The Book of Esther challenges the common sense. Nothing in the Book is as it appears to be. Esther is not just another consort in the king’s harem. Achashverosh is more buffoon than king. Haman assumes he’s in charge, but he’s not. And the people of Persia may believe that Esther (Ishtar) and Mordechai (Morduch) are gods protecting the kingdom, but we, the reader, know better. The common sense of things is all wrong.
It is in this spirit of the Book of Esther that I would like to challenge the common sense regarding agunot – Jewish women held, like Esther, in marital captivity. It is the plight of agunot that we feminist Jewish activists remember on Agunah Day, held today on the Fast of Esther, the day before Purim.
The common sense is that very few Jewish women will ever become agunot—women held in marital captivity because their husbands have not delivered a get (a Jewish Bill of Divorce) to them.
Israeli Rabbinic Courts claim that there are only a handful of “real” agunot in Israel. According to them, a woman is not an agunah if she: does not accede to her husband’s “reasonable” demands in exchange for a divorce, such as hefty financial payouts; has closed her file in rabbinic court due to years of inactivity; cannot prove sufficient grounds for the rabbinic court to order her husband to divorce her (violence, infidelity and abuse are not considered grounds for divorce); the list goes on. Under the rabbinic court’s definitions, it is nearly impossible to qualify as an agunah.
We activists disagree with both the rabbinic judges’ definition of agunah, as well as with the numbers cited by them. We claim that the number of women held in marital captivity runs into the thousands. We argue that there are at least 100,000 women who have been held in marital captivity since the beginning of the state; that there are thousands of rabbinic court files that have been closed with no resolution; that one in three Jewish women who divorces will end up paying for her freedom.
In truth, both the rabbis and we activists all underestimate the number of Jewish women held in marital captivity. The sad truth is that all of us women who marry in accordance with din torah Jewish law are in marital captivity. The common sense may be that Jewish marriage is an act of sanctification – kiddushin – but the legal reality is that the term kiddushin in the context of Jewish marriage means sequestering, or putting aside.
Jewish marriage requires that our husband or ba’al (literally, master or owner in Hebrew) acquire us in a public legal kinyan (purchase) ceremony undertaken at the wedding. In that ceremony, our ba’al procures us before witnesses, obligates to provide us with our minimum needs in the ketubah, and then publically sets us aside for his exclusive sexual use through the act of sequestering, kiddushin. Since we are his possession and his sole, sequestered, sexual property, he, by Torah law, is the only one who can release us from that relationship of his own free will. To release us he must do so with a get, literally a writ of manumission.
Most of us are held by our ba’al in a gilded cage of marital captivity, happy with our choice of masters/owners, oblivious to the legal structure that binds us to them. We are caught in the web of our cultural and family obligations, habits and traditions. Most of us will never have to test our master’s goodwill to release us from the legal bonds that bind us to him. Others of us are not so lucky. Our ba’al can hold us captive for years. Sometimes we can pay him for our freedom. Sometime he sets no price for manumission, and we remain in his captivity forever.
In Israel, the state requires all Jewish women to marry into marital captivity; there is no civil marriage in Israel. To avoid marital captivity, some Israeli Jewish women are now choosing to marry in civil ceremonies outside of Israel. Others will choose to marry religiously outside of the state rabbinate, conditioning their Jewish marriages on their ability to essentially manumit themselves should their marriage fail. Still others are choosing to live in common-law unions with their partners, eschewing marriage with the imprimatur of the state or any religious authority.
Some of these relationships work better than others in avoiding the possibility of marital captivity. The Center for Women’s Justice recommends that all women who choose to marry in accordance with Jewish law sign their halakhic prenuptial agreement, the Agreement for a Just and Fair Marriage. That agreement imagines, as described above, a more just and fair Jewish way to marry.
It is the duty of those of us activists, who can see beyond the common sense, to help Jewish women navigate those alternatives, to unveil the misguiding of the common sense, and to speak out against marital captivity.
For, like Esther, we cannot remain silent. For if we remain silent at this time, relief and deliverance will arise from another place (Esther 4:14).