Rabbinate is overstepping its boundaries on conversion, divorces – opinion

Moreover, the glory of our Talmudic literature is that it is profoundly pluralistic, encouraging dissent and respectful of different traditions – as long as the disputants have the proper intellectual credentials and accept the overall system of Halacha (Jewish law) and lifestyle. Witness the following Talmudic passage: 

“Rabbi Abba said in the name of Shmuel: ‘For three years the academy of Shammai and the academy of Hillel disputed. These said, “The Halacha is like we [declare it to be]” and those said, “The Halacha is like we [declare it to be].” A small Divine voice descended [from heaven] and said, “These and those are the words of the Living God, and the Halacha is in accordance with the academy of Hillel.” But if these and those are the words of the living God, why did the academy of Hillel merit the law to be established in accordance with its positions? Because they are gentle and tolerant and study their own opinions as well as the opinions of the academy of Shammai, and they even cite the opinions of the Academy of Shammai before their own opinions.” (Babylonian Talmud, Eruvin 13b)

According to this source, in the rabbinical disputes between the disciples of Hillel and Shammai, both sides represent the words of God and both sides express an absolute truth of Divine origin. God Himself, as it were, provided for alternate possibilities depending upon the circumstances, the temper of the times, and the individuals in question. Pluralism, at least in terms of differences of opinion in the realm of Jewish law, is built into the very fabric of our system and appears to be a necessary expression of Divine will.

The overwhelming majority of Talmudic sources confirm this open view of pluralism – the idea that “these and those are the words of the Living God.” In fact, this phrase appears many more times in the Babylonian Talmud (e.g., Gittin 6b and Rosh Hashanah 14b). The Babylonian Talmud in Hagiga 3b says, “Those who declare impure and those who declare pure… were each given their view from [the] one Shepherd.”

If the exigencies of the time and/or the situation demand it, it is certainly permissible for a religio-legal authority (posek) to resolve a halachic problem in accordance with a minority decision. So teaches the Tosefta in the beginning of the Tractate Eduyot, and this is the accepted procedure in normative Halacha. (See my book The Living Tree, Studies in Modern Orthodoxy, Maggid Books pp. 9-30.)

As you can see, our halachic structure is hardly monolithic, and allows different communities to have individual rabbinical authorities who are sensitive to the background of the questioner as well as being thoroughly knowledgeable in the law at hand. Specifically issues of divorce and conversions, the very issues which the Chief Rabbinate insist on reviewing, require the local rav to be familiar with the individual case, especially if it be a woman seeking a divorce from an unwilling husband or a convert who will always require rabbinic strengthening and follow-up after the conversion. A rav in Jerusalem cannot decide on the sincerity of a convert in New York!

PERMIT ME a personal incident that teaches the very antithesis of the recent decision of the present Chief Rabbinate. Several years after making aliyah to Israel, I performed a marriage between an 80-year-old congregant of mine and a divorcée he had been living with for some 20 years. He, his father and his grandfather had been the proprietors of a non-kosher butcher store, originally in Europe, and then in America. When he immigrated to New York and was searching for a friendly Jewish community, he and his paramour began praying at Lincoln Square Synagogue, and they both became more religiously involved. When I moved to Israel, so did they, he joined a kollel for senior citizens in Jerusalem and I married them under a make-shift huppah in front of the Western Wall, where his kollel prayed every morning. By that time, they both had become complete Shabbat observers, and he had developed a bad case of diabetes, causing her to function more as his nurse (her real profession) than as a life partner.

A popular haredi (ultra-Orthodox) magazine at the time, Yom HaShishi, made the huppah at the Wall their cover story, with the screaming headline; “The Rabbi of Efrat married a kohen to a divorcée” (needless to say ,without bothering to learn any of the details or even calling me to determine the true facts of the case). Rav Mordechai Eliyahu was then the Rishon Lezion chief Sephardi rabbi of Israel, and he and his rabbanit had spent a Shabbat with us in our developing community in Efrat. He had also given a lecture at our yeshiva high school and kollel, the earliest of our Ohr Torah institutions.

Since no one in Efrat in those early days read Yom HaShishi, and since I hadn’t received any negative feedback from anyone, I paid no attention to the article. But to my great surprise and eternal gratitude, the Rishon Lezion Rav himself called my home. He introduced himself on the phone only as Mordechai Eliyahu, said that he hears that some people “are shedding my blood,” and that he would like to hear about the reported incident of the Kohen and divorcée from me the following day in his office. 

At our meeting, after he warmly greeted me, I explained that the “Kohen” was a long-time ba’al tshuva (returnee to Judaism) of mine, and that the only source for his status as a kohen was his father and grandfather, who had both been treif butchers and Shabbat desecrators. And so, according to a written responsum of Rav Moshe Feinstein, given the wandering status of the Jews during the last centuries, such Jews could not be considered reliable witnesses for establishing a kohen status (See Igrot Moshe, Even HaEzer 4:11).

The Rishon Lezion Rav then told me that although most halachic decisors in Israel would not accept this particular decision of Rav Moshe about the kohen status, since I was a qualified and certified Orthodox rav, I had every right to decide the issue in accordance with Rav Moshe. After all, “these and those [Beit Hillel and Beit Shammai, rabbinical authorities in Israel and rabbinical authorities abroad] all speak the words of our living God.”

It is to be hoped that the Chief Rabbinate today would learn this lesson, especially in the two areas that they insist on controlling: conversion and divorces. As we have seen, these are specifically the areas that are most sensitive to having local religious courts making the final decision and assuming the halachic responsibility.