גריי מאטר א, נישואין לא אורתודוקסיים, המעמד ההלכתי של נישואין רפורמייםGray Matter I, Non Orthodox Marriages, The Halachic Status of Reform Marriages

א׳

1Kiddushei Bi'ah and Orthodox Males in the Audience

ב׳

2Having addressed the status of civil marriages in the previous chapter, we now shift our attention to a related issue, the halachic view of Reform weddings.

ג׳

3Contracting a Marriage Through Relations

ד׳

4Rav Moshe Feinstein (Teshuvot Igrot Moshe, Even Ha'ezer 1:76) suggests that even those authorities who deem civil marriage halachically binding (see previous chapter) would agree that a couple married by a Reform rabbi is not halachically married. He bases his argument on the Gemara's discussion of a groom who gave his bride an object worth less than a perutah,¹The money or object given for the purpose of marriage must be worth at least a perutah (an ancient coin); see Kiddushin 2a. after which he consummated the marriage (Ketubot 73b). One opinion believes that the couple is married, for we assume that people realize kiddushin require an object worth a perutah. Since the couple understands that its formal marriage ceremony is not valid, it opts to create kiddushin through sexual relations.

ה׳

5The other opinion asserts that people generally do not know that the ring must be worth at least a perutah, so the couple does not realize that its wedding ceremony did not conform to Halachah. Hence, the man and woman do not intend to create kiddushin with their sexual relations, because they believe that their sexual relations are already sanctioned by their wedding ceremony and do not require anything more.

ו׳

6The Shulchan Aruch (Even Ha'ezer 31:9) rules that the couple is halachically married when the ring used in the wedding ceremony was worth less than a perutah. The Rama adds that the couple is married only if it realizes that the wedding ceremony lacked halachic validity and that kiddushin must thus be created by sexual relations. However, if it believes that the marriage ceremony was valid, the couple is not married even after engaging in sexual relations.

ז׳

7Rav Moshe and the Maharsham (Teshuvot 2:101) write that those who ask a Reform rabbi to marry them erroneously believe that the Reform ceremony constitutes kiddushin, so they do not intend to create kiddushin later through sexual relations. Accordingly, the only way for a Reform wedding to take effect would be if the Reform ceremony itself were halachically valid. We will now outline the issues surrounding a Reform wedding ceremony.

ח׳

8Male Orthodox Jews in the Audience

ט׳

9Jewish law requires the presence of two male qualified witnesses in order for a wedding ceremony to have halachic validity. The presence of witnesses for kiddushin and gittin is required to render the action halachically significant, and not merely to provide evidence after the fact. Consequently, even a videocassette of the wedding cannot substitute for the presence of qualified witnesses at the ceremony.

י׳

10The Shulchan Aruch (Choshen Mishpat, 33-35) delineates who the Halachah considers a qualified witness. Anyone who is known to have violated a monetary crime, regardless of its punishment, or a negative Torah prohibition punishable by malkot (lashes) or death, such as desecrating Shabbat, is disqualified on a Torah level. Thus, one who is known to cheat in business, drive on Shabbat, or eat non-kosher food cannot serve as a witness for kiddushin. In addition, any first or second-degree relative of the bride, groom, or other witness is invalid.²The Rama (C.M. 33:2) claims that the Rambam considers maternal relatives invalid witnesses only on a rabbinical level. Accordingly, observant maternal relatives who saw the wedding ceremony take place could make the wedding valid on a biblical level. On the other hand, the Shach (C.M. 33:7) offers a different interpretation of the Rambam's words and argues that even the Rambam invalidates maternal relatives on a biblical level.

י״א

11Accordingly, Rav Moshe writes:

י״ב

12It appears correct to me that a marriage ceremony conducted by a Reform rabbi has no halachic validity if a thorough investigation demonstrates that two qualified witnesses did not see the groom hand the bride the ring and recite "harei at mekudashet li" (the wedding formula, "Behold you are married to me...").

י״ג

13The Chatam Sofer's Ruling

י״ד

14The Chatam Sofer (Teshuvot 100, cited by Pitchei Teshuvah, E.H. 42:11) poses a potentially serious challenge to Rav Moshe's ruling. In the Chatam Sofer's case, a rabbi performed a wedding, and two men were designated as witnesses of the kiddushin. A few weeks later, the rabbi discovered that one of the witnesses was a relative of the bride.

ט״ו

15The Chatam Sofer rules that the marriage was valid despite the fact that one of the designated witnesses was disqualified. He explains that anyone present at the wedding could potentially serve as a witness (assuming he was not invalid for any other reason), and even people who did not see the delivery of the ring to the bride still knew that the transfer occurred. This knowledge fits the halachic category of anan sahadei, knowledge that is equivalent to seeing the transfer itself (see Shevuot 33b-34a). This concept resembles last chapter's rule of hein hein eidei yichud hein hein eidei bi'ah.

