the time for rabbis to bemoan the fact that their hands are tied and they are unable to stop one group of Jews using halacha to exploit a second, powerless group. As a result, I believe — and as one who has studied and observed halacha throughout my life, I need to believe — that if halacha is truly the law of a loving and caring God, it must hold within its mysteries and complexities a solution for this desecration of His name.

I know the time is long overdue to find and implement such a solution. I know it’s time for action.

Joseph C. Kaplan, a regular columnist, is a long-time resident of Teaneck. His work also has appeared in various publications including Sh’ma magazine, the New York Jewish Week, the Baltimore Jewish Times, and, as letters to the editor, the New York Times.

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