When we hear about a spouse refusing to grant a Jewish divorce today, we assume it’s the man who is doing that, almost always for nefarious reasons. A responsum from the twentieth of Tevet deals with a woman who will not accept a get. In those cases, thanks to what is known as חרם רבינו גרשום, the ban of Rabbenu Gershom (I think academic historians suspect that these ordinances actually came about somewhat later, in the late eleventh or early twelfth century), the husband cannot remarry until the wife accepts the get.

I don’t mean to imply that the two spouses are equally burdened by the other’s refusal to go through the process of divorce. The husband has the option of securing the consent of a hundred rabbis, from three different countries.  That’s because, by Torah law, the husband is allowed to have multiple wives whereas the wife is not. True, Ashkenazic Jews no longer do that, since the time of this ban, and, early on, Sefardi women solved the problem by inserting a clause into their ketubbot, prohibiting the husband from taking a second wife without her permission. But Rabbinic ordinances are often more easily circumvented than Biblical prohibitions.

In the cases before us this week, there were still problems.

Halachah in the Wild West

On 20 Tevet 5691 (9 January, 1931), R. Kook, Shut Ezrat Cohen 4, responded to a query from R. Gershon Katzman, rabbi in San Francisco (who, based on the Internet and the 1930 census, seems to have been 54 in 1931, had two children with his wife, who was 12 years older than him, and passed away in 1953 in Los Angeles), about a case of a woman refusing to accept a get. This woman had left observance completely, was suspected (but had not been seen doing it) of promiscuous activity, and the couple had already been civilly divorced.

Finding 100 rabbis from three countries was not easy in San Francisco in the early thirties, so R. Katzman wanted to know if the husband could give the wife a get in absentia, by giving it to the court on her behalf. Halachically, we allow people to make acquisitions for others as long as that acquisition is of unequivocal benefit.

For example, anyone can accept a present on someone else’s behalf, and halachically that present is then already the intended party’s. One place this arises is giving a gift to a Shabbat host. Usually, we prefer not to transfer possession of items on Shabbat (acquisitions are a non-Shabbat activity), but what if the guest won’t see the host before Shabbat? This principle of זכין לאדם שלא בפניו, that we can benefit someone outside their presence (and without their active assent or even knowledge) allows us to give that gift to anyone on the host’s behalf, and from then on it is already the host’s.

If we could assume a get was to her benefit, the husband could give it even without her there, and then would no longer be married to her. Of course, part of the problem is that her refusal to accept it seems to imply that she does not see it as a benefit.

The Psychology of Abandoning Observance

As R. Kook notes, Rema in Even haEzer 1;10 does refer to giving a get as a benefit to a woman, but only when she has converted to another religion, leaving us to assume she is fornicating with non-Jews (and would thus be better off if she weren’t married, since she would then not be committing adultery). Note that in that circumstance, we are confident the get is to her benefit even if she disagrees; if she is going to be having what halachah would consider adulterous affairs, it is better for her to be divorced, even if she sees it differently.

In the situation as described, R. Kook points out, unless we know she’s committing adultery, we cannot assume the get is unequivocally beneficial, and could not give it to someone else on her behalf. So we have to figure out the level of evidence we have as to whether she has abandoned Jewish ethics enough that she would also commit adultery.

One reason to assume that is that she didn’t care about anything else Jewish. There was good evidence that she violated Shabbat and holidays, ate non-kosher, and did not go to mikveh. But, as R. Kook notes, she might think of adultery as a more serious sin, and therefore be careful not to violate it.

There is an halachic principle that someone who violates a more serious sin will also violate a less serious one (and Shabbat, e.g., is more serious), but R. Kook notes that in Yoreh Deah 119;8, this rule depends on how people see the relative severity of the sins, not on their technical halachic relationship. If, in her place, adultery was seen as more serious than Shabbat, her lack of Shabbat observance cannot tell us anything about whether she’d committed adultery (or would do so in the future).

