Solving the agunah problem means finding the right address

In the wake of the current discussion of the Gital Dodelson case (about which I know nothing more than what has been written in the New York Post)[1], I thought I would take the opportunity to discuss the origins of the agunah/mesorevet gett problem in our time as I understand them.

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Framing

Divorce in Jewish law, like marriage, is a private ceremony that works along the model of contracts. Whatever the benefits of such a system may be, the Achilles heel has always been the possibility of igun. In order for a couple to be divorced a man is required to give his wife a gett, so if the man is unavailable or unwilling to do so, this leaves a woman stranded as married yet not married—chained to a dead marriage and a lost or recalcitrant husband, unable to move forward with her life.

Igun Then and Now

Through various epochs of Jewish history, the problem of women stuck in dead marriages has expressed itself in different ways. Throughout most of history, the agunah problem was minor and usually involved husbands who were lost in battle or at sea, or they died on business trips. In the period before long distance communication was a reality and documentation of travelers and deaths was haphazard and imprecise at best, the possibility that a woman’s husband could die on a trip and she never know about it was a serious one. In the Geonic period, there was a small but real attrition to Islam, where, once converted, the men would not participate in a Jewish religious divorce.

Nowadays, the problem is neither lost nor “conscientiously objecting” husbands. The usual case of igun in the modern world comes from husbands who withhold a gett as a bargaining chip for money or custody, or merely as a spiteful act of retaliation or control. That exploitation of this type occurs frequently nowadays but was virtually non-existent in the past speaks to drastic changes in society.

Throughout most of history Jews lived in Jewish communities that were relatively legally autonomous; all marriages and divorces were under the thumb of the rabbinic courts. Even though, technically speaking, one does not need a rabbi for either ceremony, in a closed religious community there would be no way for a man to move on with his life and find a new partner if he did not divorce his wife first. Since the Christian and Muslim authorities did not deal directly with Jewish life-cycle events, the only weddings and divorces were Jewish, therefore, the man would have no other option but to go through with the gett. Additionally, since the local batei din had jurisdiction, they could, essentially, force the man to give a gett by means no longer available in modern society. Finally, in pre-modern society, it would have been unthinkable for the man to leave his wife and move in (publicly) with another woman. However, in our day and age, if a man wishes to move on with his life, it is much simpler.

Rabbinic Responsibility

Although there are a number of angles from which to approach this problem, I would like to focus the lens on what—to my mind—is the most significant contributing factor to the current epidemic of mesuravot gett: the rabbinic community.

Let me clarify: Certainly, the villains in the story are not the rabbis but the obstinate and recalcitrant husbands. However, every generation will have its villains or its problems. Instead of focusing on problems, the quest for solutions must be aimed squarely at the rabbinic community since we are the custodians of Jewish law. The Talmud declares that the Torah is not in heaven (lo ba-shamayim hee), meaning that God does not directly control the evolution and interpretation of halakha over time, nor does God solve new problems. Interpreting halakha and applying it to new challenges is a job given to the rabbis and they are empowered by the Torah to do just that.

For the most part (there are exceptions), as I have written previously, the rabbinic leadership has failed to take charge of this issue. Instead, the overwhelming response of the rabbis has been to throw the burden of finding a solution onto others. This passing of the buck finds its expression in a number of different ways.

  1. Agunah activists, whether from Agunah Inc., GET, or ORA, are given the charge—implicitly or explicitly—to assist the agunot through their crises, whether by helping them navigate the beit din process or by petitioning the recalcitrant husbands. Although I believe that all of these organizations are wonderful and doing important work, it really isn’t their responsibility. They are picking up slack for those unwilling to do their task.The husbands are blamed for playing the system, for being greedy, for being cruel or obstinate. In any given case any and all of these pejorative adjectives may be true, but blaming the husbands in modern times is like the medieval rabbis blaming boats for sinking, bandits for robbing, and husbands for dying in places where there was no decent system for recording deaths. Recalcitrant husbands are the modern day version of sinking ships—phenomena that cannot be controlled. The rabbi’s job is not to control the uncontrollable but to make sure that halakha runs smoothly given the inevitable problems any given society faces.
  2. Government interventions are invoked. If we cannot control the husbands, many claim, the government can. “We need,” the claim goes, “government intervention, laws about giving getts.” Israel has a variety of sanctions it can and (sometimes) does employ against recalcitrant husbands; some states in the US have penalties for not giving the gett which affect asset division. In my opinion, worse than a distraction, this is a dangerous statement from the vantage point of halakha on one hand, and the vantage point of the secular government on the other.