ט״ז

16The Chatam Sofer's ruling could limit Rav Moshe's leniency to cases when no valid witnesses attended the wedding ceremony. However, Rav Moshe asserts that the Chatam Sofer's ruling does not apply to a wedding conducted by a Reform rabbi, as it requires the officiating rabbi to be both well versed in Halachah and punctilious about all halachic details related to marriage. Only in such a situation can those at the wedding presume that a halachically valid ceremony took place. However, if the men in the audience are not certain that the kiddushin were conducted strictly in accordance with Halachah, they cannot serve as witnesses without watching the ring's delivery with their own eyes.³Dayan Y.Y. Weisz (Minchat Yitzchak 2:66) does not appear to agree with Rav Moshe's claim. Dayan Weisz believes that even in a situation, such as a Reform wedding, where the audience has its doubts as to the validity of the marriage, everyone in the audience knows that a potentially valid ceremony took place. Accordingly, if there are Orthodox non-relatives in the audience during the wedding ceremony, there is a safeik (doubt) as to the marriage's validity. Rav Shlomo Zalman Auerbach (Minchat Shlomo 3:100) rejects this approach. If there are no valid witnesses in the audience, even Dayan Weisz accepts Rav Moshe's lenient ruling (at least regarding mamzeirut).

י״ז

17Conclusion: Criticism and Acceptance of Rav Moshe

י״ח

18Despite Rav Moshe's claim that even Rav Yosef Eliyahu Henkin, who believes that civil marriages are binding, will agree that Reform marriages are not binding, Rav Henkin rules otherwise (Teshuvot Ibra 2:76). He vehemently attacks Rav Moshe's ruling and depicts its implementation as "a sin." Although some great rabbis dispute Rav Moshe's lenient ruling, many agree with it. As we have noted, the Maharsham articulates a similar view to that of Rav Moshe. In addition, Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 8:37) accepts Rav Moshe's analysis and ruling. He seeks to demonstrate that many great authorities disagree with the aforementioned ruling of the Chatam Sofer. Moreover, he agrees with Rav Moshe that the Chatam Sofer's ruling does not apply to a wedding ceremony conducted by a Reform rabbi. It should be emphasized, though, that even Rav Moshe urged that all efforts be made to administer a get on behalf of a divorced couple even if it was married in a Reform ceremony.

י״ט

19Deviations in the Ceremony

כ׳

20Rav Moshe Feinstein wrote several responsa about the halachic status of Reform wedding ceremonies, including a 1970 responsum where he examines several of their problematic parts (Teshuvot Igrot Moshe, Even Ha'ezer 3:25). In addition to the lack of valid witnesses, which we have addressed in the previous chapter, Rav Moshe argues that Reform marriages also lack halachic validity for other reasons:

כ״א

21They do not perform an act of kiddushin. Rather he merely responds "yes" to the rabbi's question, "Do you wish to take this woman as your wife?"... These are not words of kiddushin [such as the required phrase, "Behold you are betrothed to me with this ring"]; rather, these words express consent to joining in marriage. [The man and woman] subsequently exchange rings as an expression of their marriage, which they believe to have been contracted already by answering "yes."

כ״ב

22The Double Ring Ceremony

כ״ג

23In the above responsum, Rav Moshe suggests that double ring ceremonies raise concern about how the couple understood the wedding procedures:

כ״ד

24Even though he gives her a ring, she also gives him a ring, which demonstrates that his giving her a ring was merely a present in honor of their marriage, and there is no act of kiddushin.

כ״ה

25Dayan Aryeh Grossnass (Teshuvot Lev Aryeh 31) presents a similar approach. It should be noted that there are many variations of the double ring ceremony, and they might have different halachic standings.

כ״ו

26Disagreement with Rav Feinstein

כ״ז

27Many great rabbis disagree with this assertion of Rav Moshe. Both Rav Zalman Nechemia Goldberg and Rav Hershel Schachter expressed their opinions to this author that once the groom gives the bride a ring, they are married. Whatever happens after the delivery of the ring is irrelevant in their view.¹Nonetheless, both these authorities disapprove of conducting a double ring ceremony, its effectiveness notwithstanding (see Teshuvot Igrot Moshe, E.H. 3:18).

