The Voice of Women-The Importance of Leniency and the Leniencies that come from being Strict -By Rabbi Hyim Shafner

July 31, 2009

Yesterday someone asked me why women on the women’s side in my Shul sing-along with the congregation whereas at the previous synagogue the person had attended the women had not been permitted to sing.  I explained that even though the Talmud says the voice of the woman is considered sexual, within Jewish law there are opinions that in holy places and in holy instances it is permitted.  For instance Rabbi Ovadiyah Yosef and and others who at times permit the voice of a woman in a religious context, do this based on the gemara that states that women can read the torah in the synagogue and receive aliyot and the gemarah does not see this as a violation of the halacha (the Jewish law) of hearing the voice of a woman singing (Talmud Bavli Megilah 23a).  Thus I explained that to take the strict approach would actually produce a leniency.  To be strict about not letting the women sing would be to be lenient about women’s involvement in prayer and their full participation in the congregation’s service of the heart, which according to the Mishna women are equally obligated in just as men.

This reminds me of the famous story of Rabbi Chaim of Brisk.  One Yom Kippur, there was a cholera epidemic in the city of Brisk.  After Kol Nidre Rabbi Chaim made kiddush and ate and made everyone else in the Shul eat.  Afterwards people asked him, wasn’t he being more lenient about the laws of Yom Kippur than the Shulchan Aruch (Code of Jewish Law) allows?  The Shulchan Aruch writes that one may only eat on Yom Kippur if their life is endangered, but no one yet had contracted cholera?  Rabbi Chaim answered, “I am not being lenient about the laws of Yom Kippur, but on the contrary I am being strict about the laws of guarding one’s life.

It is important for us to realize that the power of leniency, as the Gemara says, is very strong.  In fact, in almost every argument between Bais Shami and Bais Hillel, Hillel is more lenient and the law is like him.  Wouldn’t it be better, “more religious,” to be strict about Jewish law?   Yet we follow the more lenient opinion of Bais Hillel and in the several situations in which Shami is more lenient we follow Shami.  Perhaps the power of leniency is greater than the power of strictness.

There are times when we should be strict in hlacha.  But to think that we should always be strict, that this is better and more religious, is a mistake that many in our community make, I imagine out of ignorance.  They also do not realize that the other side of the coin of every strictness is another leniency, a leniency which might be inappropriate, a leniency that might distance us from God and Torah.  According to the Talmud Hillel knew more than Shami, Hillel knew his opinion and that of his opponent.  The same is often true today, those that are able to be lenient may in fact know more about halacha than those who are always strict, as the Gemara says, “kocha d’hetera adifa” the power of leniency is greater.

Questioning on Tisha B’Av

July 30, 2009

Mahara”t Sara Hurwitz

On Tisha b’Av, we are given permission to ask Eicha—How.  Or why.  How could you do this to us, God. How could you allow so much destruction and tragedy to enter our lives.  Although Jeremiah himself challenged God, these questions feel quite blasphemous.  We are not supposed to ask such questions when we suffer a personal loss.  So on this national day, how can we possibly question God and boldly ask Eicha? 

And yet as I sit writing this, I cannot help but ask God, Eicha? Why? Today, I sat with two Holocaust survivors, as they were trying to come to terms with and understand the   sudden and tragic loss of their son.  As I sat with the mother, and then later sat to write a eulogy, her question kept floating up to me: Why do bad things happen to good people? 

I am not sure that we will ever reach a comforting explanation to this deeply theological question.  But at least for this one day of the year, on Tisha b’Av, asking eicha is entirely acceptable.  And, despite the pervading, even accusing question, that Yirmiyahu asks, even the Book of Eicha ends on an optimist note, as does almost every kinnah that we read on Tisha B’Av morning.

In life tragedy sneaks up on us.   But in every tragedy, we must learn how to turn eicha into the question of ayekkah.  It is the question God asked of Adam and Eve in sefer Bereishit.  Where are you? How can you live life as a truly good person, and contribute to making this world a better place.

You see, questions and questioning is part of being Morethodox.  We challenge, seek, and then challenge again. But within every question, we must look deep within ourselves and challenge ourselves with the very same questions that we ask of God.

