On the storm rocking the rabbinical courts

For Hanna, this was a liberating moment that put an end to a period of suffering and uncertainty. Her husband was in a coma, and according to the doctors, were he to wake up and return to function as a husband it would be considered a “rare medical miracle.”

By BATYA KAHANA-DROR
September 8, 2015 21:42
Council of the Chief Rabbinate

The rabbis of the Council of the Chief Rabbinate. (photo credit: CHIEF RABBINATE)

 
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On the eve of Purim last year, Hanna (not her real name) was summoned to the rabbinical court in Safed to receive a get or Jewish writ of divorce from her husband through an agent appointed by the rabbinical court. Six-anda- half years after her husband had been wounded in a motorcycle accident and was rendered comatose, Hanna’s new life began, as she held her long-awaited get in her trembling hands.

For Hanna, this was a liberating moment that put an end to a period of suffering and uncertainty. Her husband was in a coma, and according to the doctors, were he to wake up and return to function as a husband it would be considered a “rare medical miracle.”

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For the Jewish world, this was a significant breakthrough in one of the most painful issues – that of aginut (“deserted wife”). But for the history of Judaism and Jewish law, this was a foundational moment, for this was indeed a dramatic change of direction on the question of the competence of rabbis in our days to forge a new halachic path by way of innovation and to rule as has never been ruled in any rabbinical court in Israel or anywhere, and certainly not in any official judicial tribunal in the State of Israel.

The judgment, signed by the president of the court, Rabbi Uriel Lavie, and rabbis Hayyim Bazak and Yosef Vigoda, stated: “The following judgment, although it is a great innovation, is properly founded on the tenets of the halacha, and it is right to rule where there is a case of total igun.”

The principal points of what follows in relation to zikkui get (a legal mechanism whereby the court, acting as a constructive agent, gives the get) in the case of an insane person, received the approbation and explicit support of one of the greatest sages of the generation, a retired dayan of the supreme rabbinical court, Rabbi Zalman Nehemiah Goldberg, who wrote as follows: “After having read what... Rabbi Uriel Lavie wrote... and his words are absolutely correct, and I concur in his opinion that [the wife] should be released in the special case before us. Zalman Nehemiah Goldberg.”

It is impossible to ignore the new reality created by modern medicine, by means of which the life of a person lying in a coma can be prolonged for many years, and the wife is left in a state of continuing aginut, a “married widow.” This fact served, in the judgment, as a basis for the new approach of the dayanim (rabbinic court judges). Apparently, in the distant past the phenomenon of people who suffered serious head injuries and remained for many years in a vegetative state was not known. Without modern medical techniques such people died quickly, and we do not, therefore, find discussion in the rabbinic literature of the question of saving a woman from aginut when her husband is in such a state. The importance of this judgment is even more marked in view of the fact that the very same panel of dayanim (except for one) one-and-a-half years earlier handed down the exact opposite decision, the meaning of which was to condemn Hanna to remain an aguna.

There was no change in the husband’s condition, and nevertheless, one-and-a-half years after that judgment, everything changed and Hanna received a get. What happened? There were a number of factors involved, and principally the halachic effort made by the dayanim, their commendable courage, the public and media storm that we succeeded in creating, which left the subject on the agenda, the direct and indirect approaches made to the chief rabbis, to the regional rabbinical court, turning Hanna’s personal problem into a broad problem of the halacha, the law, the entire state and specifically of the institution of the rabbinate.

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I still believe that ultimately, all this would not have happened were it not for the deep sense of responsibility of the Safed Regional Rabbinical Court toward the woman herself and toward making innovative halachic rulings.

In view of this decision and all of the above, Hanna was summoned to the Rabbinical Court; and Hanna received her get, signed and sealed on March 13, 2014.

This momentous event became, quite understandably, the opening salvo in a struggle that has continued to this day, the climax of which is expected to occur in the near future, in the battle over the appointment of Rabbi Lavie to the Supreme Rabbinical Court next week, and in the hearing on the appeal lodged against the above decision to the Supreme Rabbinical Court.

The storm created by the decision has long spread beyond the walls of the academy of learning and has become personal, violent and threatening. Rabbi Lavie, who is considered one of the senior judges, and a halachic expert of the highest order, has been the target of abuse and of accusations of being a “mizrocknik” [identifying with modern Religious Zionism] and bowing to the Mavoi Satum organization and its director, and so on and so forth. At this moment, a widespread campaign is being conducted against him, to disqualify his candidacy for the Supreme Rabbinical Court, to the extent that Justice Minister Ayelet Shaked, who is a member of the Committee for the Appointment of Dayanim, has stated that she would not support his candidacy.

Rabbi Zalman Nehemiah Goldberg, who gave his express approbation to the judgment, came under heavy pressure, and was forced to sign a note implying that he withdrew his approval. Six months late, a haredi (ultra-Orthodox) lawyer by the name of Raphael Shtub lodged an appeal with the Supreme Rabbinical Court in the name of the husband (who is in a coma, and of course never gave him power of attorney) and in the name of another, unknown rabbi by the name of Reuven Cohen.

Amazingly, and contrary to all rules of procedure and of logic, the appeal began bouncing around from the Supreme Rabbinical Court to the regional rabbinical court and back again – despite the fact that the regional rabbinical court in Safed dismissed the appeal, and ruled that the appellant lacks standing: “And therefore, insofar as the question of whether Adv.