כ״ח

28The Gemara (Nedarim 87a) seems to support Rav Goldberg and Rav Schachter's view. The Gemara states that one may retract even a formal statement (such as testimony in beit din) as long as the retraction occurs immediately after the statement (toch kedei dibur). However, this rule does not apply to four areas of Halachah - cursing our Creator (God forbid), idolatry, kiddushin, and gittin. Accordingly, once kiddushin have taken effect, one cannot retract them (except with a get or death). Thus, once the groom gives the bride a ring, the bride's giving the groom a second ring should be irrelevant.

כ״ט

29Defense of Rav Feinstein's Ruling

ל׳

30Nonetheless, one may suggest a defense of Rav Moshe's ruling. Rav Chaim Soloveitchik (commentary to Rambam's Hilchot Chalitzah 4:16) explains that a couple does not become married merely by the ritual performance of kiddushin. Rather, da'at, intention, is necessary to create the marriage. Accordingly, the couple must have da'at that giving the ring creates the kiddushin; without intention, the kiddushin cannot take effect. Since the statement of vows and the double ring ceremony confuse the couple's da'at, the marriage is not effective.

ל״א

31Moreover, in videos of Reform weddings that this author has seen, the rabbi typically declares at the conclusion of the chuppah, "I now pronounce you man and wife in the eyes of man and in the eyes of God." Women who participated in these ceremonies have told this author that they thought they were married according to Jewish tradition when the rabbis made this declaration.

ל״ב

32The Rama (E.H. 42:1) writes, "Regarding kiddushin we do not use assumptions or [circumstantial] proofs to establish that a [man or] woman did not intend to be married." It would thus seem that we cannot assume that the couple did not intend to be married at the right time in the ceremony. Nevertheless, there is still room to invalidate Reform weddings. This is because the basis for the Rama's ruling (as explained by Rav Yechezkel Landau, Teshuvot Noda Biyhudah 1:59, cited by Pitchei Teshuvah, E.H. 42:3) is that unarticulated thoughts have no halachic significance (devarim sheb'leiv einam devarim). However, in the case of the Reform double ring ceremony, the circumstances clearly indicate a lack of da'at. The groom and bride demonstrate with their actions that they do not want the groom's delivery of the ring to effect kiddushin. In fact, Tosafot (Kiddushin 49b s.v. Devarim) write that when the individual's intentions are obvious, they do indeed have halachic standing. The Chazon Ish (E.H. 52:3) also writes that even the Rama would invalidate a marriage if it is blatantly obvious that the couple did not intend to marry halachically (see Techumin 18:92-99).

ל״ג

33Indeed, it is common in observant communities for a man to present an engagement ring to his fiancée, yet we do not believe that the couple is thereby married (see Rama, E.H. 45:2). This is because they clearly do not intend to create kiddushin with the engagement ring.

ל״ד

34Limitations of Rav Feinstein's Ruling

ל״ה

35Rav Moshe's ruling probably does not apply to every case of a double ring ceremony. This author saw on video a traditional Conservative rabbi conduct a double ring ceremony. The rabbi told the groom to give the ring as an expression of marriage and subsequently told the bride to give him a ring as a pledge of her love. He seemed to be attempting to distinguish between the groom's delivery of the ring (which creates kiddushin) and the bride's handing the groom a ring.

ל״ו

36Although Rav Moshe strongly disapproves of such a ceremony (Teshuvot Igrot Moshe, E.H. 3:18), he probably would believe that this form of a double ring ceremony does not invalidate the wedding. In this case, no concrete evidence exists that the couple does not wish to create kiddushin with the delivery of the ring from the groom to the bride.

ל״ז

37Ownership of the Ring

ל״ח

38Rav Moshe (Teshuvot Igrot Moshe, E.H. 1:76) further notes that the groom often does not own the ring at Reform weddings.²It is vitally important that the groom own the ring to be used for kiddushin; see Shulchan Aruch E.H. 28. In fact, it is common practice for the officiating rabbi to ask the groom at the time of kiddushin if the ring belongs to him; see Beit Shmuel 28:49. If the ring belonged to the bride (or anyone else) before the ceremony, the kiddushin are not valid.

ל״ט

39Rav Zalman Nechemia Goldberg expressed his disagreement Rav Moshe to this author. He referred to a ruling of the Rosh (Kiddushin 1:20, codified in Shulchan Aruch, E.H. 28:19) that if one borrows a ring and informs the lender that he wishes to use it for kiddushin, the kiddushin are valid. Although the ring was borrowed, the lender intends to give the ring as a present (and not merely a loan) to the groom so that the kiddushin can take effect. Similarly, the groom intends to acquire the ring in order to properly implement the kiddushin.³See Teshuvot Beit Yitzchak (1:104) for an application of this ruling.