Shach there, paragraph twelve, adds that it’s also only within one area of halachah—if she violated a more serious sexual sin, we could reason from there to a more lenient one, but not across halachic realms.

Without saying it, R. Kook is claiming that when we extrapolate from one type of nonobservance to another, we are making an assumption about the attitude and approach of the sinner, not the realities of the halachic system. We have to be careful that we are dealing with the sinner’s actual approach, and not the one we would have hoped this sinner would adopt.

The Sociology of Abandoning Observance

Kook also knows the view of Tevuot Shor 2 that transgressing three well-known sins publicly turns a Jew into a מומר לכל התורה כולה, an apostate who has abandoned the entire Torah, as long as we do not know of any observances about which this Jew is careful. For Tevuot Shor, this categorization is strong enough that that person loses their ability to perform shechitah, to slaughter animals and have them be kosher (without repentance, that person is like a non-Jew, in terms of ritual slaughter).

R. Kook argues that that’s only when the three sins are ones the surrounding community observes carefully. In a place like San Francisco, where observance is generally weak, her sins likely do not qualify her as having abandoned the religion, since she’s not that much worse than those around her (which implies, incidentally, that R. Kook might have thought that a shochet in San Francisco at that time might not have been disqualified by violating three well-known sins, as long as few people in that community were adhering to those!).

Nonobservance can write us out of the Jewish people. R. Kook was reminding R. Katzman that in order for it to do so, the nonobservance has to be intended as rebellion against Judaism as this person knows it and experiences it, in the environment in which this person lives.

The Force of Suspicion

That isn’t the end of the story because, as R. Kook notes, there are persistent rumors about this woman, she does violate the Torah in many other ways, and the couple already has a civil divorce which, even if she contested it, is nonetheless valid in American law, and will therefore encourage her to feel freer in her relationships with other men. Therefore, he suggests, if the court collects firm testimony about why there’s room to believe she committed adultery (with her having been informed of the date of the hearing so that she can attend and confront her accusers), there’s room to allow the depositing a get on her behalf, which suspends the חרם רבינו גרשום enough that the husband can remarry.

A Better Solution

Having gone through all that, R. Kook prefers the solution he then offers. Since R. Katzman is looking into this option because of a lack of rabbis to sign a heter me’ah rabbanim, a document that allows the husband to take a second wife (halachically), he can send R. Kook the court documents. If they bear out the husband’s claims, R. Kook can find the hundred rabbis from three countries, have them sign the heter, and send it back to San Francisco, for this man to marry.

The solution seems to make the responsum banal, in that it turns it back into an ordinary instance of a man securing the permission of a hundred rabbis to ignore the Herem Rabbenu Gershom. The interest I found in the responsum had less to do with divorce issues than with its discussion of how we evaluate others’ abandoning tradition.

For a contrasting example (and the more traditional response to nonobservance), Rambam in the 3rd chapter of Hilchot Teshuvah lists those who have set themselves outside the Jewish nation so fully that they lose their share in the World to Come. One sinner on that list is someone who violates any Torah law להכעיס, a term I find difficult to translate but means something like “rebelliously, with no other motive than to transgress.”

R. Kook does nothing to disagree with that, but shows us how difficult it can be to determine. For this woman in San Francisco, and many like her, was the cessation of Shabbat observance a declaration of having abandoned her Jewishness? If not, if she thought of herself as Jewish but no longer saw Shabbat as necessary to her Jewishness (as many Jews today would insist, however mistaken R. Kook and we would consider them), can we even be sure that that lack of observance translates to other areas of Jewishness?

Those questions resonate far beyond the particular instance in which they came up for R. Kook, and are worth pondering continuingly—who are those with whom we still share a worldview and an overall set of commitments, who are those who have parted company with us, and how fully have they parted company?

In answering those questions, there is the evaluation of their observance of lack of it in objective, systemic terms (which is important and applicable to many situations) as well as the answer given from that person’s perspective, psychologically and sociologically. And it’s all relevant to technical halachic issues, such as if it is unequivocally beneficial to them to be given a get.