Suffocating under the Rabbinate’s chokehold
Jerusalem’s Rabbinic High Court demonstrated a true feat of halakhic dexterity and masterful legal creativity in a recent decision it issued concerning a long-time agunah — a young woman denied a get (religious bill of divorce) for nine years by her husband, the latter having fled the country and disappeared. To make matters even more urgent, the woman was now pregnant, and her baby could be branded a mamzer — a child born from an illicit relationship, who is restricted from marrying other Jews for all future generations — if the Rabbinic Court did not act quickly.
Longstanding Jewish tradition maintains that in cases like this one, regarding potential mamzerim and agunot, a rabbinic court will do everything in its power, including constructing sophisticated leaps of halakhic logic, in order to clear a mamzer’s status and free an agunah. And indeed, the Jerusalem Rabbinic High Court went to remarkably creative halakhic lengths in our case at hand.
There is one catch, though: their efforts went in the opposite direction, devising innovative ways to keep the agunah’s dead marriage intact and making sure that her child’s status would be cemented as a mamzer.
The agunah’s lawyer discovered that years ago, when the couple married, there had been a critical flaw in their wedding ceremony: one of the witnesses was a convicted, self-admitted pedophile, who had served jail time for molesting a child. According to Jewish law, someone who sins egregiously is unfit to serve as a kosher witness, and absent kosher witnesses, a marriage is halakhically null. There was no need for a religious divorce because the couple had never been married.
Instead of seizing this opportunity to declare the woman free of her marriage and her baby clear of mamzer status, however, the Rabbinic Court doubled down and presented an exhaustive litany of creative reasons why, counterintuitively, the child molester should be accepted as a kosher witness and the marriage should remain intact.
The Rabbinic Court argued that the sexual abuse the former witness had committed wasn’t really so bad since he didn’t touch the child’s genitals directly, only through the child’s clothing; he had felt twinges of guilt about it on Yom Kippur, which consequently absolved him of his sins; he recites a prayer every night before bed asking general forgiveness from anyone he may have harmed, which counts as repentance; his plea bargain to commute his prison sentence — from five years to three-and-a-half years — included payment of NIS 50,000 ($13,888) to his victim, and that restitution proved that his victim had forgiven him; though he had confessed to the molestation, halakha rejects self-incriminating testimony; since no one in his current community knows that he is a pedophile, it must have been a one-time “slip up”; what he did to the boy didn’t count as forbidden homosexual relations, because hands touching genitals isn’t full-on mishkav zakhar — homosexual sex (note how these rabbis are suddenly eager to find halakhic grounds to tolerate sexual acts between males in the context of child sexual abuse, yet would never extend the same generosity to a consensual, adult gay relationship). The list went on and on.
Therefore, the Rabbinic Court concluded, the pedophile was a 100% kosher witness, and there was no room to declare the marriage null.
What a feat of halakhic creativity! What dedication and ingenuity! What an ambitious triumph of rabbinic rationalizing! All for the sake of making sure an agunah never goes free and to make sure her baby stays a mamzer.
It gets curiouser, though. About a year ago, the state’s Rabbinic Court finally freed the agunah of infamous get-refuser Oded Guez via annulment, after their own mishandling of the case led him to flee the country. The grounds that they cited for annulling the marriage was that, among other factors, one of the witnesses was lax on the laws of negiyah — he failed to properly adhere to religious guidelines mandating against physical contact with the opposite sex. In the vernacular, he fooled around. That alone was sufficient to declare him “parutz ba’arayot”– in violation of sexual boundaries — and therefore an invalid witness.
This same institution has now classified child molestation as a “small slip-up” and not nearly as egregious a crime as being lax on shomer negiyah. They accept that sexual impropriety is grounds for retroactively disqualifying a witness and therefore annulling a marriage, but selectively define said impropriety, in bad faith.
The halakhic hoops that the Rabbinic Court jumped through in order to declare the pedophile kosher is more than just a twisted manifestation of Blu Greenberg’s famous dictum, “Where there’s a rabbinic will, there’s a halakhic way.” Her statement criticized the rabbinic institutions’ unwillingness to take action, their crimes of negligence. But our case at hand is a crime of deliberate malice, an active and intentional misconstruing of halakha in service of a political end.
The Jerusalem Rabbinic High Court isn’t acting out of malice toward the woman and her baby, per se; they’re just collateral damage. The real target is the private Orthodox rabbinic court headed by Rabbi Daniel Sperber, which had already freed this same woman, via annulment, last summer.
In their decision, the Rabbinic Court calls Rabbi Sperber and his court “little foxes spoiling the vineyard,” who are usurping the state’s rabbis’ authority. The Rabbinic Court presents its own claim to power as a direct and natural extension of Moshe Rabbenu, the biblical Moses himself, bolstered by an exclusivity conferred upon them by the state. They do not see Rabbi Sperber’s annulment as an agunah’s liberation and a mamzer’s redemption, or even as a divergent halakhic approach; it is wholly treated as an act of defiance, an affront to the state’s authority, and it cannot be abided — the ordinary people caught in the crossfire be damned.
What’s a woman’s freedom when the state’s monopoly on religious services is at stake?
In Israel, marriage and divorce are exclusively controlled by the State Rabbinate and state-run Rabbinic Courts. There is no such thing as civil marriage or divorce. Performing halakhic ceremonies like chuppot (Jewish marriages) outside the purview of the state’s institutions is illegal and even punishable with prison time. Ironically, Israel is the only country where Jewish ceremonies are penalized this way.
The state Rabbinic Courts’ notorious ineptitude and corruption have led to a proliferation of grassroots, private Orthodox religious services in recent years, bucking the state’s monopoly. As private kashrut certification, private wedding ceremonies, and private rabbinic courts have gained ground, so has the backlash against them.
Recall that just over a month ago, the Rabbinic Courts pulled out their biggest, most creative guns yet in order to punish the first beneficiary of Rabbi Sperber’s private Orthodox court, Tzviya Gorodetsky. Tzviya had been an agunah for over two decades and the state’s courts had given up on her, telling her that there was nothing more they could do and that she should simply wait for him to die. After Rabbi Sperber’s court found a way to annul Tzviya’s marriage, the Rabbinic Court moved to criminally convict her former husband as a get-refuser, as a way to reinstate her status as a married woman.
Imagine if all of the same motivation, urgency, halachic prowess and legal power demonstrated by the Rabbinic Court in these stories had been used to find solutions to free the women.
Imagine how much good they could do if they used a fraction of this energy to wield Torah as a tool of justice, instead of as a weapon.
Imagine if the Rabbinic Court demonstrated caring for the Jewish people as much as it does fear for their own power.
Imagine if the women who stepped into the state Rabbinic Courts were treated as valuable human beings, deserving of freedom and dignity, instead of as pawns in a larger political game of religion and state.
On behalf of women, on behalf of children, on behalf of victims of sexual abuse, on behalf of Torah, on behalf of democracy, on behalf of every Israeli in this country who is suffocating under the Rabbinate’s chokehold on our lives and our liberty, we say: