Could $10 Million Solve the Agunah Crisis?

Agunah Awareness Shabbat will be marked on March 15-16. Participating shuls will no doubt feature information provided by worthy organizations that support agunot and work diligently to free them from the chains of dead marriages. Here are some of the things we will hear.

• Rabbis will urge us to sign pre-nuptial and post-nuptial agreements. The rabbis will direct us to take responsibility for protecting ourselves.
• Rabbis will encourage us to seek out and support agunot in our community.
• Rabbis will tell us that, if necessary, we should shun, shame, isolate, and excommunicate recalcitrant spouses by applying public pressure on them to do the right thing.

Rabbis will tell us that all of these actions are appropriate within the framework of halacha. In fact, the observance of Agunah Awareness Shabbat is connected to Ta’anit Esther, as one organization explained, because Purim was the time that the Jewish People voluntarily accepted the Torah, and it is within its halachic framework where agunot will find resolution.

It is important for rabbis to publicly proclaim and support the validity and importance of these tactics.  They are worthy of enactment and expansion.  These tactics stem from rabbinic authorities and organizations that are doing heroic work to support agunot and to dissolve toxic, abusive and dangerous marriages. A study cited by an agunah support organization noted that the rate of “high-conflict divorce” is greater in the Orthodox community than in the secular community.  High-conflict indicates the potential for complicated emotional and legal battles, further damaging to agunot. These are women who, if released from bondage, have more love to give, new lives to live and perhaps more children to raise. Every year, because of events like Agunah Awareness Shabbat, it becomes clearer to more of us that lives are at stake.

It is important for rabbis not only to tell us what we should do, but also to tell us what they are doing. They are the communal leaders, role models, and Torah teachers who are painfully aware that some marriages in our community are poisonous and that get-refusal is abuse. Yet they deflect the responsibility to resolve the agunah quandary onto the community, lulling us into a belief that the burden of helping agunot is exclusively upon us by employing these coping mechanisms rather than for the rabbinic leadership to take it upon themselves to find a cure.

There are some Batei Din (Rabbinic courts) that are wrestling with this and have been flexible and creative, risk-taking, and daring in applying halachic methodologies to rescue agunot. Some of the activist leaders of these efforts have found their reputations permanently scarred because of the heroic stances they have taken to give women and families new lives. Still, virtually all of these efforts are bounded by current halachic understandings of a Torah law that leaves the ultimate power of divorce with the husband.

There is ample precedent for altering Torah law – as illustrated in the Torah itself – when a different perspective was presented based on a solid rationale, offered with respect, and motivated by devotion to Hashem and a desire to establish communal peace.

• The daughters of Tzelafchad sought their dignity and personal responsibility by claiming their own stake among the Jewish nation. They asked Moshe to reconsider the Torah’s inheritance laws that excluded them. A quick consultation with Hashem yielded immediate approval.
• Jews who had been liberated from Egypt were told that due to certain circumstances, some of them would be excluded from celebrating Pesach. They approached Moshe with their desire to show their devotion to Hashem and to have an equal share in the national observance. Hashem agreed with their wish and accommodated them with Pesach Sheni (a second Passover).
• As the nation of Israel was about to set foot in the land of Israel after 40 years of striving to reach this point, two of the tribes approached Moshe and made the case that their lives would be better if they stayed on the east side of the Jordan. They expressed their allegiance to the Jewish People by pledging to help conquer the land and only then to take up their lives in their hoped-for new homes. Moshe agreed to change the Torah-directed trajectory of those tribes.

In each case, these Jews never removed themselves from the fate and destiny of the Jewish People. On the contrary, it is because they wanted to deepen their connection to Hashem and the Jewish People that they sought a change to Torah law as originally established.  Thirty-three hundred years later, Agunot exhibit the same fealty to Hashem and the Jewish People. If they believed otherwise, they would not be agunot; they would leave and get on with their lives.

Other evolutions of Torah law have occurred as worldly events reshaped the way we apply them.  The Heter Iska allows charging and collecting interest.  The Prozbul allows debts to carry over past the Sh’mitah (Sabbatical) year.  The Heter Mechirah allows working the land of Israel in a Sh’mitah year.  We sell our chametz so we may eat it after Pesach, and we erect eruvim so that we may carry on Shabbat.

Even regarding divorce – the Torah does not require the willingness of a wife to accept her get. Rabbinic amendment of that law does.

Once upon a time the Greek occupiers of Israel fell upon 1,000 Jewish rebels on a Shabbat, threatening to kill them all. In observance of Shabbat, those Jews did nothing to defend themselves. They were all slaughtered. This led to an evolution in halacha over time, first to allow Jews to defend themselves if attacked on Shabbat, then to prepare for war on Shabbat, and ultimately to take preemptive action on Shabbat.

Adherence to the current understanding of halacha regarding an abusive husband’s control of the get procedure seems as self-destructive as the Shabbat observance narrowly interpreted by those proto-Maccabees who thought they were doing the right thing, only to be needlessly massacred.

It is said that today there are more people learning more Torah in more places than at any time in history.  Can we harness some of that sublime and sophisticated knowledge to focus exclusively and for as long as necessary to advance new approaches to resolve this deep and disturbing agunah problem?  What an inspiration it would be to be tasked with applying one’s intellect, experience, curiosity, and ingenuity to solve one of the most seemingly intractable and certainly consequential halachic dilemmas of all time.  Imagine what might happen if a $10 million prize were offered to the yeshiva, Beit Din, think tank, or crowd-sourced consortium that plunges into the deep life-affirming wellspring of Jewish wisdom and produces a new, sound rationale for advancing Torah interpretation, removing all get-giving power from an abusive husband, and granting it to Jewish courts? Nullifying a wedding would no longer be necessary, neither would coercion or paying a ransom.

There is so much brilliance among the scholarly leadership of the Jewish People that might be unlocked and applied to reach a new understanding of how court-directed divorce may be achieved in a situation where the marriage is clearly over. The parties are physically separated; a civil divorce might even have been completed. The recalcitrant husband has been outed publicly. In these situations, it must be abundantly clear to Hashem and to the beit din shel malah (heavenly court) that there is no kiddushin left in this marriage. Perhaps a $10 million reward might lead to a new idea that will enable a beit din shel matah (earthly court) to see it the same way. A beit din that will apply untapped Torah genius to promulgate a new halachic understanding of how divorce may be effected in such situations without the participation of the abusing spouse.

The weight of this issue needs to be shifted off of the backs of women and onto the shoulders of our rabbis. That is why Agunah Awareness Shabbat should also include a public progress report by every rabbi about what that rabbi is doing to contribute to, or to support the development of a new halachic approach.  This is an issue where rabbis not only tell us what to do, but themselves accept a high level of accountability in publicly demonstrating that they are assiduously attempting to solve this problem.

Perhaps soon we will mark Agunah Awareness Shabbat in conjunction with Purim not because the Jews of Shushan accepted the status quo, but because it was Esther who risked her life to change it.