Of Money Laundering in Brooklyn and in Deal

July 29, 2009

Posted by Rabbi Yosef Kanefsky

All that has been said about the scandal emanating out of Brooklyn and Deal, N.J. is true. Yes, it’s time that (especially) Orthodox schools and communities focus our educational attention on instruction in ethics. Yes, we have to make sure to distinguish between Judaism – which teaches honesty and uprightness – and individual Jews – who too often shamefully neglect these teachings. And maybe even yes, we should be outraged over this Chilul Hashem, though frankly I’ve begun to doubt whether there is much left of God’s name to publicly desecrate any longer. Having conceded all of this, I still believe that the main issue is not being addressed, that of root causes.  

Everyone seems to be scratching their heads about why scandals like these are occurring with such regularity in our community, given how ostensibly learned and religious the main players are. A huge part of the answer, I think, lies in the basic strategy for confronting modernity that most segments of the Orthodox community adopted in the 19th century, and still intensely practice today.

 Given the choices of exploring the wider world that the dawn of modernity made accessible to us, but risking the dilution of our values and our numbers, or doing everything possible to shut out that world and its inhabitants in the name of preserving out precious inheritance, we have massively chosen the former. We have generally chosen to minimize or altogether avoid meaningful contact with the ideas, the books, the cultural trends of the wider world (though we seem to have recently absorbed its materialistic tendencies and its styles in music). And this policy has in turn necessitated our minimizing or altogether avoiding meaningful contact with non-Jew people and non-Jewish society.  It is the norm in most of our Orthodox communities that outside of commercial or professional contexts, adults have no significant personal relationships with non-Jews, and children have no such relationships period.

 Our strategy of consciously building insular societies has achieved some remarkable results. A century ago, who could have believed that the US would become the home to one the largest, most developed and institutionally successful Orthodox communities in the world? We have to credit our strategy of insularity in large measure for this. And while we have also paid the price for our insularity in many ways (we are probably the religious community that positively impacts the least on our wider society’s pressing social and economic ills), the price that is most embarrassing is the too-frequent involvement in illegal activity.

 What’s the connection between the two? There is a subtle mind game that we need to play in order to justify our insistent insularity. We, and our children, do encounter non-Jewish people and non-Jewish families in the simple contexts of everyday living- in stores, in parks, at medical and dental offices. And most often, they are nice people. They aim to be helpful, are frequently intelligent and cheerful, and have nice families. And the questions occur to us and to our children: Why then do we draw such impermeable social lines between us? Is there anything so wrong with they way they live? In order then, to justify our strict insularity, we cultivate a somewhat vague – and usually benign – sense that the others, outside of our world of Torah and Miztvot, are somehow lesser. They are – and hear the word as I’m writing it – goyim. And as such, it must be that our way is better than their way, our God is better than their God (we avoid even having to deal with this issue by consistently substituting “Hashem” for “God”), and our communities are holier than their communities. That’s how we justify our decision to keep ourselves socially and intellectually at arm’s length. And with only one more step, this mindset moves from being overly simplistic but benign, to being very dangerous. That step? That our Laws are better than their laws, and not only better, but are the only laws that really matter. After all, what ultimate significance could goyishe laws have? Of course the justification for the strategy of insularity need not produce such a dismissive attitude toward secular law. But as we’ve seen over and over again, it frequently does, and this price of the strategy of insularity gets paid on a regular basis.

 The solutions before us are straightforward. They are either to find a more sophisticated and honest way to understand and explain why we choose our social and intellectual insularity, or to embrace all that is good and valid in God’s wider world, not only without compromising our own religious integrity, but as an expression of our religious integrity. The latter is of course more challenging. But as the headlines are screaming to us, it is the path whose time has come.

