Monday, October 21, 2019

The decisions of the International Beit Din for Agunot (IBD) have generated powerful rabbinic critiques and countervailing declarations of unconditional support. Because the freedom of specific women is in dispute, and because the line of engagement runs roughly along the RIETS/YCT border, we cannot afford to dismiss these disagreements as mere intramural rabbinic squabbling.

Here are five things that everyone should understand about the controversy:

1) The teshuvot published on the IBD website are inadequate. They do a poor job writing up the facts, and make insufficient arguments. A serious scholar who had only read the teshuvot, and had no relationship with or experience of the rabbis involved, could not feel comfortable relying on these permissions.

2) The dayanim for those cases—Rabbi Simcha Krauss, Rabbi Yehuda Warburg, and Rabbi Yosef Blau, are mainstream Modern Orthodox talmidei chachamim with long, admirable records of Torah service. Personally belittling them is a case of Modern Orthodoxy eating its own leaders.

3) The women involved should almost certainly not be agunot; their freedom should not depend on creative legal argumentation. A weak teshuvah does not change the facts, and the facts, as both Rabbi Krauss and Rabbi Blau relate them in person, make a very strong case for permission on conventional halachic grounds.

4) The IBD was generally not overruling other batei din; it was taking on cases which other batei din had completely failed to address. Most, if not all, of the women involved had not succeeded in getting any other beit din to examine their cases to see if they could be freed without a get.

5) The IBD controversy genuinely risks creating an irrevocable split in Modern Orthodoxy. One side is threatening declarations of mamzerut; the other, willingness to preside at marriages regardless. Neither side is bluffing, although each believes the other is, and the result is that the women in question have become gambling chips in a game of halachic poker.

The proper, humane, halachic response to this set of facts is obvious—a statement of regret that the teshuvot are inadequate, together with an expressed desire to listen to the facts, or investigate the cases independently, and to write, or help write, adequate teshuvot freeing the women, if at all possible.

This response must be accompanied by commitment to creating permanent processes for ensuring that no women in North America are left as agunot because their cases have not been given every possible attention. These processes must be transparent and credible across the spectrum of Orthodoxy, and those involved in these processes must see their constituency as at least the full spectrum of the Modern Orthodox community, and hold themselves accountable across that spectrum.

Let me be crystal clear what that would mean. Many halachic mechanisms for freeing agunot are the subjects of dispute in which each side acknowledges the legitimacy of the other. For example, there are deeply-held disagreements regarding Rav Moshe Feinstein’s position that marriages officiated by Conservative rabbis are presumptively invalid (when the alternative is iggun), and about whether a marriage is invalid if the husband concealed a major physical blemish. It is the job of the rabbinic community to ensure that every agunah is given the opportunity to tell her story in full; to have all necessary efforts made to verify and document all halachically relevant facts; to have brilliant, rigorous and creative halachic minds formulate the strongest possible arguments for her freedom; and to have those facts and arguments presented to the broadly accepted halachic authority or authorities who will be most likely to free her. Every rabbi must direct agunot to such authorities, even when not willing to issue permissive rulings themselves.

Let me be crystal clear what that would not mean. Some proposed halachic mechanisms for freeing agunot are currently regarded by much of the Orthodox community as simply invalid, even if the alternative is iggun. An example is the annulment of abusive marriages by rabbinic fiat. Such mechanisms will have no role in a consensus system. This means that some agunah situations may not be resolved. However, the IBD’s caseload suggests that such cases are few and far between, and that most current agunah cases are the product of insufficient access and communication, particularly when local batei din adopt strict positions and do not inform women of alternatives.

Effective local batei din would be encouraged to continue their efforts to help agunot, both at obtaining gittin and at freeing women in other ways when necessary. Women would still be able to seek leniencies in such circumstances from non-consensus batei din, in accordance with their own religious consciences and social needs. New ideas, such as Rabbi Krauss’s zikui suggestion, should be welcomed eagerly, critiqued thoroughly and constructively, and to the extent useful and possible adapted and adopted.

In previous generations, many agunah cases were sent to such luminaries as Rav Ovadiah Yosef, Rav Yitzchak Elchanan, and Rav Chaim haCohen Rappaport. The reason for this was twofold: first, that they had sufficient respect and halachic authority that one could be sure their lenient rulings would be accepted, and second, that they were known to be willing to issue lenient opinions in hard cases, and on the basis of minority or original opinions.

