Agunot, recalcitrant husbands, and their many accomplices

Tamar Epstein became an agunah — a woman tragically chained to a defunct marriage — when her husband, Aharon Friedman, unscrupulously and vindictively refused to grant her a get, a Jewish religious divorce.

The case — similar to a scandalously large number of similar situations involving “chained” women and recalcitrant husbands — received intense public scrutiny in part because Mr. Friedman was a staff aide to a member of the U.S. House of Representatives. Rabbinic suasion and public excoriation nevertheless failed to move this particular recalcitrant to fulfill his religious obligation and terminate his marriage in accordance with Jewish law and morality. The couple’s marriage had already been dissolved in civil court.

Ms. Epstein recently has entered upon a new marriage in a ceremony solemnized by a prominent Orthodox rabbi. Her marriage to Friedman was annulled — or, more accurately, declared to have been invalid ab initio — by (as of the publication of an article on the case in the Forward) an as-yet-to-be-identified Orthodox rabbi in Philadelphia. I wish Ms. Epstein and her bridegroom, Adam Fleischer, much happiness and mazal tov — and I wish to express profound admiration and support for my anonymous Philadelphia colleague. As the Almighty promised His covenant partner, Abraham: “Your reward will be very great” (Genesis 15:1).

Sadly, many in the Jewish community will disagree.

In its recent article, the Forward quoted Rabbi Aharon Feldman of Baltimore’s Ner Israel Yeshiva as calling for the former agunah (whose original marriage, and therefore whose status as an agunah, he deems to remain intact) to leave her new husband. Rabbi Feldman declares any future children born to the Fleischers to be mamzerim — “bastards”— themselves forever debarred from marriage to “legitimate” Jews. Rabbi Dovid Eidensohn similarly is quoted as describing the dissolution of Ms. Epstein’s first marriage as “a sad joke based on a clear corruption and misuse of halachic principles,” and declaring Ms. Epstein an “adulteress.” An organized effort (likely to exceed in volume and vitriol even the considerable campaign to persuade Mr. Friedman to grant a get in the first place) is underway to reject the Philadelphia-based annulment, to discourage like-minded rabbis from similar findings of law, and to deny the legitimacy of any such rabbinic actions that might be taken in the future.

Aharon Friedman bears responsibility as the perpetrator in this tragic situation. Not his former wife, not her new husband, not the rabbi who performed their wedding, nor the rabbi who issued the annulment that made it possible. Men who willfully create agunot out of spite or anger or hate or humiliation or base cruelty, or simply to assert continued control or to cause pain to the women they once loved, are villains.

They are perpetrators of evil.

They are the wrong-doers.

They have many accomplices.

Rabbis and rabbinic courts legitimately may conclude that a woman was led to enter into a marriage under false pretenses, or as a result of deception, or because of the willful concealment of a bridegroom’s flaws. In such a case, they are duty-bound to render a finding of “mekach ta’ut,” declaring that the marriage never achieved the honest meeting of minds required to establish matrimony. In such cases, the marital state never was entered. Certainly, there was no “kiddushin” — no sanctified and binding marriage. Although, out of an abundance of caution and theological humility, it always is preferable to terminate even such a putative marriage with a get, no woman, upon such a finding, is rendered an agunah by a recalcitrant husband.

Where mekach ta’ut is documented, no marriage ever existed, and no divorce is required. This is a well-established — if scandalously neglected — principle of Jewish law. Rabbis who have the religious training, scholarly credentials, and moral authority to annul marriages but do not do so are complicit in creating agunot. They abet recalcitrant husbands in chaining their wives.

When rabbis do find halachic grounds to release an agunah from her chains so she may remarry, they are attacked and rejected, marginalized and demonized by the rabbinic and religious establishment. This dynamic animated a telling statement 75 years ago by Ashkenazi Chief Rabbi Isaac Ha-Levi Herzog, father of the late Israeli president Chaim Herzog and grandfather of his namesake, the Israeli opposition leader M.K. Isaac Herzog. Rabbi Herzog ruled that a get be written for a woman in World War II-era Germany, though there was only minimal evidence of her husband’s authorizing the divorce. The husband was unavailable, as he was behind enemy lines in Vichy France. Herzog instructed that the rabbis, scribe, and witnesses involved in issuing the get keep the matter as quiet and private as possible:

“For two reasons: There are those who just love to savage each other in halachic debate.” L’nage’ach b’halachah — literally, to gore each other with Jewish law. “If word gets out, they will start discussing and analyzing this weighty matter in all the institutions of sacred learning, and we will not come out of this incident in one piece! Secondly, we must be concerned about those zealots of the well-known type, those grandstanding narcissists who love to find fault just to demonstrate their own erudition, with no concern for the plight of a suffering Jewish woman. Then there are those whose intentions are for the sake of Heaven, but who are unaccustomed to the implications of ruling in real-life situations, or to whom stringency and prohibition is always the preferred course.”

Those who second-guess legitimate permissive rulings by recognized halachic authorities in matters of family and marital law have failed to heed the counsel of the late chief rabbi. Those “of the well-known type” who attack and reject, marginalize and demonize. Those who strive to intimidate colleagues who do act on behalf of “suffering Jewish women” are complicit in creating agunot.

They abet recalcitrant husbands in chaining their wives.