Humility in Criticizing, Rabbi Asher Lopatin

July 28, 2009

Dear Friends,

On this week of Tish’a B’av, I want to write in a different tone. Yes, I do believe firmly in working on Kiddush Hashem, and avoiding Chilul Hashem. I said my piece last week. This time I want to apologize to anyone I might have hurt by the tone of my message. In writing this blog, sometimes I fall into the trap of being sensational and YELLING my point. But I understand, that especially when being critical of my brothers and sisters, I need to be humble and modest , avoiding any sarcasm and certainly not relishing in critique. The truth is that if the message is right and true, it will get heard without being “in your face” and sensational. I was happy that my ideas were picked up by many different outlets, but I feel that since it was a message of rebuke, tocheicha, I need to work harder to make sure not to feel even one shemetz – one iota – of satisfaction of taking on a community and its leadership. I just hope that despite just being a small pulpit rabbi in Chicago, people are listening. And I thank the Los Angeles Jewish Journal for hosting our blog, as well as Vos Iz Neis for picking up these blogs over the past week.
At the same time, I am gratified that beyond the issues of Hilul Hashem and Kiddush Hashem, the invitation to Me’ah She’arim from USA Yated Neeman editor Rabbi Pinchas Lipschutz was sincere, and we have been in touch, and I look forward to meeting with him, and eventually being in Me’ah She’arim together. This is a new relationship with a leader in the Yeshivishe world that I hope to foster, and I am grateful for it.
Moreover, from the idea of the invitation to Me’ah She’arim, I am working on an Achdus Mission to Israel. The mission should include rabbis from the spectrum of Orthodoxy, and should visit institutions and communities in Israel from the spectrum of Orthodoxy: from those in Me’ah She’arim to those in the Old City to those outside and part of Modern Orthodoxy in Israel. There have been a lot of emails of people excited about joining such a mission, and while it seems like it will be a challenge, I believe it is doable.
On the background of all the apparent Hillul Hashem of the past weeks and months – of course we don’t know who is guilty of what and to what extent and the circumstances that led to their alleged actions – I call for all of us to come together. I know Rav Yosef called for unity of all Jews committed to Judaism, and I agree with that as well, maybe we at Morethodoxy can be a catalyst to bring Orthodoxy together and to show that world that as much as we disagree vehemently, we can come together in mutual respect, and work toward the mutual good of Torah, Shem Hashem and Am Yisrael.
Perhaps, with God’s help, we are moving in the right direction as we head for the sad time when we Jews all over the world will sit together on the floor and try to find a way of “renewing our days as of old”.
May this Tish’a B’av move us to a time where there won’t be any more mourning for our People, a time of appreciating for each other which we all deserve.
Asher Lopatin

Gentiles and Kiddush Hashem – Rabbi Barry Gelman

July 28, 2009

I have spent the last week in Camp Moshava in Honesdale, Pennsylvania. Being here has been a real treat. Camp Moshava is a living breathing “kiddush Hashem”. One of the many outstanding aspects of my experience thus far has been the wide variety of orthodox Jews that work here.

I mention Kiddush Hashem because, except for my experience here this week, my thoughts have been on the tremendous chillul Hashem created by the Rabbis arrested last week for offenses ranging form money laundering to human organ trafficking.

I have no doubt that the actions that these rabbis have been accused of have done enormous damage to the perception of Torah. I am deeply concerned that these actions will create doubt and cynicism in the hearts and minds of young people towards religious leadership. One way to combat these outcomes is for the Modern Orthodox community to clearly state that these actions were wrong and that the greed that led to them is not in keeping with a spiritually sensitive Judaism.

Rabbi Aaron Lichtenstein coined the term “glatt kosher hedonism” to refer to the belief (desire) that observant Jews can have it all. Our communities, the Modern Orthodox, pride ourselves on appreciating what is good, wholesome and spiritually fortifying in general culture. In doing so, we run the risk of letting our guard down in the pursuit of having it all. So as not to allow this tragedy to go without any positive outcome, our communities need reiterate the importance of Zniut – modesty in the way we live.


I will conclude with two brief notes that were emailed to me recently in reaction to the scandal.


Rabbi Riskin mentioned a number of times that when he still lived in New York and was starting his own yeshiva high school (“Mesivta Ohr Torah” in Riverdale), he interviewed 17 candidates for the job of Rosh Yeshiva.   After ascertaining all knew how to learn, he asked them, “Suppose you ordered by mail an electric shaver from Alexander’s Department Store.   And instead of one shaver being delivered, 3 shavers were delivered.   What would you do with the other two?”   Rabbi Riskin reported that sixteen of the seventeen insisted that they keep the other two shavers because stealing for a gentile is permitted.


