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A horrible rabbinical mistake!

The mistreatment by too-many rabbis of women is inexcusable. Many alterations were made in biblical marriage and divorce laws, but not for agunot.

The Hebrew Bible gives few details about marriage and divorce. Deuteronomy 24:1 states: “If a man takes [yikach] a wife and has sex with her, but she becomes displeasing to him because he found something wrong, he should write a bill of divorce for her, place it in her hand, and send her from his house.”

The Bible says a man “takes” the woman and has sex with her. The rabbis recognized that in ancient biblical times, women became wives by men having sex with them. Men perform this act; men consummate marriages; women are passive, only accepting the wedding. It is the same with divorces: men write divorce bills and hand them to wives with no female role other than to receive the document.

The rabbis revolutionized these ancient practices, but not nearly enough. They realized that the biblical marriage practice was appalling,[1] so at the beginning of the Common Era, they added two substitute ways to marry: by giving the woman something of value, such as a ring or even a penny, or a document saying that the two are married. In the eleventh century, Ashkenazic rabbis[2] established additional rules that men can usually only marry one wife, monogamy, and the divorce is ineffective if the wife refuses to accept the divorce bill. They did not amend the practice that only men marry and divorce while women can only accept what is given to them.

As a result, there are many Jewish women whose husbands left them and refused to give them a bill of divorce, called a get in Hebrew. Many of these men refused to provide the get because of their despicable need to get revenge on the woman they once loved. Since they were not given the get and were not allowed to initiate a divorce, the wives remained married to their vengeful husbands and could not remarry. But the rabbis permitted the hurtful husband to marry another woman because, in ancient times, a man could have more than one wife. This permission ignored the rabbinical enactment of monogamy and Rabbi Akiva’s position that the Biblical rule of “Love your neighbor as yourself” is the basis of the Torah, meaning, do not do to others what you do not want them to do to you. Some of these husbands even blackmailed their wives, saying, “I will not give you a get unless you give me…” – frequently, this demand is hundreds of thousands of dollars. This rule also disallows women whose husbands disappeared from remarrying because they did not get a get. Women who are kept from remarrying by these husbands are called “chained” women; agunot in Hebrew, the singular is agunah. They are only freed when their husbands die. It is an understatement when we call this a terrible situation!

Rabbis justify their claim that they cannot change the rule because the tradition has existed for millennia. But there are good reasons why the law should be changed. First, as we saw, many other aspects of marriage and divorce were modified; why shouldn’t this rule also be changed. Second, human decency – the pain suffered by thousands of women – requires the annulment of the old tradition. Third, there is a recognized principle that some statements in the Torah reflect the situation of the time, such as laws involving slavery and sacrifices, which are transformed as civilization and culture advance. Eve’s punishment in Genesis 4:16 “your desire will be toward your husband and he will rule over you,” describes male/female relations in ancient times and in parts of the world today, but is certainly not desirable in civilized societies today.

Rabbi Dr. Daniel Sperber

Daniel Sperber pointed out in his Relationship of Mitzvot between Man and his Neighbor and Man and his Maker that when there is a clash between commands of these two categories, man and God, the interpersonal human concerns should generally override the ritual one. Indeed, he asserts, this is what God wants.

The Rabbinical Council of America

On June 20, 2013, RCA, the organization of over 1,000 Orthodox American rabbis, of which I am a member, took a giant step to resolve this problem. While they did not change the agunah law, they sent their rabbis a proposed “Prenuptial Agreement for the Prevention of Get Refusal.” Under the Agreement, husbands are subject to hefty fines if they refuse to give a get. The RCA instructed its rabbis that they should not “officiate at a wedding where a proper prenuptial agreement has not been executed.” Unfortunately, this step has not yet been accepted by Israeli rabbis and ultra-Orthodox rabbis in America.

Rabbis Rackman, Hartman, and Soloveitchik

Rabbi David Hartman addresses this problem in his book The God Who Hates Lies: Confronting and Rethinking Jewish Tradition, Jewish Lights Publishing, especially in chapter 5, “The Mistaken Halakhic Presumptions of Rabbi Soloveitchik.”

Hartman stresses that the problem has remained unresolved because even in modern times, “the Orthodox Jewish community, broadly speaking, have coalesced around a conviction that change per se is destructive to the halakhic [legal] system, which must be preserved in the greatest extent possible” even when “moral intuition, logical argument, or observed realities serve as valid bases for critiquing inherited halakhah.” This “Halakhic permanence demands the sacrifice of human moral and logical faculties. In exchange for the stability of an eternal dimension removed from history, the needs of the present and concerns of the future always play a secondary, sacrificial role in halakhic consideration.” Human nature and feelings, as well as morality, are ignored.

