The right, the good and Agunah advocacy

Some days ago, I had the distressing but meaningful opportunity to participate in a rally in support of Esther, a woman who has been chained since 2018 by Chaim, her halachic husband who refuses to give her an unconditional gett. The peaceful demonstration was organized by ORA, the Organization for Resolution of Agunot. Dozens stood outside of Chaim’s home, asking him to grant freedom to Esther and reminding him that it is unacceptable to make Esther (or any other human being, for that matter) go through such torture and abuse. 

While the rally was painful in many ways, to me, confronting counter-protesters was the most enlightening aspect of the protest. These individuals had several pseudo-halachic arguments to defend Chaim’s gett-refusal and to incriminate the protesters and ORA for creating invalid gittin and causing the birth of mamzerim (offspring of a married woman and a man who is not her husband). 

First of all, it is crucial to address the fallacy of their arguments. Yes, indeed, a coerced gett is halachically invalid (Yevamos 106a). Halacha demands that the man should give the gett willfully and that no one but him or his emissary can deliver it into the wife’s hands. There are some extreme, exceptional cases where a Jewish court can force a man to give a gett to his wife. He can be physically or monetarily punished until he gives a gett (see Kesuvos 77a and the commentaries’ minimalist and maximalist applications of these cases). But even in these situations, he still has to verbally express his willingness to give it by saying “I want to give it.” In other words, it seems that Halacha does not hold that coercion is an absolute contradiction to free will. (From a deeper perspective, as noted by the Rambam, external pressure is what allows the husband to uncover his essential pure nature and desire to do the right thing, which is to give the gett.)

However, in the great majority of cases, Halacha does not allow forcing the husband to give a gett, even if the beis din rules that he should give it (i.e., when certain halachic criteria are met and the need/desire for a gett is legitimate). In these cases, other measures can be taken to motivate him to sign it and give it (additional penalties can be imposed on him if he refuses to appear before the beis din after being summoned). In other words, pressure can be exerted to encourage someone to comply with the beis din’s orders (see Gittin 88b and Even Haezer 134:5). Exerting halachic pressure is motivating an individual through external factors to decide to give the gett. 

This is where the harchakos deRabbeinu Tam come into place and where ORA attempts to help women within the sacred daled amos shel Halacha (see Even Haezer 154:21). Rabbeinu Tam wrote that if the request for a gett is justified, the beis din can command members of the community not to grant benefits or favors to the gett-refuser. According to Rabbeinu Tam, as long as the husband’s body and property are not injured and he is not officially excommunicated, this type of societal pressure is not considered coercion. In support of Rabbeinu Tam’s view, the fact that these types of protests are not always immediately effective, proves they are not mediums of coercion. If in fact Chaim had been coerced, he wouldn’t have had the choice but to sign the halachic divorce then and there. We witnessed that while societal pressure can move someone’s nekudas habechira (point of free will), the choice remains theirs. Just as we would say that if the gett-refuser was celebrated and given honor because of his conduct, he still would have bechira to give the gett, even though he might be less motivated to do so. Social ostracization and public shaming might make the decision easier, but the decision still has to be made by the person.

Conversely, there are those who conclude that societal pressure is a way of coercion. The Chazon Ish (Even Haezer 108:12) writes that the Rashba (among others) did not believe that Rabbeinu Tam’s social distancing measures were an halachically valid form of pressure. While the opinion of the Chazon Ish is rooted in the view of earlier poskim, it is important to know that the halachic consensus is to accept Rabbeinu Tam’s harchakos. Firstly, because that is the accepted ruling in the Shulchan Aruch, the code that generally reflects the mainstream pesak in contemporary Jewish practice. This is reflected by the fact that many later poskim, such as the GR”A, the Aruch Hashulchan, the Tzitz Eliezer, R. Ovadya, among others, accept the validity of this type of social marginalization. Moreover, even the Chazon Ish concludes that if a person gave a gett under societal pressure (as long as he was not officially excommunicated) the gett is valid ex post facto. Lastly, on a public-policy level, R. Moshe Shternbuch stated that it’s proper to be lenient and to accept these measures of exerting pressure to protect the institution of Jewish marriage and women in vulnerable positions. He explained that while being stringent (like the Chazon Ish) seems easy and safe, not doing anything to push husbands to give a gett will leave women as agunos forever. Moreover, in our days doing this is “a stringency that will lead to a leniency”, since it could easily result in situations of technical adultery. If done in a proper way, these harchakos can save several women from their imprisonment (Teshuvos Vehanhagos 5:344). 

Having said this, Gittin (divorces) is one of the most delicate areas of Halacha. Violations of aishes ish (infidelity) and births of mamzerim are issues of extreme severity. Naturally, the reality of human free choice is hard to gauge, so honest and righteous talmidei chachamim must debate what are the parameters of halachic pressure versus anti-halachic coercion. 