The last applicant (Rabbi Moshe Chaim Sosefsky who is now the Rosh Hayeshivah of Yeshivat Ohr Yerushalayim) insisted on returning the shaver quoting Bava Metzia Perek 2 Yerushalmi: Rabbi Shimon Ben-Shetach bought a donkey from an arab. When RSBS was removed from the seller, he noticed there was something in the saddle: a valuable diamond whose sale would have put RSBS on easy street for the rest of his life.  But RSBS insisted on returning the diamond to the arab as it would be better for the gentile to bless the G-d of Shimon Ben-Shetach than for Shimon Ben-Shetach to obtain any financial benefit such as this.

 The following, written by Rabbi Moses ben Jacob of Coucy, authoer of the Sefer MItzvot Gadol on positive Mitzvah # 74 is very timely.

And I have already expounded to Galus Yerushalayim in Spain (Sefarad) and the other Galuyos under Christianity (Edom), that now that the Galus has lasted too long a Jew must separate himself from the frivolities (Hevlei) of the world and grasp the seal of Ha’Kadosh Baruch Hu, which is Truth, and not lie, neither to Jews nor to non-Jews, nor to deceive them in any matter, and to sanctify ourselves even in that which is permissible to us, as it says

(Tzefani’a 3:13): “The remnant of Israel will not commit foul deeds nor speak falsehoods, nor will there be found in their mouths treacherous tongues.” And then, when Ha’Kadosh Baruch Hu comes to redeem us the non-Jews will say that He is just in doing so, for we are men of truth and Toras Emes is in our mouths.

But if we conduct ourselves towards the non-Jews with deceit (Rama’us), then they will say: “See what Ha’Kadosh Baruch Hu has done, that He has chosen as His portion thieves and cheats.”

Furthermore, it is written (Hoshe’a 2:25): “And I will plant them in the earth.” Why does a person plant a measure of grain in the earth? In order to cultivate several measures. So too Ha’Kadosh Baruch Hu planted Yisroel in the various lands so that converts would join us. As long as we conduct ourselves amongst them with deceit who will cling to us? And, we find that

Ha’Kadosh Baruch Hu was upset even by theft from evildoers, as it says(Bereishis 6:11): ” And the land was filled with theft (Chamas).”

Further, I bring proof from the Yerushalmi Chapter Eilu Metzi’os (Halocho 5), where it says: “The elder rabbis (Rabbanan Savi’ai) bought a measure of grain from non-Jews and found within it a bundle of money. They returned it to them, and the non-Jews said: ‘Blessed is the G-d of the Jews.'” Many similar stories of lost items that were returned to non-Jews because of Kiddush Hashem are related there.

The Biggest Farce of the Year?

July 24, 2009

There are many commitments we renew as the Jewish calendar year goes round. And most of them, we’re sincere and serious about. These include the commitment to repent every time Tishrai comes around, to remember the lessons of the Exodus every Nisan, to personally receive the Torah anew every Sivan. But there is one commitment on the annual cycle that is a near total charade. We pay it reverent lip service, but few if any of us have any idea what we even mean by it. And certainly don’t harbor any actual intention of following through on it. This is the commitment we renew every Av to achieving “achdus”, Jewish fraternal unity. And it’s probably the biggest farce of the year. 

 It’s not that we don’t dream of all Jews getting along and serving God together. Our enduring iconic image is that of the children of Israel camped at the foot of Sinai “k’ish echad, b’lev echad”, as one person with one heart. It is rather that our Orthodox community has so vague a concept as to how “achdus” is to be achieved, that we more or less know that we are mouthing empty words when we rhapsodize about its importance every year.

 Who exactly are we out to achieve “achdus” with? The most cynical and painful answer is “with other Orthodox Jews”.  This is a cynical answer, because it shrinks the exalted religious project of establishing Jewish fraternity, to a small fraction of itself – the fraction that requires the least amount of effort. It is painful, because it dismisses 90% of American Jewry as outliers to the brotherhood.

