Is Your Torah Community Making Mamzerim?
by Rabbi Dovid E. Eidensohn
A provocative title! Is your Torah community making mamzerim? I have discussed the issues we write about in this article with the senior rabbis of the world, and I have to tell you, yes, there is a great fear of mamzerim today. There are many Orthodox women who are remarried with invalid GET divorces, or even without any GET, with some invalid "permission" to remarry. Their children are mamzerim or, in some cases, when the validity of the GET is in doubt, the children are also in doubt, maybe they are mamzerim, maybe now.
When you marry your children and my grandchildren get to marriage age, there will be a great problem of mamzerim. Many people who go to shull, attend Yeshivas, and are generally Torah Jews, will have children who are considered to be possible mamzerim, or definite mamzerim, by other Torah Jews. How can this be?
Today, marriage is not working very well. Divorce is very common, even among Torah Jews. Complicating matters is a gender war, known as feminism, whereby women have learned that by talking and being tough they get somewhere, wherever it is they want to go. In the modern Orthodox world, and even in parts of the Haredi community, rabbis have no power to really fight the feminists. Therefore, they make rulings in divorce cases that defy the Shulchan Aruch and Poskim to "free" women from being "agunoth." Rabbeinu Tam said, "It is preferable for a woman to be an Agunah her whole life than to get a doubtful GET." That is the traditional Torah attitude towards a woman with a problem GET. Better no GET than a questionable GET. Today, however, the feminist movement in the Orthodox world will have none of that. They want a GET, period. This has led to a situation where many women are remarrying with various excuses for a GET that would not past muster by the standards of the Shulchan Aruch and Poskim still in force in Haredi communities. Therefore, from now on until Moshiach comes, the Orthodox community will have a pool of children whose status of Yichuse is highly suspect, and meticulous Torah Jews must not marry them. For producing the shame and pain of a mamzer, the "lenient" rabbis and activists who want to "free" women even by making mamzerim and adultery will suffer a terrible punishment in this world or Gehenum. But they are not going to let that stop them. Feminism comes first. The Torah will have to be bent to make place for the freedom of the feminists.
Who are the people making these problems?
We could compile a list of organizations and individuals who promote invalid solutions to a broken marriage. We could even blame communities for not educating everyone that tormenting an Agunah is a hideous sin, no matter what excuses there are. But for now, let us talk about the halachic issues involved. Only then can we understand what is wrong with the program of those who bend the halacha.
The Torah says that a married woman can be freed only by the death of her husband or a proper GET. Also, a GET must be given by the will of the husband. Therefore, the Rackman "Beth Din" founded to give women excuses to remarry based upon "a mistaken marriage" without a GET and without the death of the husband will be punished for every act of adultery and every mamzer it produces. Hundreds of Orthodox women have gone to this "Beth Din" and are prepared to remarry. If they do, or if they have remarried, they are adulterers, and the children from them are mamzerim.
It is the duty of every community to publicize this. Any woman who goes to the Rackman Beth Din is an adulterer, and any children are mamzerim.
This "Beth Din" is the worst problem facing the Torah community, because it has enormous funds and by playing on the hopelessness of trapped women and on the "mercy" of Jews, and the backing it receives in the apikoress media, including some published by so-called Orthodox Jews, it thrives. All who back such a heinous enterprise will be punished for every mamzer they produce, and for the many adulterers they produce, and for the ferocious attacks on legitimate Torah authorities who are attacked and smeared for not having pity on Agunoth.
Another area of concern is a GET given under duress. A GET must be given by the free will of the husband. Yet, we can, under certain circumstances, force the husband to divorce, even with beatings. How can we resolve this contradiction?
The answer, according to the gemora and the Poskim, is that a husband who knows that the Torah demands a GET, but whose Evil Inclination obstructs his ability to decide to divorce, may be coerced. The husband finally accepts the will of the Torah as taught to him by his Beth Din, the Beth Din of the community, or the great rabbis of the Jewish people. He knows that if they demand a GET it is because the Torah demands it. When he is coerced to give the GET, he willingly gives it, because he realizes this is the demand of the Torah.
This does not mean that everyone may force a husband, or that any rabbi or group of rabbis can coerce a husband. Only when the husband has accepted that a particular Beth Din or group of rabbis truly represent the Torah's opinion does coercion work. It goes without saying that if the rabbi of the husband tells him he does not have to give a GET, but other rabbis beat him to give a GET, that the GET is invalid. The husband follows his rabbi, not the rabbis who are strangers to him, or rabbis he has not accepted to guide him in Torah.
Today, we have rabbis who force a GET out of a husband who has nothing to do with these rabbis, and who has rabbis who tell him he is not obligated to give a GET, and that he may not be forced to give a GET. Such a husband when forced will give a GET invalid, because he does not believe that the Torah requires him to give it, as his rabbis have taught him. What other rabbis think is not important to him, so the GET is invalid.
In a similar vein, we have a situation whereby some rabbis who may even be scholars, decide that a certain husband should be forced to divorce, but other rabbis disagree. Clearly, this is a questionable GET, because not everybody agreed that the husband can be forced.
