Monday, September 10, 2007

Article on the Aguna Problem in the Wall Street Journal

The Wall Street Journal carries an article about the aguna issue, written by Ms. Bari Weiss. It covers many of the issues, but I think also illustrates how difficult it is to correctly capture religious complexity and properly convey it to an audience unfamiliar with the issues.

Some examples, where I think there are problems:
In the 12th century, a rabbinic court might have sentenced Mr. HaCohen to flogging. While according to Jewish law the get must be given without coercion, the Jewish philosopher Maimonides justified flogging as merely beating the evil inclination out of the recalcitrant husband, reminding him of his own desire to do the right thing.
As written, this paragraph suggests that Jewish law is one way (without coercion) but the philosopher Maimonides felt free to supersede Jewish law with a justification. Thus, the reader might deduce, in modern times we should also be free to supersede Jewish law via some justification. First and foremost, while Maimonides was speaking here not as philosopher, but as halachist, judicial expert in Jewish law and compiler of Jewish law. Furthermore, Rambam was basing himself on a gemara, and on a Mishna about someone who vows to bring a sacrifice. The Biblical verse is analyzes to disallow coercion but then again to allow coercion, such that the conclusion is that they force him until he says "I want." The Mishna continues that the same is true for divorce.

Therefore, it is not the case that "Jewish law says X" and Maimonides says "Y." Rather, Jewish law says sometimes X and sometimes Y, and Maimonides understood flogging to be within the realm of Y already within Jewish law. Read the paragraph I cited again, in context, and you can see how the reader unfamiliar with this will get an entirely different impression.

Here is another problem in the article:

There is a way around the get trap: annulment. Rabbi Michael Broyde, a law professor at Emory University and a member of the Beit Din of America, one of the largest rabbinic courts, argues that cases where annulment is appropriate are extremely rare, and include sexual incapacity. "The more core the defect is to a marital relationship, the easier it is to prove annulment," says Rabbi Broyde. The challenge is proving that the defect was present at the time of marriage and that "had one party or another known about it, they wouldn't have entered into the marriage," he says.

Ms. Rosenfeld can get her marriage annulled on the grounds that she didn't know about her husband's violent temper when they were married. But few Orthodox men would be willing to date a woman with an annulled marriage. Still, there aren't many other options at this point. Four months of trying to convince the rabbi who performed Ms. Rosenfeld's marriage to persuade her husband to grant her a divorce went nowhere.

This is a reference to afkinu rabanin kiddushin mineih. While it appears (I believe) three times in the gemara, it is a big question and debate whether this is a closed set, or whether we can include other cases in it as well. From what I understand of Rabbi Rackman's position, he has a tradition that any place the gemara says kofin oto, since we cannot nowadays, we can annul the marriage. Others require a much narrower scope. From the quote from Rabbi Broyde, he says that it is extremely rare that it is applicable.

The next sentence that
Ms. Rosenfeld can get her marriage annulled on the grounds that she didn't know about her husband's violent temper when they were married.
is a legal argument which may well be accepted by Rabbi Rackman's Bet Din, but would likely be dismissed as untrue by Rabbi Broyde. Yet by transitioning like this, it gives the impression that even Rabbi Broyde would accept this tenuous argument. Indeed, in the next sentence, she writes that
But few Orthodox men would be willing to date a woman with an annulled marriage.
strongly implying that the annulled marriage is indeed unquestionably annulled, but it is the bias of many Orthodox men standing in the way. In reality, since the basis for this annulment is tenuous -- since any marriage which does not work out due to "incompatibilities" might just as well be declared a mistaken mekach, legal acquisition, we could nullify all marriages -- because it is tenuous, many Orthodox men would have good reason to believe that she is still technically a married woman, and forbidden for them to marry. I do not know if this was deliberate fuzzing or accidental, but it gives entirely the wrong impression.

Finally, she writes that
While Ms. Rosenfeld is held hostage, Mr. HaCohen can go about his life as usual. He can even remarry another woman without giving Ms. Rosenfeld the get, and his children would not be deemed mamzerim.
This is true, but once again misleading (unless there are facts of the case I am unaware of). He can civilly marry, but to religiously marry, with a rabbi officiating as a mesader kiddushin, he would need to give his wife a get. Otherwise, the Cherem deRabbenu Gershom would apply, prohibiting bigamy. Of course, if he went against Jewish law, since Biblical law does not prohibit bigamy, we will not be mean to his children, who by the way have no fault in it, and declare them bastards, and forbid them from marrying non-bastards, and permit them to marry actual bastards. But he would be going outside the bounds of Jewish law to do this. Unless he got 100 rabbis to sign, allowing him to circumvent this Rabbinic edict against bigamy -- an allowance only for Rabbinic law to deal with exceptional cases such as where the first wife is insane.

What kind of editor do you get to look over articles such as these? Very specific knowledge is required to catch this type of thing.

Hopefully, at some point someone will come up with a good solution for the future to the terrible plight of these, and any future agunot. So far, the rabbinic pre-nup seems effective. But perhaps other innovations will come up.

5 comments:

Sultan Knish said...

"While Ms. Rosenfeld is held hostage, Mr. HaCohen can go about his life as usual. He can even remarry another woman without giving Ms. Rosenfeld the get, and his children would not be deemed mamzerim."

It's entirely true and not at all misleading. He cannot be married by most Rabbis, barring the concubine crowd, but if he does marry, he really has very little to worry about and his marriage will be considered religiously valid if it's done correctly since bigamy does not disqualify a marriage at any level.

By contrast her remarrying transgresses an issur de'oraita punishable by death. All he has barring is a Cherem, that many claim doesn't apply today and if he is Sefardi, he can claim doesn't apply to him.

She remains trapped. He does not. The article if anything understates the matter.

Barbara said...

Thank you for this!! I am adding it to my Abuse Blog and giving you credit!

I started to write a little about my own 'agunah' problem. I am glad this is getting more press. Its misogyny and blindness to the plight of women like us - at its worst

Alieza said...

Unfortunately there are many Rabbis out there that will remarry men who have not given their wives a get- and so practically the problem is very real. Also there are many abuses of heter Meah Rabanim, where a friend of such a husband will have 100 yeshiva bochrim sign a paper they have barely read- certainly without looking into the case or meeting the so called "crazy' wife.

Overall the practical problems are more pressing and more embarrassing for the Jewish establishment than the halachot themselves.

An article like this will never capture all the complexities because the topic requires books and books of material.

Yes it is true that a lay person in the US reading this article will not understand the relationship between Mishna and the Rambam (especially because we Jews don't agree as to what weight to give to different Rishonim in a given psak). However the purpose of the article may be to put pressure on Jewish organizations and Rabbis not to teach Washington post readers the complexities of how to decide psak.

What the article does capture is that there are tools within halacha and within Jewish tradition that are not being used by the current batei din. If it makes you uncomfortable that we Jews come out sounding bad- I think it should.

joshwaxman said...

that may well be, but then the article should mention the heter meah rabbanim and the problems that arise.

Perhaps there was not enough space allocated to allow her to do that.

I would imagine, also, that the purpose would not be to put pressure by presenting information which is true but misleading. A newspaper's first task is to inform instead of to mislead. A few extra words here and there could have served this function.

A Friedman said...

There IS a practical solution to the Agunah problem: ensure that all couples sign the pre-nuptial agreement put out by the the Orthodox Caucus and Beth Din of America. The agreement is available at http://www.ocweb.org/index.php/pre_nuptial/article/updated_prenuptial_agreement_with_instructions/.
The RCA recently called on its rabbis to insist on the pre-nup being signed as a condition of officiating at a wedding.

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