 The more sincere response of course, is that we hope to achieve “achdus” with all Jews, and to together forge a meaningful, cohesive religious community. But the sentiment is exposed as an empty religious profession the moment we make any attempt to translate it into a practical course of action. Tragically, Jews who have lost or who have erased their connection to Judaism or to the Jewish people, have already signaled that they are not interested in being part of a cohesive religious community with us.  This then leaves the vast numbers of Jews who affiliate with the Conservative, Reform, or other Jewish religious movements. As someone who has lived his whole life inside the Orthodox community, including the last 22 years in the Orthodox rabbinate, I feel confident in saying that our community is generally not interested in “achdus” with Jews who are committed to practicing and believing and raising their children as non-Orthodox Jews. We don’t want to fight with them of course. We even want to cooperate on matters of mutual interest as long as there is no religious entanglement involved in the cooperation.  But we are most certainly not prepared to say that we are all part of one religious community. This would be considered a “granting of legitimacy” to non-Orthodox practices that we have been taught we must avoid. (And to say that we are all one religious community that consists of the Orthodox and “not-yet-Orthodox”, is not only wildly naïve and unrealistic, and not only offensive to the very Jews who we are proclaiming our “achdus” with, but is also not “achdus” at all. “Lying in wait” should never be confused with unity.)

I for one believe – and I know I am not alone – that we are at the historical moment when all Jews who love and who are connected to their Judaism, must learn to appreciate and admire the religious passion and commitments of other Jews. Of course we’ll disagree on all kinds of issues pertaining both to practice and to doctrine. But we together comprise the community that is holding fast to our Jewishness despite the lures of cultural assimilation and plain-old religious apathy. “Achdus” need not be a pipedream if we can let go of ideological battles that will never have any victories or victors, and instead embrace all of our comrades who are fighting the good fight to preserve, celebrate and sanctify Jewish life in this complex time and place.

 Our month of Av commitment to unity and brotherhood need not be a farce. Our words need not be devoid of content. All that is required of us are some imagination, and a heart, like the Biblical Yosef’s, that truly seeks its brethren.

Bridging Religious and Secular Jewish Life in Israel -by Rabbi Hyim Shafner

July 24, 2009

What Tzohar is doing to engage non-observant Israeli Jews and is there such a thing as Religious Zionist P’sak (jewish legal decisions)

I spent the past week in Israel at a meeting of Tzohar Rabbis.  Tzohar is an organization of several hundred rabbis, mostly Israeli, who want to create a “window between worlds,” -between the world of religious and non-religious Jews in Israel which right now is more of a wall.  Unfortunately not only has living in a Jewish country not led to residents finding a place for themselves in torah (or finding a place for torah in themselves), but it has alienated many from the torah.

It is not easy for an American, who takes freedom of religion, the right to self determine what my religious life will look like and to pursue it in a personal way, for granted, but it is hard to imagine the government making religious demands of me or regulating how my religious life must look.  If it did we can imagine how that religious life would not only become subsumed within the political arena but how working on a uniquely personal relationship with God could be difficult and perhaps become beside the point.

An interesting approach to Judaism and halacha (Jewish law) emerges when one sees their Jewish responsibility and the halchic decisions they make as pertaining not only to themselves, their family and their religious community, but to the entire Jewish country, religious and not-religious, as well.   Since the place in which religion meets the average secular Israeli is within life cycle events and things that define Jewish identity in the eyes of the state, Tzohar has begun with these.  Instead of a wedding or funeral being, in the eyes of secular Israelis, only about the government’s requirements and the Rabbanut’s procedures, Tzohar has tried to help make life cycle events more than just bureaucratic for the public but to facilitate bringing personal religious meaning and understanding to events such as weddings and funerals.

This focus on the whole Jewish people also demands a special approach to pesak (Jewish legal decisions).  This was well summed up by a festinating statement of Rabbi Yuval Cherlow and highlighted well the difference in approach and outlook between the rabbis of Tzohar and other more insular rabbis who see only their own community as the purview of their religious decisions.  The question under discussion was to what extent the utilization of lenient positions within halacha over strict positions should play a role in halachic decisions, and as related to this the meaning of the Talmud’s statement kocha d’hetera adifa (the power of leniency is stronger).

