Thursday, December 03, 2015

Agunah - Dissension Among the Ranks

Tamar Epstein (Forward)
I never thought I would see the day when members of the Agudah Moetzes would have a public disagreement on a matter of such great Halachic magnitude. But that day has arrived.

Not that it hasn’t happened before.  Even going back to the days of the Mishnah, the Tannaim (great rabbis) of that era had debates of even greater magnitude. But in our day in Agudah circles it is rare if it happens at all. Even when there is dissension among Moetzes members, their rules require that the majority opinion be publicized as unanimous. I guess they feel that this gives their pronouncements more weight. And yet two of its members have diametrically opposite Halachic positions on a highly sensitive issue – albeit outside the walls of the Agudah.

The issue here is whether the concept of Kedushei Taus may be applied in the case of Tamar Epstein, a woman denied a Get by her ex husband (they are civilly divorced), Aharon Friedman.

R' Shmuel Kamentesky
A woman in this situation is called an Agunah – commonly referred to as a chained woman. Although technically it is not accurate to call her that since it applies to a woman who does not know whether or not her husband is alive, the result is the same. They cannot get married, since doing so would be Halachic adultery - the serious violation of a married woman having sexual relations with another man. And children of such a relationship would be considered Mamzerim – a category that prevents them from marrying someone that was born of a non adulterous relationship. Which is the vast majority of Jews.

I have written about this case in the past. Tamar Epstein is Orthodox. And because her husband refused to give her a Get, she could not get remarried. Her case was taken up by many Rabbis, including Rav Hershel Schachter. Friedman was banned by many Shuls in an attempt to persuade him to willingly give his wife a Get. Public rallies were held in support of Tamar. Even the secular media was enlisted in her campaign. But it was to no avail. He refused – making unreasonable demands in exchange for it. This has been going on for years.

R' Aharon Feldman
This is where Kedushei Taus comes in. Kedushei Taus is an annulment of a marriage that is deemed to have occurred under deceptive circumstances. The Gemarah explains that when a woman finds a serious flaw in her husband (which he hid from her) after they are married - a flaw so bad that she would have never married him had she known - it is considered as though the marriage never happened. And of course that makes her free to marry someone else.

This Halachic device was tried before by the well intentioned Rabbi Emanuel Rackman - to the complete rejection of virtually all Poskim. From right to left.  Including Rav Yoshe Ber Soloveitchik. Rabbi Rackman claimed that had a woman known her husband was abusive she would have never married him. But all Poskim agreed that this was not a flaw significant enough by Talmudic standards to be considered a Kedushei Taus. There have been similar attempts to utilize this type of Halachic device more recently which have been met with similar rejection. 

But in Tamar Epstein’s case something strange has happened. Kedushei Taus was utilized by several very prominent Charedi Poskim, one of them a member of the Moetzes. The flaw is mental illness. Which appears to have been firmly established in her ex husband’s case.

It appears that Rabbi Sholom Kamentetsky has Paskined that Tamar’s claim that her husband was mentally ill unbeknownst to her at the time of the marriage - was a valid one. Had she known, she would have never married him. R’ Sholom’s father, Agudah Moetzes member and ‘Philly’ Rosh HaYeshiva, Rav Shmuel Kamenetsky was on board with his decision. It has also been reported that Agudah Dayan Rav Shnmuel Fuerst is on board as well.

Last  September Rav Nota Greenblatt, a courageous Charedi Posek in Memphis, performed a marriage ceremony for Tamar and her new husband, Adam Fleischer.

The condemnations came fast and furiously. The use of Kedushei Taus in this case was deemed improper by a number of Poskim, including YU’s Rav Hershel Schachter, and Charedi Poskim like R’Moshe Sternbuch, and by fellow Moetzes member Ner Israel Rosh HaYeshiva, Rav Aharon Feldman. They proclaimed her still married to her first husband, that her new marriage to Adam Fleischer was an adulterous one, and that any children of this union would be Mamzerim.

I cannot conceive of too many situations in Klal Yisroel that are a bigger mess than this. Rabbis Kamenetsky, Greenblatt, and Fuerst are not some rogue rabbis out to undermine the system - or to use loopholes too freely. These are not rabbis that cater to the feminist spirit of the times. These are not rabbis that are moved to compromise Halacha because of their legitimate sympathy for the plight of the Agunah.

These are highly respected, knowledgeable Charedi Poskim. Serious rabbis that follow every jot and tittle in the Shulchan Aruch - the Code of Jewish Law. They Paskined here based on their solid analysis of Halachic sources on Kedushei Taus and found that this case allowed for its legitimate use. They should be respected for both their knowledge and their courage.

But that is not what’s happening. They are being besmirched and vilified on Rabbi Daniel Eidensohn’s blog. Which is outrageous and ought to be protested in the strongest possible terms. 

Clearly one may rely on Poskim such as those Tamar relied upon. She has done nothing wrong. But the fallout is still there. Because of the controversy, her children will be tainted with doubt. Even if they are allowed to marry fellow Jews and welcomed into any Jewish community - there will always be a question in the back of many minds about their status.

I am personally not qualified to judge here. Obviously my sympathies are with Tamar. My heart says she should be considered legally married to her new husband. And she certainly ought to be left alone. But my mind is in doubt. Was this a legitimate use of Kedushei Taus or not? I don’t really know. Because I respect the Poskim on both sides of this issue.

I don’t know how Tamar is taking all this controversy. But it can’t be easy – even if she is putting on a good face. My heart goes out to her.