In Torah communities today, we have activists working under rabbis who believe in forcing husbands who are not their disciples, who do not accept their authority, and even in cases where other rabbis may decide that no coercion is permissible. Children born from such a GET may be mamzerim.
Not all problems of mamzerut have to do with beatings, however. Other pressures can invalidate a GET, such a fear of being in contempt of court, which means going to jail, or fear of a fine or financial loss. Today, many women go to court and pressure the husband with all types of fear and threats and demand a GET, or else. Such a GET, given under duress, is questionable, and the children born from it may be mamzerim.
There is another type of duress, a passive one, taught by Rabbeinu Tam, a major Tosafist, but not quoted by other major authorities, such as Rashbo and Rosh. Rabbeinu Tam allows for the organized and unanimous rabbinate of a community to ostracize a husband who refuses to give a GET. This ostracizing is a passive one. People do not talk to him, they do not visit him when he is sick, they do not do business with him, etc. But they may not do a positive thing to pressure him actively.
This type of pressure is now being applied freely in some Orthodox communities, but it is being done even when Rabbeinu Tam would not permit it. When a GET is given by ostracizing without the permission of Rabbeinu Tam, but through the efforts of activists, the GET may be invalid, and the people who brought the pressure have a share in a possibly invalid GET.
First of all, Rabbeinu Tam permits the united rabbinate of a community to ostracize the husband. He does not permit a group of activists, nor does he permit a rabbi here and there to institute this. The ostracizing is done only when the official Beth Din and the senior rabbis of the community decide to do it. As we explained, the coercion only helps when the husband knows that this is indeed the will of the Torah. The fact that rabbis here and there pressure the husband does not convince him. Surely if his rabbis are opposed to the ostracizing it is worthless and will perhaps produce an invalid GET.
Secondly, some hold that the ostracizing proposed by Rabbeinu Tam is only valid when the husband is clearly in violation of the teachings of the sages, and who has done something that would, in Talmudic times, require a coercion to divorce. Even if today we don't do the physical beatings done in the Talmud, it may still do the ostracizing proposed by Rabbeinu Tam. According to this opinion, when a wife demands a divorce because "my husband is repugnant to me," but the husband is not one of those in the class that would be forced to divorce by Talmudic teachings, we may not apply the ostracizing of Rabbeinu Tam. This is the opinion of the Vilna Gaon, that the ostracizing proposed by Rabbeinu Tam may only be given to a husband who clearly has violated the teachings of the sages, or who has done something to qualify for coercion. If a woman simply demands a GET this does not apply and the husband may not be coerced with the ostracizing proposed by Rabbeinu Tam.
Thirdly, the Vilna Gaon and others maintain that Rabbeinu Tam only approved of ostracizing the husband if he could escape the pressure by going to another town. That is, even passive pressure may not be applied if the husband cannot escape it. If so, when an activist group goes after a husband and pursues him wherever he lives, the pressure may invalidate the GET, and the GET may be a "GET MEUSO" a forced GET which is invalid.
Fourthly, even though Rabbeinu Tam proposed ostracizing, and even though some communities used it, in latter generations, after the Rishonim, others decided against using it. The reason for this change may be as we explained earlier, that all forcing and coercion can only work when all of the rabbis are united, and there is no dispute. In latter generations, as the authority of the rabbis was split into different communities and different rabbis said different opinions, it was increasingly more difficult to assure that a coerced GET would be one that all rabbis agreed had to be forced. If some rabbis, even a minority, opposed the GET, the husband may accept their opinion and then the coercing produces an invalid GET. Therefore, all forcing ceased in many communities.
In Israel, not long ago, a woman married twenty years sued her husband in rabbinical court for a divorce. She claimed that her husband was unable to have a child, and this was proven by doctors. The lower court ruled, as the Talmud does, that in such a case the husband must give a GET, because the woman needs a child to help her in her old age. However, the rabbinical court would not permit Rabbeinui Tam's ostracizing the husband, as this may lead to an invalid GET, because it is coerced.
Rabbi Ovadyo Yosef then got the case, and he gathered to him two of the great rabbis of Israel, and the three of them permitted the program of Rabbeinu Tam, to ostracize the husband with passive means, as we explained above. We see from this that ostracizing must be done by the greatest rabbis, and then the husband accepts his fate. But if the rabbis are not so great, the husband may not accept his fate, and the GET would be invalid. Furthermore, the ostracizing done in the above case was not for a woman who claimed "my husband is repugnant to me," but for a much stronger claim by the woman, when her husband is unable to father a child. This brings us to the next issue, when we may and when we may not consider pressuring the husband.
The husband may not be pressured unless a rabbinical court decrees this. The fact that a woman goes to court and sues her husband, and then demands a GET, does not qualify the woman as an Agunah, and anyone who pressures the husband is doing a sin and may invalidate the GET.
Pressure is a Beth Din prerogative, not an opportunity for activists, or even for individual rabbis to exploit. Therefore, a woman who goes first to secular court and then turns to Beth Din to pressure her husband is only very flimsy grounds. Let us explain this in more detail.
(To be continued)