Outside of Israel rabbis may find themselves leaning toward a more lenient position when the repercussions of a more strict position will compromise the welfare of the asker or their spiritual life.   For instance in a question of nida (the forbidden nature of sexual contact after menstruation and before mikvah waters) if one can be lenient and not keep husband and wife from postponing the mitzvah of sexual union, many rabbis will try  to rely on a more lenient position rather than finding one that is strict.

In Israel the need to make halacha a part of the lived life of a whole country makes such lenient approaches even more pressing.  For instance explained Rabbi Cherlow, if a leniency is not utilized (which apparently some rabbis are not willing to do) enabling the police to fully do their jobs on the Shabbat, for instance taking fingerprints on the Shabbat then in a Jewish country where the police are all Jews, criminals will run free.

It is not enough to tell religious Jewish police to refrain from taking fingerprints in Israel we must take into account all Jews even those that are not religious.    The torah must thus be accessible to the entire Jewish nation.   In this sense indeed we must say, as I’m sure Bais Hillel would agree, kocha d’hetera adifa-the power of leniency is greater.

An Invitation to Me’ah She’rim for Rabbi Lopatin, and I accept!

July 24, 2009

From Rav Pinchas Lipschutz, Editor of Yated Neeman in the USA:

I invite Lopatin and the rabbi who wrote in The Jerusalem Post to join me for a visit to Meah Shearim. Let’s go visit the stores and places of business of the Reb Aralach – yes they do work – and see how they conduct themselves. Let’s visit their homes and see how they live. Let’s follow them to the Beis Medrash and observe them davening and learning. We’ll go to the rebbe and you can ask him all your questions. We’ll visit Ben Zion Oiring and watch a one-man chesed operation in action. We’ll talk to Uri Zohar and hear what he has to say. We will pay a visit to Rav Dovid Soloveitchik and you can ask him why he publicly referred to the sorry story as a blood libel. We can just stand at Kikar Shabbos and watch how these loving lovely people go about their daily affairs. If, G-d forbid there should be a need for another hafganah we can attend and watch how Yerushalmi yidden peacefully express their pain and how they are treated by the police. And we can stay till the bitter end and watch how the rif-raf comes and destroys the place. And then we can review together what we have seen and determine whether a re-evaluation is in order.

Dear Rav Lipschutz,

With a spirit of achdus and cheshbon hanefesh,I would like to take you up on your invitation to join you for a visit to Meah She’arim. I have been there many times, as I’m sure most of us reading this blog have, and have been there for a tisch at Toldos Ahron – I believe – but it would be different going with you in a spirit of love and appreciation for acheinu beis Yisrael, who are so committed to Torah and Yiddishkeit – as all of us recognize. I would like to organize an Achdus trip to Israel with Modern Orthodox rabbis, Centrist Orthodox rabbis and Yeshiveshe velt rabbonim all going together for the outstanding itinerary you propose for Meah She’arim, and then to continue into the Old City to visit Yeshivat Ateret Kohanim, then to walk on to Yeshivat Hakotel, Eish Hatorha, Yeshivat Porat Yosef, and to end up in Talpiot Mizrach to visit Beit Morasha and in Bakkah to visit the Pardes Institute, led by Rav Daniel Landes, the great grandson of Rav Tzvi Pesach Frank, zt”l. I would like to invite also Rabbanei Tzohar – perhaps Rav Cherlow and Rav Yehoshua Shapira, as well as leading rabbanim in the Chareidi world in Eretz Yisrael. Together we will show how the greatest Kiddush HaShem is the Achdus of Klal Yisrael and its Torah leadership.

Kol tuv and a gut Shabbos,

Asher Lopatin

Breaking the Chains of Silence

July 23, 2009

Mahara”t Sara Hurwitz

I recently met with several women, who have spent the greater part of their professional lives advocating on behalf of agunot—women whose recalcitrant husbands refuse to grant a get.  They came to me hoping discover the solution to the agunah problem.  The plight of wives– and husbands for that matter– whose spouse callously withhold a writ of divorce is a traumatic experience.  It is hard to believe that despite many attempts by Rabbis, and advocacy organizations to circumvent the agunah problem, there are many, many men and women who are suffering.  I don’t have the solution, but perhaps together, with our varied voices paired with our religious and ethical conscience, we may discover the magic bullet.