מ׳

40However, one may respond that the Rosh's ruling applies only to those who know that the wedding ring must belong to the groom. Rav Moshe states this explicitly in Teshuvot Igrot Moshe (E.H. 1:90).

מ״א

41In fact, the Mishnah Berurah (649:15) seems to support Rav Moshe's contention. He rules that one who uses a borrowed lulav does not fulfill the mitzvah on the first day of Sukkot (the first two days in the Diaspora) unless the lender knows that the borrower must halachically acquire it. Otherwise, we assume that the lender gave the lulav as a loan and not as a present.

מ״ב

42Conclusion

מ״ג

43We must try our hardest to assure that divorcing couples who were married in a Reform Jewish ceremony receive a valid get. Only when a spouse refuses to participate in a get ceremony, or when possible mamzeirut exists, do some rabbinical courts consider relying on Rav Moshe Feinstein and the authorities who agree with him to invalidate a Reform wedding ceremony.

מ״ד

44 The Status of Non-Orthodox Jews Today

מ״ה

45In most non-Orthodox wedding ceremonies, the designated witnesses are themselves non-Orthodox Jews. Determining their halachic status is thus critical for ascertaining the status of the weddings that they witness.

מ״ו

46The Status of Tinok Shenishbah

מ״ז

47The Talmud (Shabbat 68b) discusses the laws of a tinok shenishbah, one who is unaware of the laws of Shabbat because he was abducted as a baby and raised among gentiles. The Gemara rules that if such an individual desecrates Shabbat, he is nonetheless regarded as an inadvertent sinner. Accordingly, we do not view one who was raised among non-Jews as a deliberate sinner, for he never realizes the problems with his actions.

מ״ח

48Does the same apply to a Jew who is raised among non-observant Jews? Logically, he should be treated the same way, for he also does not understand what mitzvot are or why he should keep them. In fact, the Rambam (Hilchot Mamrim 3:1-3), when he codifies the harsh actions that the Halachah prescribes for a known apikores (someone who rejects one of the pillars of traditional Jewish thought), limits their application as follows:

מ״ט

49This rule applies only to one who has consciously rejected belief in the Oral Law on his own thoughts and reasoning, such as Tzadok, Baytus (both of whom started sects that rejected parts of our Oral Law), or their followers. However, children and grandchildren of those who go astray... who were born to Karaites and were raised with these tenets, such a person is like a tinok shenishbah... He is like one who was coerced [to violate mitzvot]. Although he heard as an adult that he is Jewish and saw practicing traditional Jews, he is still like one who is coerced, since he was raised on mistaken beliefs. It is therefore appropriate to try to influence them to return to traditional Jewish observance and beliefs and draw them with pleasant engagement until they return to a Torah life.¹For a discussion of the Rambam's attitude towards Karaites, see Professor Gerald Blidstein's essay in Techumin (8:501-510).

נ׳

50Applications to Modern Jewry

נ״א

51In modern times, we have seen a lamentable rise in the number of non-observant Jews, many of whom are raised this way from infancy. Is such a Jew considered a tinok shenishbah? In the early nineteenth century, Rav Yaakov Etlinger (Teshuvot Binyan Tzion Hachadashot 23) wrote the following about the Jews of his time:

נ״ב

52It is difficult for me to issue a ruling regarding contemporary non-observant Jews. We see that the majority of the Jewish community is no longer observant and Shabbat desecration has become the norm. It is possible that these people should be considered as ones who think what they are doing is permissible, and as such they are karov lemeizid, falling short of being considered deliberate transgressors (see Makkot 7b). In addition, many of them recite kiddush and later engage in Shabbat desecration. Thus, they do not deny that God is the Creator. The children of these people, who are ignorant of the laws of Shabbat and are merely emulating their parents, should be regarded as tinokot shenishbu.

נ״ג

53Several decades later, Rav David Tzvi Hoffman echoed Rav Etlinger's view of secular Jews (Melameid Leho'il 1:29):

נ״ד

54The Binyan Tzion [wrote] that Shabbat desecrators in our time are somewhat like tinokot shenishbu, because most Jews in our land unfortunately are Shabbat desecrators, and it is not their intention to deny our basic beliefs.

נ״ה

55Rav Kook

נ״ו

56Rav Avraham Yitzchak Kook (Igrot Hareiyah 1:4) adopts a similar approach regarding non-observant Jews of the early twentieth century (translated by Rav Dr. Norman Lamm in Jewish Tradition and the Non-Traditional Jew):

נ״ז

57The Tosafists remark on Sanhedrin 26b (s.v. Hechashud) that someone suspected of performing an act of sexual immorality because he was seized by passion is not disqualified as a witness, because "his passion coerced him"….