At the same time, I do not think that this legitimate concern justifies the halachic position Chaim and his supporters are taking. I don’t believe these fellows are honestly “erring on the side of caution.” At least Chaim himself is unable to make such a judgment since he is a “noge’ia bedavar” (a stakeholder in the issue). So what is their motivation? I can’t say for sure, but I believe the answer might be found in a discussion between Hashem and Moshe recorded in the Medrash (Bereshis Rabbah 8:8). Moshe had to write the Sefer Torah, letter by letter as Hashem had dictated it to him. However, once they got to the verse “Let us make man” (Bereshis 1:26), Moshe protested. He did not want to encourage the heretics to argue that the Torah is implying there is more than one deity, since regarding the creation of man, the verse uses the plural form “let us” (anyhow, the commentators address this textual anomaly in theologically sound ways). Hashem told Moshe to write exactly as He had dictated, comforting him by letting him know that if the heretics wanted to claim that there is more than one God, they will find a way to make that claim. In other words, we can’t worry about the fact that our perfect Torah might be subject to misguided individuals who will distort it. This is I think the case of the pseudo-halachic arguments that validate gett-refusal and disqualify any form of pressure to encourage an individual to make the right decision. We often see how corrupt individuals take the most pristine truths and corrupt them shamelessly. 

Shifting away from the technical halachic debate, I want to move on to a more fundamental question. Let us say for one second that all the “halachic” arguments in favor of gett-refusal and against the validity of societal pressure as a means to incentivize the signing of a gett were valid. Granted, you think that you are halachically entitled to not granting a gett under those conditions. However, when you think about “what does Hashem your God ask from you?” (Devarim 10:12), is your selfish attitude toward another human being what comes to mind? Do you think you are the exemplary model of “You shall do what is right and good in the eyes of God” (Devarim 6:18)? Are you, the person who has made a woman’s life miserable for years, the person Hashem has in mind when He says “Yisrael, through you I will be glorified” (Yeshayahu 49:3)? 

Interestingly, Yeshayahu (3:10,11) speaks about a “good tzaddik.” The Gemarah (Kiddushin 40a) obviously questions, aren’t all tzaddikim good? The Gemarah answers that a “good tzaddik” is good to God and to other human beings, while the “evil tzaddik” is only good to God. This person seems like a very scrupulous person when it comes to his relationship with God, yet weak in his “bein adam lechavero” (interpersonal relationships). The Beis Halevi asks the obvious question: how could the “tzaddik ra” be considered good in terms of his relationship with God? We know that a significant part of the halachic-religious obligations God has given us are obligations towards others. Just as He commanded us to pray, to eat kosher and not to wear kilayim, He commanded us not to steal, not to hold a grudge and to give tzedakah. How can someone be considered loyal to God if he is only compliant with his “bein adam leMakom” (mitzvos between the person and God) obligations? The Beis Halevi concludes that it’s absurd to think that this can be the case. Of course, the “evil tzaddik” being that he is good vis-à-vis God, is rigorous in the observance of all the Torah laws, both between him and God and between him and his neighbor. Yes, this person is very halachic. He has a mareh makom (source) to support every action he takes. Yet while he strictly observes the Law, he neglects its spirit. While he keeps every halachic minutiae, he acts selfishly and insensitively. He does everything right, yet he is seriously wrong. 

A similar idea comes out from the passage that states that the Temple was destroyed because they adjudicated court cases according to the Torah Law (Bava Metzia 30b). What could have been wrong with the implementation of a Torah justice system? Very simple. They wanted everything to be according to the strict letter of the law. They were not willing to forego a mistake, to compromise, to think about the implications for the other side, to consider the broader Torah values that emanate from the Halachic system. They were halachically on target, yet in terms of doing “What Hashem asks from you” they were missing the mark. Yes, in fact, “The ways of God are perfect. The righteous walk through them, while the evil stumble in them” (Hoshea 14:10).

While the Ramban argues that there might be someone who is “despicable with the Torah’s permission,” in reality, the Torah never allowed us to be despicable. Embedded within the system of Halacha, we have the obligations of being holy and doing what’s good and right before God. This means that even if in particular cases Halacha might be abused against God’s desires, a priori  Halacha dictates us to do what’s right. Be honest with yourself: are you deceiving yourself with a yetzer harah that’s dressed like a talmid chacham (see Chullin 91a)? 

The Torah defines the prohibition of making someone stumble and sin as putting a stumble block before the blind. The Rambam explains that all sin and divergence from the unadulterated divine will is a form of blindness (Sefer Hamitzvos, Negative Commandment 299):  “The prohibition [of placing a stumbling block before the blind] also includes helping someone to sin or enabling him to sin. He will make this person let the ‘eye of his intellect’  be blinded by his lust and he will become blinded and seduced.” 

He who opens the eyes of the blind should allow Chaim to see clearly. He who opens the eyes of the blind should give us all the nitid and honest vision to live lives of holiness, uprightness and goodness, to serve Him with truth and a pure heart.