Here’s a just a few of the existing band-aides that attempt to prevent couples from becoming agunot as well as release those who are currently chained to loveless marriages:

  1. RCA prenuptial agreement
  2. Heskem L’ Kavod Hadadi (the agreement of Mutual Respect)
  3. Rabbi Emanuel Rackman’s Beit Din
  4. Rabbi Michael Broyde’s Tripartite Pre-nuptial Agreement
  5. Nullifying a marriage based on a technical defect in the wedding ceremony

1.  The RCA prenuptial agreement includes a “binding arbitration agreement, whereby both the groom and bride accept the Beit Din of America as an arbitration panel, and is legally able to render any decisions relating to the get.  The BDA prenup agreement proposes to compel a husband to give a get or pay $150 per day for each day that he refuses to grant her a bill of divorce. 

A few problems that are embedded in this solution: any person who is very wealthy, mentally unstable or has absolutely no funds, and therefore nothing to lose may not be threatened by the monetary obligation, and simply ignore the bet din’s pleas. In addition, the women may refuse to accept the get in exchange for child custody, or other demands.

2.  Another prenup, called the Heskem L’ Kavod Hadadi (the agreement of Mutual Respect) works much like the RCA prenup. However, both the bride and the groom obligate themselves to support the spouse, the amount ranging from $1500 per month to half his/her monthly net income. 

While the Israeli agreement has potentially increased the financial burden on the recalcitrant spouse, there are cases where the recalcitrant party may simply ignore the financial obligation and continue to withhold the get without concern for the pain this action may cause.

3.  A third, rather radical solution was proposed by Rabbi Emanuel Rackman in 1997.  The rationale behind the Rackman court is that since “grave errors,” “mistakes,” or “salient defects,” underscore the marriages at issue, the wives’ initial consent to marry their husbands was marred, rendering the marriages void.  Therefore, the Rackman Beit Dins have freed many chained spouses without the need for a get to be given by the husband to the wife. 

There has been many critiques written on the Rackman courts, and despite the fact that it has the potential to alleviate the suffering of so many, Rackman’s court’s are not widely accepted by the Orthodox community.  (see Rabbi J. David Bleich in his 1998 article entitled Kiddushei Ta’ut: Annulment as a Solution to the Agunah Problem).  Rabbi Dr. Michel H. Broyde dismisses Rackman’s solution, saying that the Rackman court allows for the annulment of marriages based on defects in the husband that arose after the marriage was entered into—something that Rabbi Broyde feels is unfounded in the halakhic literature.

4.  Rabbi Broyde has advocated for the annulment of marriages in cases where unknown to their wives, their husbands were homosexuals, impotent, epileptics, mentally ill or apostates when their wives married them. (based on heterim by Rav Moshe Feinstein and others).  Rabbi Broyde has also proposed a Tripartite Pre-nuptial Agreement: authorizing the rabbinic court to void a marriage by communal ordinance; establishes that a consecutive fifteen-month period of separation is a condition to void the marriage; and appoints agents to give the get in the husband’s stead.  This agreement has not yet been authorized by the Orthodox community.

5. Yet another proposed solution that could free agunot is finding a defect with the marriage ceremony.  If the wedding did not fit the halakhic requirements of kiddushin, then the marriage could be annulled.  Some even advocate to purposefully introduce a technical error into the wedding ceremony—having a non-observant witness, for example.  While this solution has its merits, it seems disingeneous to purposefully flaw the wedding ceremony. 

So where des this leave us?

There should be no reason why any Rabbi officiating at a wedding does not insist that a couple signs a prenuptial agreement.  Many of the agunah cases that have been resolved, have in large part been due to the binding prenuptial agreement. Yet, this is not enough.  We must ask ourselves if there is a way to find a halahicly acceptable premise with which to accept the Rackman courts.  If not, then we need to advocate for larger acceptance of Rabbi Broyde’s Tripartite Pre-nuptial Agreement, which it would seem would free many agunot, if employed.   Or, perhaps, (and I am not sure how I feel about this) advocate for a small technical breech within the kiddushin ceremony.