Here is a description of Rabbi Yitzchak Elchanan’s attitude in such cases from his contemporary Rabbi Mordechai Gimpel Jaffe, a great scholar in his own right:

ומ״מ לפ״ד יעצתיו עוד הפעם לשלוח מכתב להגאון האב״ד דקאוונא שיחי׳ ולהודיעו תורף דברי התשובה ומהזהר החדש וכדומה, ויבקש כי יען יצא הדבר בהיתר והלא הוא בעצמו הסכים לסברא דגלוי דעתה, ויחוס על האשה העלובה הזאת, אדמה כי יסכים בהיתרא. וגם אם חס ושלום לא יסכים אבל גם להיפך לא יכתוב. ואתפלא על הרב ששלח איסור בפירוש וכפי דברי מכתבו הלוטה במכתב חתני הגנ״י ששלח לי, דלא חזינן לרבנן קשישאי דעבדי הכי, חותרים בתק׳ע בכל עוז כמ״ש הרא״ש והרא״ם ועוד הרבה גאונים לחפש בעיגונא דאיתתא צידי צדדים להקל. וגם אלו שאין דעתם מסכמת לשריותא דאיתתא הצנועים מושכים את ידיהם. אבל לכתוב לאיסור אינם עושים רק במקום איסור הברור ופרצה גדולה לא על פי הוראת גאון אדיר וגדול הדור . . .

Regardless, in accordance with my usual practice I have advised him once again to send a letter to the Gaon the Av Beit Din of Kovno (Rabbi Yitzchak Elchanan), may he live, and to inform him of the substantive content of the responsum and of the Zohar haChadash (that you cite as evidence for your argument) and the like, and to request that since the matter has emerged with a permission (for the agunah to remarry), and since he himself has agreed with the rationale that a woman’s indication of her mindset (is sufficient demonstration that she entered into marriage only on the basis of a particular assumption, and if that assumption turns out later to be untrue, the marriage was invalid and she may remarry without a get), he will have pity on this suffering woman, so I imagine that he will agree to the permission. And even if, God forbid, he does not agree, he will certainly not write the opposite. I am astonished at the rav who sent an explicit prohibition, as per his letter which was [enclosed] in the letter that my son in-law sent me, as we have not seen experienced rabbis behaving in that way; rather they strive [fixedly] with all force, as ROSH and R’EM and many other Geonim wrote, to seek for agunot the subtlest considerations that enable permission. Even those whose opinion did not agree with the permission of a particular woman—they modestly withdrew their hands from the matter. But to write to prohibit—they do this only in a place where the prohibition is clear and the breach is great, not when it was done on the basis of a powerful gaon among the greats of the generation . . .

The public rabbinic letter attacking the IBD stated clearly its opinion that the IBD’s decisions were not done “on the basis of a powerful gaon among the greats of the generation,” and that “the breach is great.” But the prohibition is certainly not clear, and it should now be obvious that our community has not given these agunot the admirable and sustained individual attention that we gave the widows of 9/11 victims—all of whom were freed, a remarkable halachic accomplishment that is largely owed to current critics of the IBD (some of whom also get enormous credit for the halachic prenup, which is an ounce of prevention worth many pounds of cure).

This attention can and must now be given. Any critique of the IBD must be accompanied not by pro forma sympathy with agunot, but by recognition that it deals with women whom the current system has unjustly and unjustifiably failed, and that this failure has legitimately undermined trust. It must be accompanied by concrete willingness to invest in and endorse mechanisms that will give women transparent access to recognized halachic leniencies, without centralizing power and creating halachic gatekeepers.

If we spend more energy attacking the IBD than helping the women it served—is it a wonder that many learned and God-fearing men and women will choose to sacrifice analytic rigor rather than sacrifice women?

If we spend more energy defending the IBD than helping the women it served—is it a wonder that many learned and God-fearing men and women will see us as engaged in political posturing rather than in sincere halachic argument?

Rabbi Aryeh Klapper is dean of the Center for Modern Torah Leadership, Rosh Beit Midrash of its Summer Beit Midrash Program and a member of the Boston Beit Din. The mission of the Center for Modern Torah Leadership is to foster a vision of fully committed halachic Judaism that embraces the intellectual and moral challenges of modernity as spiritual opportunities to create authentic leaders. The Center carries out its mission through the Summer Beit Midrash program, the Rabbis and Educators Professional Development Institute, the Campus and Community Education Institutes, weekly Divrei Torah and our website, www.torahleadership.org, which houses hundreds of articles and audio lectures.

By Rabbi Aryeh Klapper

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