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.