Shira Pasternak Be'eri
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What the daughters of Zelophehad can teach us about agunot

When humans can't figure out how to apply God's law, relying on principles of compassion and equality can't go wrong
Illustrative. (Pixabay)
Illustrative. (Pixabay)

The story of the daughters of Zelophehad — five wise, courageous, and righteous women — began in last week’s Torah portion of Pinchas and reaches its conclusion in this week’s portion of Masai.

A year ago, I spoke about these biblical trailblazers at the bat mitzvah celebration of my cousin, Yael. When I began preparing my speech, I thought I would speak about the sisters — Mahlah, Noah, Hoglah, Milkah, and Tirtzah — as feminist role models. As I delved into the sources, however, I realized that they were champions of social justice in a broader sense. And by the time I had finished, I had discovered that their story is relevant to the plight of contemporary agunot and mesuravot get — women chained in marriages because their husbands cannot or will not give them a Jewish bill of divorce.

At the start of Parshat Pinchas, after a census that tallied the men of the tribes in order to allocate portions of the Land of Israel to them, the daughters of Zelophehad realized that no one was going to inherit a portion from their late father. They approached Moses, Eleazar the priest, the chieftains of Israel, and the entire congregation, and bravely questioned the existing practice. “Our father died in the wilderness,” they asserted, pointing out that he had not been part of Korah’s faction and had died of his own sin. “Let not our father’s name be lost to his clan just because he had no son! Give us a holding among our father’s kinsmen,” they implored (Numbers 27:1–4).

The Talmud (Baba Batra 119b) deems the daughters of Zelophehad “wise” because of the timing of their question, which they asked when Moses was teaching the laws of yibum (the levirate marriage). These laws mandate that if a married man dies before having children, his brother must marry his widow, so as to provide children, lest her husband’s name be “wiped out in Israel.” Zelophehad’s daughters saw their situation as analogous, and asked why their father’s name should be lost because he had no sons. “If we are considered to be like sons,” they argued, “then we should get an inheritance; if we are not, then the laws of yibum should apply to our mother, since it is as if our father had no children at all.” The logic of their case was impeccable.

Rather than answering them himself, Moses referred the revolutionary question to God. “The plea of Zelophehad’s daughters is just,” God replied. “You should give them a hereditary holding among their father’s kinsmen and transfer their father’s share to them” (Numbers 27:6–7).

Rashi explains that God told Moses that the demand of the daughters corresponded exactly to the way this chapter of the law was written before God on High. Rashi then adds:

This teaches us that their eyes saw what Moses’ eyes did not see.

What did the daughters of Zelophehad see that Moses did not? According to the Sifrei, what they saw was not just a lacuna in the laws of inheritance, but a social injustice that demanded compassion. When the daughters heard that the Land of Israel was to be apportioned to the men of each tribe and not the women, they gathered to consult with each other, and said:

God’s compassion is not like the compassion of flesh and blood. Flesh and blood have more compassion for men, but God, who created the world with speech, is not like that. God has compassion for men and for women; God has compassion for all. (Sifrei, Numbers 133)

According to the Sifrei, there is a difference between the way that God relates to men and women and the way that society relates to them. Drawing proof from the verse “God is good to all and His compassion extends to all His creations” (Psalms 145:9), Zelophehad’s daughters understood that, in God’s ideal society, men and women are valued equally. Accordingly, they could not accept that their father’s name would be lost to his family simply because the laws of inheritance favor men. This situation demanded compassion — whether for the daughters, who would watch strangers inherit their family portion for lack of a brother, or for their father, whose name would be lost among his clan. And when Zelophehad’s daughters questioned the disparity between God’s value of equality and the laws of inheritance as implemented in society, it emerged that, in God’s records, the law for a case in which there is no brother to inherit, as Rashi asserts, had always been in accordance with their view.

The Sifrei’s idea of a societal norm that has more compassion for men than for women, contrary to the divine concept of equality, resonated deeply with me at the time of Yael’s bat mitzvah. Two months earlier, Tzviya Gorodetsky, whose husband had been in jail for 17 years for refusing to give her a get (a Jewish bill of divorce), had reached a point of despair and ended an eight-day hunger strike after a rabbinical court asserted that there was “no solution” to her quandary and the Knesset withdrew legislation that could have helped annul her nuptials.

Tzviya Gorodetsky launched a hunger strike outside the Knesset in May 2017 after being refused a religious bill of divorce for 17 years (Courtesy)

Similarly, a week before Yael’s celebration, 44 rabbis from the Religious Zionist and Haredi communities had signed a religious ruling against prenuptial agreements designed to prevent get-refusal that were in use by three Orthodox rabbinic organizations — Tzohar, Beit Hillel, and the Rabbinical Council of America. The signatories did not, however, put forward any alternative, for we seem to live in a society that has more compassion for men who are chained in marriages than it does for women in the same situation (men can receive a special dispensation to marry a second wife and can have children with another woman, while still married, without them being regarded as mamzerim). And the Orthodox rabbinic establishment often does not seem to be sufficiently moved by this injustice and the suffering that it involves.

The story of the daughters of Zelophehad, when read with the commentaries of Rashi and the Sifrei, teaches us that when women are held captive for years in marriages that they do not want, when they are forced to watch their childbearing years slip away, and are denied the possibility of finding new love and bringing life into the world, it is not because of a divine decree or injustice in God’s law, but because of the way that law is being interpreted and implemented by flesh and blood. And the story encourages us to believe that there must be solutions to prevent such tragedies, for while society may have more compassion for men than for women, God has compassion for all.