Hartman states that Rabbi Emanuel Rackman offered a sensible solution to the agunah problem that complied with halakhah. “The solution Rackman proposed was a form of retroactive marital annulment, based on the model of the ‘mistaken sale’ – monetary transactions annulled for lack of full disclosure by one of the parties. Since in marriage, as in sales, full consent is required by both parties, withholding information by one compromises the other’s consent. ‘Concealing an important fact in selling a piece of property can justify the annulment of the sale. The same argument can be applied about a marriage.’” The woman would not have married the man if he disclosed how he would act when she wanted to divorce him. The Talmud recognized the logic of this argument and would have allowed it to be the basis of annulments and saving an agunah from years of enslavement but disallowed it on another ground: “the general presumption that women prefer any marriage at all to being alone,” even marriage to a leper or an abusive husband is preferred by women than living alone.

“Rackman proposed an appropriation of this logic of annulment, with a critical amendment in its application based on an updated presumption about women’s preferences.” Rackman “acknowledged that the mindset of preferring a bad marriage to no marriage may have been common among Talmudic women” for the woman who was left alone was lost in the society of the times and perhaps even in danger. But, Rackman “concluded simply, ‘In our day, it is no longer true.’” True, a presumption, called halakha in Hebrew, is a prediction about nature in the Jewish legal system, in this case, human nature. However, this presumption is outdated and should be ignored, and the “mistaken purchase” annulment should stand as the solution to the terrible problem of the “chained wife”

Unfortunately, Rabbi Joseph B. Soloveitchik, who the RCA respected, nixed Rabbi Rackman’s argument in 1975. Therefore, Rabbi Hartman writes, RCA not only harmed the all-to-many chained wives but also placed the women and Judaism generally in suspended animation. Rabbi Soloveitchik was then and is still today considered an accepted authority on Jewish law among Modern Orthodox Jews. He was entitled to his opinion, and his view should be respected, but should Judaism follow it when it does so much harm? Aren’t Jews violating the Torah laws of love and respect for others today when they fail to act? Can’t a solution be found that complies with halakha?

Rabbi Soloveitchik insisted that the ancient presumption still applies today. He claimed that once Judaism recognizes a presumption, it never changes. Women today and women 8,000 years from today, would prefer to live with a leper and abusive husband rather than live alone. He stressed that, in his opinion, Torah requires Jews to passively surrender to God all “mercantile logic, or the logic of the businessman. Or the logic of the practical person…. And secondly, we (must) also surrender the everyday will.”

Rabbi Soloveitchik insisted that it is wrong to suppose that modern people can “discover an interpretation of Torah which is completely new. It’s ridiculous.” He stressed the need for faith over logic, even if it is, as he and the Protestant theologian he admired called “a leap of faith,” a jump far beyond reason. Surprisingly, he overlooked that the Talmud tells us the different opinions of the Talmudic rabbis on virtually every Jewish law and other matters and he says that the “acceptance of the infallibility of Talmudic Rabbis (is) a Halakhically ordained leap of faith.” Rabbis, he insisted, do not make mistakes and we must “surrender” to what they say.

Hartman questioned the logic of this approach with a story of a yeshiva student who put on a heavy wool coat at Lakewood Yeshiva when the outside weather was over one hundred degrees. When asked why he did so, the boy explained that this was the practice in his European hometown. He refused to acknowledge that the European Jews in that town were suffering from the cold while he was sweltering in the heat. Similarly, to imagine that a female CEO with a Ph.D. earning millions would prefer to be tied to an abusive husband who hates her is absurd. This is not only true of such a woman; it is true of most women today. Thus Rabbi Rackman’s solution should be revisited. Judaism must not insist that wives remain in frozen, suspended animation. The chained wives must be released. To do otherwise is cruel and horrendous!

[1][1] The ancient biblical practice remains as a vestige in the modern marriage ceremony. The couple is married under a canopy which symbolizes the room where the couple had sex, and Orthodox Jews require the couple to seclude themselves in a room for about a half hour after the ceremony under the canopy, again symbolizing the time they had sex.

[2] Rabbis in predominately Christian countries in contrast to those in Muslim lands, called Sephardim.

About the Author
Dr. Israel Drazin served for 31 years in the US military and attained the rank of brigadier general. He is an attorney and a rabbi, with master’s degrees in both psychology and Hebrew literature and a PhD in Judaic studies. As a lawyer, he developed the legal strategy that saved the military chaplaincy when its constitutionality was attacked in court, and he received the Legion of Merit for his service. Dr. Drazin is the author of more than 50 books on the Bible, philosophy, and other subjects.
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