Raphael Shtub has standing as a litigant joining the case, the answer is negative.”

In the coming months, I will be forced to defend this judgment of the rabbis of Safed in front of a panel of the Supreme Rabbinical Court, headed by the president of the court, Rabbi Yossef, who has already expressed his disagreement with the judgment.

And six weeks ago, Rabbi Yossef called upon Rabbi Lavie to withdraw his candidacy for the Supreme Rabbinical Court. Rabbi Lavie refused.

What shocked me possibly more than anything else is that in the course of these months of the storm rocking the rabbinical world, the rabbinical establishment was deafeningly, illogically silent.

This judgment cannot be invalidated. Even if the Supreme Rabbinical Court decides that the judgment was mistaken, from a halachic point of view Hanna is a divorced woman. This is the new reality that the halacha created for her. It is indeed possible that Rabbi Lavie will not be appointed to the Supreme Rabbinical Court.

His chances decreased after the justice minister joined those who oppose his appointment. However, the significance of the step he took cannot be belittled and cannot be discounted. It is possible that this judgment is a very small step on a long journey, toward balancing the patriarchal nature of the halachic world. But it is a truly important tiding for the status of women in halacha, from the perspective of the possibility of innovation in decision-making.

The flexibility displayed by the Safed dayanim relied on existing halachic strategies, in cases in which there is a gap between the reality or the perception of reality and the halachic norm. (In fact this flexibility characterized the decisors of Jewish law throughout the generations.) But sadly, in recent centuries, the threat to the authority of the halachic judicial system increased, causing it to become petrified and inhibiting the liberty of many halachic decisors to invoke a variety of halachic instruments.

Another objective problem which posed a great difficulty for acceptance of the decision is the absence of a centralized halachic authority which is accepted by the entire Jewish people in our day. The reaction to and the criticism of the judgment could often be summarized by the single statement: “Who are you to introduce such an innovation?” This is an objective difficulty, which prevented and continues to prevent any courageous decisor of the halacha from deciding in a way that is creative and free, even when the need to do so is acute, as in our case.

What is particularly inspiring to me in what the Safed court did, and to which I attribute the halachic outcome, is the extent of commitment of the rabbis as decisors of the halacha to the woman herself. They were not happy with the first decision, and they went back and took it upon themselves to find a solution, even though the responsibility had already passed on upwards to the Supreme Rabbinical Court.

Rabbi Lavie could easily have lifted his hands heavenwards and declared that he had done everything he could for this particular aguna, but that the halacha did not allow for any further action – as many before him had done. However, unlike other decisors, Rabbi Lavie took upon himself the entire responsibility for finding a solution to a problem that was created entirely from within the world of the halacha.

He saw himself, by virtue of his function as a dayan of the regional rabbinical court to which the woman had turned, as responsible for providing a solution, and for this purpose he left no stone unturned in searching for a way to do so.

Whoever reads this judgment is impressed by its construction, and feels that the decisors are leading him, one small step at a time, toward the obvious solution, which relies on laws and principles of the legal system and is guided by halachic logic.

The question of the halachic criteria according to which this halachic flexibility was possible still hovers over the judgment, and the big question remains of whether in the absence of a true and sincere desire to help the woman and to release her from her aginut, the rabbis would have arrived at the same conclusion, and if they indeed had set this moral target for themselves, does this disqualify what they did? This in fact is the crux of the criticism against the judgment, even though it is not explicitly stated. The critics point to it as an example of absence of criteria and abandonment of all formal constraints of the halachic system, as well as overstepping the boundary between the variable interpretative element and the iron-clad rules of halacha that cannot be changed. And indeed, even though there is no direct reference in the judgment of the Safed rabbis to the question of the status of the woman in marriage and ethical perspectives in relation to her situation, the influence of these issues certainly hovers above their words, and is nurtured by their statesman-like world view and their responsible approach.

It is evident that the working supposition of the rabbis when searching for a solution was that this was not the intention of the halacha – to bind a woman to her husband with iron chains in an ongoing situation in which there is no way of communicating with the husband.

Alongside the halachic discussion and its implementation in the present case, one can identify considerations of public policy and of morality as components of the ideal halachic conception – considerations that created the wide context that allowed for the innovation.

Without recognition of the human, moral problem that harms the woman’s dignity in that she is an aguna – a problem which is contrary to the halachic ideal – such a huge halachic effort to find a solution would not have been made.

Needless to say, the moral “agenda” that guided Rabbi Lavie to find a solution to the problem of the aguna is not an innovation of the court; on the contrary, it guided the halachic decisors over the generations, and finds expression in dozens of statements and passages of the early decisors and later decisors, along the lines of the familiar statement: “Because of aginut the rabbis were lenient.”

And finally, my starting point in the two similar cases of women who are agunot who I am presently representing has changed: it begins with the new halachic reality that was created by the judgment of Rabbi Lavie – that same Rabbi Lavie whose path some are trying to change and whose spirit some are trying to break. This is a judgment whose ramifications go well beyond the individual case, well beyond the problem of agunot and mesoravot get (women whose husbands refuse to grant them a divorce), a judgment which is the core of our continuity as a relevant, halachaobservant society.

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