The Agunah Crisis and “Rabbinic Will”

In a previous post, I wrote that the deferential approach to recognized Torah leaders of our community is often met with resistance within the Modern Orthodox community, and sometimes it is for good reason.  I am not privy to all the details of the Kin Agunah case that unfolded last week in Los Angeles and Israel with the Chief Rabbinate, but, at the very least, the optics were really bad and seemed to indicate a high degree of incompetence on the part of the Chief Rabbinate of Israel.  Understandably this has once again led to calls for systemic solutions to the Agunah crisis and a feeling that the Rabbis are seriously delinquent in responding to this crisis.  There are countless women who are suffering not because of some physical ailment but because of a halacha, a law, a ruling, that is interpreted by human beings and the thinking is that “when there is a Rabbinic will there is a halachic way.”  The argument is that Rabbis are a very creative bunch and if they truly were motivated to systemically solve the problem then they could solve the problem.

In this context, on August 23rd, Rabbi Yoni Rosensweig posted the following on social media: “Sometimes I hear rabbis say that we cannot veer away from our sources, that we don’t have the power to change anything, that those who want to change things are ruining the hallowed institution of Jewish marriage.  I am not insensitive to their concerns – but they are still wrong.

Must a process be handled carefully, and work within the parameters of Jewish law, as handed down over the centuries?  Yes, absolutely.  But fear that we might overstep our bounds, has led us to forsake the very essence of Judaism’s message:  take responsibility.  God is not going to sweep down and help the Agunot.  A heavenly voice will not burst through the clouds and give a new Shulchan Aruch.

It’s us.  Either we do it, or we don’t.”

I agree with his sentiments.  Some traditional Jews love to take pride in the fact that we have survived and thrived in exile for thousands of years because we stood strong, we maintained our traditions and we didn’t simply change, reform, or adapt our religion because of the supposed needs of the time. I disagree with that assertion.  I believe that the strength of Judaism is actually the opposite, that we have adapted, but we adapted the right way. We can point to countless examples in our halachic history when we adapted from the times of Chazal to modern times.  I remember hearing Rav Herschel Schacter saying that Rav Moshe Feinstein was one of the great creative artists of our times, how Rav Moshe Feinstein would creatively take halachic responsibility to solve numerous issues in our days. As an example, within the halachic system, he found ways to invalidate some marriages, whenever he believed possible, in order to allow those women to remarry without a Get.

Rabbinic leaders of every generation must take responsibility for the issues facing their community.  They must adapt, they must think out of the box and they must be bold.  At the same time, they must maintain the integrity of the halachic system.  In regards to the Agunah crisis, under the leadership of Rabbi Mordechai Willig, we have a widely accepted tool that eradicates this problem, the RCA halachic prenup.  It has reputedly been successful in virtually every case of ensuring a timely and unconditional Get.  As Rabbi Shlomo Weissmann, Director of the Beth Din of America, has written: “By embracing the prenup over the past 25 years, the RCA rabbinate has, at least within its own subset of the American Jewish community, effectively vanquished a problem that once seemed unsolvable and that continues to vex so many Orthodox Jewish communities.”  Rabbi Willig was able to secure endorsement for his prenup from Torah giants such as Rav Zalman Nechamia Goldberg, Rav Ovadia Yosef, Rav Asher Weiss, Rav Gedalia Dov Schwartz, and the Roshei Yeshiva from Yeshiva University.  As such, someone who divorces with the help of an RCA halachic prenup can confidently remarry and have children without concern that the children will be considered mamzerim according to halacha.

Unfortunately, not every orthodox community uses the RCA halachic prenup.  For those who don’t, it is true that women are still at risk.  Then the question remains, why don’t we adapt more so that we can end this crisis for every orthodox community?  In response, I can’t imagine any solution that will be accepted by those Rabbis who don’t even support the RCA halachic prenup.  But on a more fundamental level, the question really is not whether we can make changes, but whether those changes are defensible from a halachic point of view and who gets to decide that?  I have written previously that it is my belief that Poskim who are well-versed and clearly recognized Torah leaders of our community in all areas of halacha, not just the “hot button topics,” are the ones who collectively provide guidance on these types of issues.  I have also written that many people within the modern orthodox community have difficulty with this approach, as they believe that some decisions by the modern orthodox Poskim seem arbitrary and illogical.  The Agunah crisis is an example of this phenomenon as many in the modern orthodox community feel that if the Rabbis were just bold enough then they could provide better solutions than the RCA halachic prenup that would fundamentally change the way women acquire a Get.

My hope is twofold.   First, I hope that with the passage of time, the RCA halachic prenup may become more acceptable throughout the entire orthodox community to virtually solve the crisis, although, unfortunately, that may not happen until we witness countless more Agunah victims.   Additionally, I hope for continued and greater communication between the modern orthodox Rabbinic leadership and lay activists on these hot-button issues.  Maybe these discussions will lead to new solutions and at the very least they can hopefully clarify what can be done, what cannot be done and why.

About the Author
Jonathan Muskat is the Rabbi of the Young Israel of Oceanside.
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