When the daughters of Zelophehad courageously came forward to protest the injustice being done to their father due to a social inequality between men and women, they taught us that we too must speak out and take action when we encounter this kind of injustice. In Israel today, Susan, Rachel, Nitzan, Batya, and Rivkah — advocates and activists who are working to free agunot and prevent cases of mesuravot get in the future — are following in the footsteps of Mahlah, Noah, Hoglah, Milkah, and Tirtzah. These women, who see what rabbis sometimes do not see, are fighting to resolve an injustice that seems incompatible with the values of Judaism and are striving to relieve religiously-based suffering that is irreconcilable with the concept of a just and compassionate God.

In the year since Yael’s bat mitzvah, the situation of agunot and mesuravot get in Israel has shifted slightly. Last month, after a 23-year wait for her divorce, Tzviya Gorodetzky was freed, when a private rabbinical court headed by Rabbi Professor Daniel Sperber issued a 58-page ruling that annulled her marriage on the grounds that she would never have entered into it had she known how abusive it would be, that her husband failed to disclose his mental illness prior to the wedding, and that she, rather than her husband, had purchased her wedding ring. Similarly, a Haifa rabbinic court annulled the marriage of Oded Guez, whose wife had been awaiting a divorce for five years, on the grounds that one of the witnesses of the marriage did not observe Shabbat and engaged in other non-halakhic behavior at the time that it took place.

A private rabbinical court dissolves the marriage of Tzviya Gorodetsky (Courtesy of the Center for Women’s Justice/Rachel Stomel)

Annulling marriages retroactively, however, is neither the norm nor the solution. The annulment of Tzvia Gorodetzky’s marriage by Rabbi Sperber’s private rabbinical court is not recognized by the Israeli rabbinate and by the State of Israel; moreover, Rabbi Sperber himself admitted that had the 54-year old Gorodetzky been younger, it is likely that his court would not have granted the divorce, for fear that children from a subsequent marriage might be considered mamzerim. Similarly, although Oded Guez’s marriage was annulled because one of the witnesses did not observe Shabbat, the same court rejected an appeal by an agunah of eight years to annul her marriage on the grounds that one of the witnesses was later convicted of being a pedophile at the time that she wed. There are also authorities who reject the possibility of annulling marriages by disqualifying one of the witnesses, arguing that the nuptials are witnessed by the officiating rabbi and by all those in attendance, even if they are not designated as witnesses.

It is therefore vital for the Orthodox community to take proactive steps to prevent the possibility of women being trapped in marriages they do not want. Happily, more and more young couples in the Religious Zionist community in Israel are signing halachic pre-nuptial agreements designed to prevent get-refusal. These include IYIM’s Agreement for Mutual Respect, CWJ’s Contract for a Just and Fair Marriage, and Tzohar’s Heskem Ahava pre-nuptial agreement. There are even pre-nup fairs, designed to inform parents and to empower couples to choose the formulation that is appropriate for them and their community.

In addition, married couples who did not sign pre-nuptial agreements at the time of their marriage are signing post-nuptial agreements, sometimes at “post-nup parties.” These couples wish to set a personal example for their children, to make a statement to their communities about the need to prevent get-refusal, and to retroactively protect themselves from becoming chained (although if one wants to ensure that there will be no dispute as to the legal validity of a post-nuptial agreement, it should be signed before a judge in a civil family court).

The Center for Women’s Justice has also drawn up a new post-nup, the Pledge of Compassion and Dignity, which appoints a rabbinical court to serve as a proxy for a husband, in order to prevent cases of “classic agunot,” in which a woman is chained in her marriage because her husband has been taken captive, is missing, or is medically or mentally unable to give her a get. And organizations such as Chochmat Nashim advocate for the use of prenups and postnups, and are running widespread campaigns to raise public awareness of such developments.

When I spoke to Yael at her bat mitzvah, I stressed that the daughters of Zelophehad teach us that we, as individuals and as a community, must speak up when we confront social injustice, and especially when we encounter the suffering of chained women. We must come forward and offer compelling arguments, steadfast in the belief that God’s mercy extends to men and women alike. We must advocate for the freeing of existing agunot and encourage the next generation to take steps to prevent the phenomenon of get-refusal.

At the same time, our religious leaders must strive for a society that is equally compassionate to all. They must not tolerate get-extortion when they encounter it, and must prevent the possibility of it arising in future marriages. When officiating at marriages, rabbis should require couples to sign prenuptial agreements rather than simply offering the couple the possibility. They must work to build consensus around halakhic solutions to prevent the phenomenon of chained women — as well as chained men — until there is a solution that becomes the norm. And rabbinic courts should be prepared to rely on leniencies when possible and to issue bold and creative rulings when necessary, in order to put an end to the human tragedies that we are witnessing.

Only with such action, both by the community and by our religious leaders, will we be able to hope that by the time Yael reaches the age of marriage — and if not, by the time her children do — the specter of get-refusal and of being chained in an unwanted marriage will be a vestige of the past.

About the Author
Shira Pasternak Be'eri is a Jerusalem-based editor and translator. She is married to Leonard (aka Eliezer) and is the proud mom of three boys, two of whom are soldiers in the IDF. Born and raised in New York, she has been living in Israel since 1982. And yes, she is Velvel Pasternak's daughter.
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