From the vantage point of halakha, asking for government involvement is the equivalent of saying that halakhic marriage and divorce cannot succeed without the secular government; it is a sign of existential failure. There are many other reasons that government involvement is problematic as well: high legal fees to pursue the civil court remedies, husbands immune to enforcement of civil “gett” laws because there are no assets, hit and miss outcomes because some judges shun invoking gett laws because of their commitment to separation of church (synagogue) and state. For all these reasons, but especially the existential one, the halakhic community must not pass the buck to the civil courts.

From the vantage point of secular authorities, there is a serious ethics question, since according to any outsider (i.e. non-religious) assessment agunot are not chained at all—they are chaining themselves due to their own beliefs. This is especially true in the US where a secularly divorced woman without a gett can always get remarried, just not halakhically.[2] “What about the children?” one may ask. “Won’t they be mamzerim?” Yes, but again, from the vantage point of a secular government, her children are only mamzerim according to her religious beliefs. There is nothing stopping them from marrying whomever they want in the United States. Should government get involved in what amounts to private religious belief and taboo?

Let’s imagine that a couple gets divorced. The man tells his ex-wife that if she marries someone else he will put a curse on her. He also wants 80% of their assets including the house. The woman, who believes in the efficacy of curses, panics and feels that she will have no choice but to give him what he asks, unless the government stops him. She would like the government to arrest him or, at least, threaten to penalize him if he invokes the curse. Should the government define threats by way of cursing to be harassment? I believe they should not. Certainly, the man is being cruel, even wicked, but in the end, these are matters in which the government cannot be involved since, from the secular government’s perspective, they are simply matters of subjective belief. In my view, the government getting involved in gett-related legislation (especially in the US)  is no different, and asking the government to do so makes religious Jews look ridiculous and primitive in the eyes of our neighbors—it is a lose-lose solution.

Many rabbis throw up their hands and blame God and Torah. “We didn’t invent the rules,” they say; “we just follow the will of the Almighty.” In my opinion, this claim is dodgy. Throughout history the rabbis have learned how to apply halakhic rules creatively and sensitively in order to ensure that halakha would remain a force for good in the world and not an obstacle to normal life. The moment Judaism can no longer do this, Torah loses its status as a Torah of life and becomes a Torah of death. This cannot be allowed to happen, and yet, the Torah has become just that to a large number of committed religious women. It is time for the religious Jewish community to change this.

Are there halakhic solutions? Yes, but most rabbis tend to emphasize how tricky, how complicated, how questionable they are. When some brave rabbis have put forward suggestions, whether it be Rabbi Eliezer Berkowitz, Rabbi Emanuel Rackman, or Rabbi Shlomo Riskin—they have been faced with aggression from the rabbinic community. I don’t mean to say that criticism is illegitimate—it is also the job of the rabbis to make sure that the solutions they design fit well with the halakhic system. However, the criticism has not been constructive; if anything the aim appears more like obstruction than construction—but the latter is what we need. To design a successful solution, I believe we must begin with the premise that there is one, or even more than one, and that it is our obligation to figure out which one (or ones) we will adopt.

Conclusion

Although the above analysis and my previous post on how to go about this will not convince some Orthodox rabbis and communities, I believe that we must create a large enough network such that any agunah will have a place to turn. We must commit to these women that we will have them freed from their dead marriages, that we will perform their future marriage(s), and that we will defend their children from the pernicious claim of mamzerut. In the end, there is no way to convince everyone, but we must do what is right and I am confident that, in the end, our community will be stronger for it and our Torah will again be a Torah of life for all who cling fast to it.

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[1] See also Rabbi Eliyahu Fink’s nice analysis of the problem as well as, for completion’s sake, the counterclaim of her (ex-)husband’s family.

[2] The Israeli problem is more complicated from a government standpoint, since there is no system of secular marriage or divorce for Jews. Legally speaking, however, there is nothing to stop the woman from entering into a common law arrangement with a new partner. However, on a practical level there are some complications even with this: There are still government benefits that are available only to officially married couples. Additionally, the inability to marry officially imposes legal expenses on common law couples who need to pay legal fees to structure their relationship in ways that the law automatically structures the lives of officially married couples. Finally, even with private domestic partnership agreements for common law marriages, the risk of litigation over dissolved partnerships and inheritance is greater than for an officially married couple (not that financial disputes are absent from ordinary divorces.) I thank Susan Aranoff for clarifying these points for me.

Posted on November 17, 2013

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