Who is qualified to officiate a halakhic marriage?

At the tail end of an election season in which matters of religion and state featured prominently in the campaigns of several major parties, Israel’s High Court of Justice convened to deliberate the marriage of Noam Oren and his wife, who wed under a ḥuppah and through the vehicle of kiddushin, “in accordance with the law of Moses and Israel” – albeit outside the auspices of the Israeli Chief Rabbinate. They made this choice in view of the agunah problem, desiring to sign a prenuptial agreement and to make their kiddushin conditional; their intent was to foreclose any possibility that their marriage would leave the woman “chained” to an unwanted marriage and subject to the caprices of a recalcitrant husband.

The wedding was officiated by Rabbi Dr. Michael Avraham, and the Jerusalem Beth Din, headed by Rabbi Avraham Dov Levine (who, sadly, recently passed away), approved its validity. After the wedding, the couple turned to the Rabbinate to register as a married couple in the eyes of the state. However, the state rabbinical courts, which have jurisdiction over such matters, determined that there is an “uncertain kiddushin.” In its own words: “This, on one hand, refrains from declaring the couple to be married, and on the other hand, imposes restrictions on the couple that are akin to those of a married couple.”

The rabbinical court explained its ruling by saying that the officiating rabbi, a well-known and highly-esteemed Torah scholar, was not authorized by the Chief Rabbinate to conduct weddings, and he therefore cannot be considered as one who “knows the nature of writs of divorce and kiddushin” (Kiddushin 6a). It further claimed that the document that makes the kiddushin conditional — a document that asserts that under certain conditions, the kiddushin are void — which the couple signed, attests to the fact that the couple did not really intend to wed. Prior to the deliberations in the High Court of Justice, the prosecution added a claim that connects the prohibition against officiating weddings outside the Rabbinate with an ordinance from the Geonic era (late in the first millennium CE), according to which it is forbidden to hold a ḥuppah and perform kiddushin unless 10 adult Jewish males are present.

Taken together, this is a hodgepodge of claims, some of which are disputable, and some of which are simply unfounded. For example, the claim that only one who “knows the nature of bills of divorce and betrothals” may officiate a ḥuppah all but ignores a long list of halakhists, including R. Joseph Karo, the author of Beit Yosef and Shulḥan Arukh (see Even Ha-Ezer 49:3 and the commentaries there), who maintain that this dictum does not apply to wedding officiants, but only to one who issues halakhic rulings, which demands a much higher threshold of expertise. Indeed, in many communities, historically and today, the more permissive interpretation is followed in practice. It goes without saying that Rabbi Avraham himself is at least as qualified as many officiants who have been approved by the Chief Rabbinate, and in fact, some of the same rabbis who conduct weddings outside the Chief Rabbinate also conduct weddings under the Chief Rabbinate’s auspices, and their weddings are recognized as legitimate. This indicates that knowing “the nature of bills of divorce and betrothals” is used here as an excuse, not a substantive reason for disqualifying marriages.

Likewise, the expansion of the Geonic ordinance in order to classify any non-Rabbinate wedding as “private” is hyperbole, to say the least. The purpose of that ordinance was to prevent secret weddings, not private weddings. A wedding in the presence of 10 adult males was deemed to be public by definition, out in the open, with nothing hidden. Contemporary weddings, even those conducted outside the Rabbinate, not only have the requisite quorum in attendance, but are also publicized across social media channels, recorded for posterity by videographers, and registered by an array of professional organizations. There is nothing secret about such weddings; conflating ceremonies not sanctioned by the government with secret weddings is nothing but obfuscation.

Moreover, there is clearly no situational, legal, or any other type of “uncertainty” about the status of this wedding. The status asserted by the rabbinical court is not a halakhic ruling, but the evasion thereof. The reason is obvious. Had the rabbinical court ruled that such a wedding is valid, they will have de facto approved of weddings conducted outside the Rabbinate. Had it ruled that the marriage is invalid, they would essentially be saying that anyone who weds outside the Rabbinate, with or without conditions on the kiddushin, is in fact single. Such a ruling would be deeply problematic from a halakhic perspective, and it would also, ironically, permit anyone to wed outside the Rabbinate, for, if there such a wedding is invalid in the eyes of the Rabbinate, what crime is committed by holding a make-believe wedding? Clearly, then, there is no real “uncertainty” here, only an attempt to use halakhic language to penalize people who choose to defy the Chief Rabbinate.

The Chief Rabbinate and its rabbinical courts also appealed to the laws of the State of Israel, which grants them jurisdiction over all matters pertaining to marriage of Jews. Consequently, they claimed, no other court may intervene in halakhic questions of this sort. Indeed, this is the law, and the High Court apparently accepted this claim. This exposes an absurdity of the present arrangement. On one hand, the Chief Rabbinate claims autonomy in deciding Halakhah and denies the authority of the High Court to question its rulings. In truth, they are correct; halakhic rulings should be made by halakhists. On the other hand, the Chief Rabbinate wishes to function as an arm of the state, with the ability to use state power to enforce its decisions. That is, it wishes to wield state power but not be subject to state institutions whose function is to prevent the abuse of executive power.

Historically speaking, Halakhah has never developed by means of an official body that issues unequivocal rulings for the entire Jewish people. That does not mean that things developed chaotically; on the contrary, they developed by consensus, through persuasion, and by presenting arguments among rabbinic colleagues. A hierarchy emerged, but it was an informal, spontaneous hierarchy, not a top-down hierarchy enforced by state power.

The contemporary Chief Rabbinate is thus an anomaly. It is vested by the Knesset with state power, and given that power, it no longer feels any need to justify its decisions through persuasion. As was the case with “crown rabbis” under the tsarist regime, and as Rabbi Shlomo Goren acted in the infamous Langer case, when rabbis wield power, they forsake the persuasion and consensus-building that characterizes the development of Halakhah.

Convincing halakhic arguments are produced in competitive environments, and all the great halakhists of every generation operated in competitive environments. When a local rabbi was confronted with a thorny issue, he could, if he felt his reasoning was sufficiently persuasive, issue his own ruling, which was subject to peer criticism. Alternatively, he could turn to an acknowledged authority. For instance, in Galicia in 1900, he could turn to Rabbi Shalom Mordechai Schwadron (author of Responsa Maharsham), Rabbi Yitzhak Schmelkes (author of Beit Yitzhak), or Rabbi Aryeh Leib Horowitz (author of Harei Besamim), all of whom answered hundreds of questions from towns and villages throughout the province, on a dizzying variety of subjects. None of these three giants was the chief rabbi of Galicia (an office that the Austrian government tried, and failed, to create in order to organize and centralize Jewish religious frameworks); all who turned to them did so of their own free choice, and in the face of alternatives.

Some might contend that competition in the realm of Halakhah is “exilic,” that in the State of Israel, we need unity and centralization. Perhaps there is an argument to be made, but from what I have seen, it is usually those who wish to impose their views on others who speak of “unity.” If halakhic unity is to emerge, it will not be by imposing a single view by fiat.

The traditional Ashkenazic liturgy of the Days of Awe contains the prayer: “May they all become one band, to do Your will wholeheartedly.” Indeed, we pray for the day when the entire Jewish people bonds as a single unit and all serve the Almighty with all their hearts, without need for any coercion or imposition. Perhaps then, a single body will be responsible for interpreting and teaching Torah to all Israel. But until then — and we are still very far from that day — we must not hasten the end of days.