In addition to the principle of “mekach ta’ut,” the Talmud also asserts the far more controversial power of the rabbis to annul marriage (with cause) as an exercise of sheer authority. This extraordinary power is based on the premise that every Jewish marriage is contracted on rabbinic authority, and that the rabbis retain the concomitant prerogative to undo the marital bond unilaterally. The Forward quotes an anonymous Orthodox source as stating that this rabbinic power “has never been used in modern times.” This is untrue.

While the exercise of such sweeping rabbinic authority should be used rarely, only as a last resort, and with the utmost discretion, the Joint Bet Din of the Conservative movement does just that. Rabbinic authorities who not only delegitimize this mechanism of marital dissolution but who reject those who rightfully and courageously wield this power, on the basis of partisan religious politics alone, are complicit in creating agunot. They abet recalcitrant husbands in chaining their wives.

As a Conservative rabbi, it pains me to say it, but the efforts of the Joint Bet Din to free more agunot are impeded not only by the partisan attacks of our detractors, but by the religious laxity of some among our supporters and constituents. There are traditional, knowledgeable, pious Jewish women — including some affiliated with Orthodoxy — who would come to Conservative rabbis for relief from their status as agunot. They are dissuaded from doing so, however, by the fact that those authorities serve a constituency often lacking a fundamental commitment to Jewish law and observance. This leads observant agunot to neglect an invaluable (perhaps exclusive) resource for legitimate halachic relief. Conservative Jews who champion egalitarianism and pay lip service to the religious enfranchisement of Jewish women — yet whose personal halachic disengagement undermines the stature of their rabbis as religious decisors — thus are complicit in creating agunot. They abet recalcitrant husbands in chaining their wives.

Rank-and-file Conservative Jews best serve the cause of agunot by rededicating themselves to Torah and mitzvot, by renewed devotion to the discipline and details of daily religious observance. Indignation and protests — as, too, editorials — are far less effective!

Conservative rabbis and rabbinic bodies themselves are not without complicity in the creation of agunot. Too many individual Conservative rabbis value gratuitous innovation and their independence as mara d’atra (the uncontested religious authority for their own local communities) over halachic authenticity. They, too, contribute to an atmosphere inhospitable to those agunot who are in the most desperate need of precisely the principled halachic approach that characterizes the Joint Bet Din’s handling of Jewish family law, divorce, and annulment.

When Conservative movement leaders, policy makers, and halachic decisors subvert fundamental principles of normative Jewish law, when they routinely legislate sweeping change in Jewish ritual and Jewish moral principles, when they dramatically impact matters with direct bearing on personal status and Jewish identity, they make it all but impossible for many committed members of the Jewish community to take us seriously enough to entrust their marital status, their spiritual well-being, and the future of their families to our halachic care. The actions of such rabbinic authorities frequently are intended to serve the cause of Jewish women, or more fully to include those whom they perceive to have been marginalized in Jewish life.

In fact, they do so at the expense of those women who have been left most vulnerable by the halachic system. Conservative rabbis and rabbinic bodies who pursue a program of unchecked halachic legislation and radical innovation thus are complicit in creating agunot. They abet recalcitrant husbands in chaining their wives.

Ultimately, recalcitrant husbands themselves are responsible for the suffering of the agunot they willfully and cruelly create. Though every avenue of moral suasion, public excoriation, and communal sanctions should be exploited in order to impel such men to do the right thing, some will never change their selfish ways, or their poisoned hearts, or their self-absorbed minds. This tragic fact makes it all the more critical that those who are (so often unwittingly) complicit in creating agunot selflessly alter their own course. This includes those who — out of fear of marginalization and savage attack by rabbinic colleagues — fail to act on behalf of agunot. This includes those rabbis who wield halachic prohibition indiscriminately, without concern for human consequences. This includes those who — however pure their motives — second-guess, critique, and undermine principled rabbis who act decisively on behalf of agunot, creating a toxic atmosphere of judgmental religious divisiveness and contested personal status. This includes those whose negligence in the realm of personal religious observance, as a wholly unintended consequence, undercuts those rabbinic bodies prepared to wield the rabbinic power of annulment. This includes those rabbis and rabbinic bodies who, in keeping with their sincere, progressive vision for the Jewish people, pursue a sustained pattern of significant departures from the historic, normative path of Jewish law and tradition, thereby squandering their standing as halachic decisors — and squandering, collaterally, the standing of those who might otherwise be in a position to offer legitimate halachic relief to agunot.

Recalcitrant husbands have many accomplices. If those complicit parties cannot summon the will to change their ways, then they, too, are rendered agunot. Despite readily available remedies, they remain tragically and scandalously chained to an unproductive and disappointing past, powerless to act, debarred from building the happy and sanctified future to which we are all entitled, a future that they have denied to others who sought their understanding, and who deserved all the wisdom and moral fortitude the Torah and its authentic interpretation have to offer in such abundance.


About the Author
Joseph H. Prouser is rabbi of Temple Emanuel of North Jersey (Franklin Lakes, NJ) and a practicing Mesader Gittin. A former member of the Joint Bet Din of the Conservative Movement and the Rabbinical Assembly Committee on Jewish Law and Standards, he currently serves as editor of Masorti: The New Journal of Conservative Judaism.
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