On June 24th in New York City, an “agunah summit” was jointly convened by the Jewish Orthodox Feminist Alliance(JOFA) and the New York University Center for Law and Jewish Civilization. As the day wore on, it seemed that little new would emerge from the conference until Rabbi David Bigman of Israel suggested revisiting the Rackman Beit Din(RBD), which in the late 1990’s, under the leadership of the late Rabbi Emanuel Rackman z”l, had freed agunot by annulling their marriages. This spark of hope kindled by Rabbi Bigman was fanned into a full flame when Rabbi Asher Lopatin later forcefully called for a “super-charged Rackman model.”
Rabbi Bigman called for revisiting the Rackman Beit Din (RBD) and starting a similar beit din that would be more transparent. Rabbi Rackman z”l was a widely respected modern Orthodox rabbi who had held countless prestigious rabbinic positions including at the Rabbinical Council of America, the Beth Din of America, major New York synagogues, Yeshiva University and Bar Ilan University. The RBD freed agunot by annulling their marriages based on numerous rabbinic sources. Rabbi Bigman implied that there was a lack of transparency on the part of the Rackman Beit Din, but he is mistaken. The Halachic Principles that guided the RBD were published in the Jewish Week and elaborated in numerous other articles and forums. Much of that material, including a detailed P’sak by RBD Dayyan Rabbi Dr. Haim Toledano z”l, was posted on the www.agunahinternational.com website and is still available there. An open invitation was issued to any rabbi who wished to attend a RBD session. One well-known Orthodox rabbi agreed to attend a RBD session and failed to show up leaving the RBD and several agunot waiting in vain. If there is any blame to be assigned for a lack of maximum transparency, perhaps it belongs to the Orthodox rabbis who barred Rabbi Rackman from speaking about his beit din at their synagogues.
I, along with Honey Rackman z”l, Estelle Freilich and Elona Lazaroff of AGUNAH Int’l, worked hand in hand with the RBD with fact finding and advocacy for the agunot at the RBD. Like Rabbi Rackman, I often found myself silenced at or excluded from Orthodox Jewish feminist meetings and forums. But the Dayyanim of the RBD and we of AGUNAH Int’l felt strongly that our cause was just and firmly rooted in Halachah. Furthermore, despite the scorn heaped on the RBD, agunot were voting with their feet. Though aware of the limited acceptance of RBD annulments, they kept coming for release from their dead marriages. The RBD continued to function until Rabbi Rackman’s age prevented him from continuing to lead the Beit Din.
Rabbi Bigman suggested that the new Rackman-like beit din begin by dealing with agunot who were victims of domestic violence, explaining that such cases were an “obvious” place to begin. But right on cue, other speakers said rulings by such a beit din would not be accepted by everyone. I remarked, from my seat in the audience, that even if only 15% of the Orthodox community accepted this new beit din’s freeing of agunot, seeking a spouse among 15% of the Orthodox community would be a vast improvement for agunot who had been unable to marry anyone at all in the Orthodox community. And the children of those former agunot would be able to seek spouses within that same community. As for the per cent of agunot that would be freed if domestic violence were used as grounds for freeing agunot, well over 50% of agunot would be freed based on my experience as an agunah advocate. If you add pedophilia, adultery and criminal activity as grounds, almost all the agunot I have counseled would be freed on those grounds. And such were the cases that came before the RBD.
But if Rabbi Bigman begins work in earnest toward establishing a beit din, he should be cognizant of the fact that domestic violence as grounds for annulling a marriage is far from uncontroversial. In fact, New York’s Beth Din of America (BDA) emphatically stated in its critique of the RBD that domestic violence is not grounds for freeing an agunah from her marriage. In conversations that I had with one of the BDA rabbis at that time, that rabbi declared that since there are women who stay with men who beat them and since it is usually impossible to prove that a man’s wife beating predilection pre-existed the marriage, it is not Halachically valid to free an agunah on the presumption that she would not have married a wife beater or on the grounds that the husband already had the grave defect of being violent toward his family at the time of the wedding.
I applaud Rabbi Bigman’s suggestion for revisiting the RBD model and would do all I could to work for its success. But I believe that it is a misreading of history to think that greater transparency or limiting annulments to the “obvious” grounds of domestic violence would have secured greater acceptance for the RBD. Perhaps the passage of more than a decade since the founding of the RBD, a decade filled with suffering for agunot that disgraces the Orthodox community, has enhanced the chances for a new beit din’s success.
Professor Ruth Halperin-Kaddari presented research which confirmed what all agunah activists know, that just the potential for Get extortion taints all divorce proceedings in batei din. A woman’s fear of Get extortion undermines her bargaining power even if no explicit threat is made. A solution, like annulment, that completely takes the Get as a weapon out of the husband’s hands is, therefore, essential.
The Beth Din of America (BDA) Prenuptial was again put forward at the conference as a solution for the agunah agony. Unfortunately, it was not explained that the per diem payments that accrue to the benefit of an agunah under the terms of the BDA prenup when a Get is withheld are not automatically hers. The BDA retains the discretion, and has used that discretion, to cancel those payments as part of the “deal” when the husband eventually agrees to give the Get. For insight into this question of the agunah’s ability to collect her per diem money, readers should go the BDA website to study the text of the prenuptial, especially paragraph iii which gives the BDA far-reaching jurisdiction, and to read an article by Rabbi Mordechai Willig about the BDA prenup in the Journal of the Beth Din of America, Spring 2012, Vol. 1, Number 1.
Rabbi Lopatin’s and Rabbi Bigman’s call for a new beit din, raised the hopes of agunah advocates who were brimming with frustration during much of the conference. These two rabbis staked out a courageous position. If their call to action comes to fruition, it will be the second time in a generation that the Orthodox community and rabbinate faces the challenge and promise of backing a new beit din that will bring justice and respect to Orthodox family law. The fate of thousands of women and children, born and yet unborn, is in the balance. Let’s hope the Orthodox community doesn’t fail them again.