Whatever the solution, let’s break the silence. Our community must galvanize together and raise a voice of moral conscience to advocate for the freeing of women who are currently agunot, as well as find solutions to prevent men and women from becoming chained to hateful, loveless marriages in the future. 

Do you have the answer?

An Open Letter to My Chareidi Brothers and Sisters in Israel

July 22, 2009

First I want to congratulate you for your fervor and unity in responding to those who are violating Shabbat by driving to Jerusalem on Shabbat and those who are intervening in family life in the Toldos Ahron community by treating children in the hospital when they are emaciated and weighing 7 kg at two years old.
But, secondly, I want to tell you that from a Torah True perspective your reactions are the very opposite of what you should be doing. Your commitment to Torah and current events gave you an opportunity for a great Kiddush Hashem, and instead you have distanced thousands – if not millions – from Torah. Didn’t you consider that Chilul Hashem B’farhesia, publicly profaning God’s name, is such a great sin that it outweighed going out on a limb to protect parking lots from cars on Shabbat, or to protect a family that really seems like it was abusing its children? Do you think that there could never be child abuse in your community? And was it not worth bringing an emaciated child – even you agree that he was dangerously emaciated – to one of the world’s leading hospitals for a check-up? Do you agree that doctors’ have a role in our lives in making some physical and psychological determinations?

Rather than resorting to violent riots that have turned off even people sympathetic to your love for Shabbat and the integrity of the family, you should have copied God the way we are supposed to: with love and kindness – midot hachesed – the loving traits of God. Wouldn’t it have been far more effective to have shown up at the parking lot on Shabbat with grape juice and challah rolls and offered people driving into Yerushalayim the ability to celebrate Shabbat just a little? Had you offered them cholent and kugal, don’t you think word would have gotten out that Shabbat is a beautiful thing? After all, these people driving into Jerusalem are choosing to spend Shabbat in the Holy City, not at the beach in Tel Aviv or Ashkelon! We all need to think of how we can reach out to our brothers and sisters even when they are sinning in our eyes, and rather than making them park dangerously all around Jerusalem, endangering pedestrians who are not violating Shabbat, make them realize that you are willing to interrupt your Shabbat to spend some time with them! Maybe the next time some of them would be willing to drive into Jerusalem on Friday night, spend the night in a hotel – even an Arab hotel in the Old City! – and experience a full Shabbat in Jerusalem. Why didn’t you suggest to the city that parking overnight in Jerusalem – from Friday night till Shabbat is over – should be made free, to encourage people to drive in before Shabbat? All these moves would have made Jerusalem, Shabbat and the religious way of life something beautiful, not ugly – God’s name would be glorified, not sullied by the dirty rubbish that you have been throwing at city workers.

Rather than rioting against what seems to be saving of a child’s life – piku’ach nefesh – didn’t you question for a moment what is going on? What are the names of Chareidi organizations that protect children – and spouses – from abuse? The Chareidi community in America has such organizations which serve the entire Jewish community – have you set up yours? I haven’t seen them involved or consulted. No, instead of blaming Hadassah hospital, the doctors and the media of a conspiracy, maybe you should begin a process of coming clean and accepting that domestic abuse occurs in all types of communities – from the most religious to the most secular, Jewish and non-Jewish. And that sometimes the police and the authorities have to be brought in to protect children and spouses. That would be the appropriate response, one that would be a Kiddush Hashem, which would win the respect of Jews and non-Jews for Torah and for Judaism.
My brothers and sisters in the Chareidi community: God’s name is not sanctified by you showing how much political muscle you have to close parking lots, to maintain the ‘status quo’, or to show that you can do whatever you like to your kids without the authorities intervening: that’s not the way to sanctify God’s name, or even your name. The way to Kiddush Hashem is for all of us to place God and God’s kindness above our own agendas, and to show that we are willing to sacrifice even your own serenity on Shabbat, our own control over our families, in order to protect the weak and make God’s name something beautiful and desirable, not something which people cannot run away from fast enough.

Asher Lopatin