נ״ח

58Similarly, we may say that the "[secular] spirit of the times" acts as an evil intellectual temptress who seduces the young men of the age with her charm and her sorcery. They are truly "coerced," and God forbid that we should judge them as willful heretics.²For a thorough discussion of the circumstances when one's desires may be deemed a coercive force, see Prof. Nachum Rackover's essay in Techumin (18:197-209).

נ״ט

59Chazon Ish

ס׳

60The Chazon Ish (Yoreh Deah 2:16),³See Rav Mayer Twersky's discussion of these comments of the Chazon Ish in Tradition (30:4:92). in his famous remarks regarding moridin velo ma'alin (the Halachah that mandates throwing certain grievous sinners and heretics into deep pits and leaving them to die), appears to concur with Rav Kook:

ס״א

61It would appear that this Halachah is only operative when Divine providence is clearly evident, as it was when miracles were commonplace and the bat kol (heavenly voice) was functional, and the righteous individuals of the generation were under special Divine providence discernable to all. In those times, heretics perversely provoked themselves to the pursuit of pleasure and anarchy and in those times excising evil people constituted protection of the world because all knew that inciting the people of the generation would bring calamity to the world; it would bring pestilence and war and famine. But now, in an era during which God's providence is concealed and the masses are bereft of faith, orchestrating the death of sinners does not repair the breach in the wall of religion, but enlarges it because the masses will view such actions as destructive and violent, God forbid, and since our sole purpose is to be constructive, this Halachah [of moridin] is not operative at a time when it does not yield constructive results, and it is incumbent upon us to attract the masses to Torah through love and to position them so that they can experience the radiance of Torah to the best of our ability (translated by Rav Mayer Twersky, Tradition 30:4:92).

ס״ב

62He adds (Yoreh Deah 2:28):

ס״ג

63The Hagahot Maimoniyot wrote that one may not hate the heretic until he has disregarded rebuke. At the end of the work Ahavat Chessed, the author cites Rav Yaakov Molin to the effect that we must love the sinner. He also quotes the Maharam of Lublin to show that we must consider the sinners as those who have not yet been rebuked, for we no longer know how to rebuke properly (see Arachin 16b), and hence one must treat them as transgressors under duress. As a result, we cannot exempt these sinners from [standard Jewish] obligations, such as yibum and other halachot (translation by Rav Dr. Norman Lamm).

ס״ד

64It is important to note that both Rav Kook and the Chazon Ish go even further than Rav Etlinger and Rav Hoffman. The latter speak of children whose parents gave them little Jewish education, so these children grew up with neither knowledge nor faith. Rav Kook and the Chazon Ish, however, describe mitigating factors for even those who received some Orthodox education but nonetheless went astray. These people are victims of the "spirit of the times" and the lack of noticeable Divine providence. On the other hand, the context of the Chazon Ish's remarks must also be noted. In the first paragraph cited, he is writing about the life and death matter of moridin velo ma'alin. In the second paragraph he concludes by applying his concept to "yibum and other halachot," but it is unclear how broad a range of halachot this statement covers.⁴Regarding the status of a tinok shenishbah who touches wine, the Binyan Tzion permitted the wine in case of need, but he encouraged refraining from drinking it if possible. For a summary of this issue, see Nishmat Avraham (Yoreh Deah 124:1).

ס״ה

65Conclusion

ס״ו

66It is appears from our citations (Shabbat 68b, Rambam, Binyan Tzion, Melameid Leho'il, Rav Kook, and Chazon Ish) that many halachic authorities view most non-Orthodox Jews today as tinokot shenishbu.⁵For a discussion of halachic attitudes towards non-Orthodox Jews, see Jewish Tradition and the Nontraditional Jew, edited by Rav J. J. Schachter. See Teshuvot Minchat Elazar (1:74) for a dissenting view.⁶Also see Teshuvot Igrot Moshe (E.H. 4:59).

ס״ז

67Is a Tinok Shenishbah Acceptable as a Witness?

ס״ח

68In the previous section, we established that most authorities consider non-observant Jews today to be tinokot shenishbu. We will now discuss the ramification of this for non-Orthodox marriages, the acceptability of a tinok shenishbah as a witness. The rulings of Rav Moshe Feinstein, Rav Waldenberg, Maharsham, Rav Aryeh Grossnass, Rav Tzvi Pesach Frank, Rav Yitzchak Herzog, and Rav Chaim David Halevi to invalidate Reform marriages all assume that the non-Orthodox Jews present at the ceremony cannot serve as witnesses.¹Rav Yosef Shalom Eliashiv appears to agree with these authorities, at least in case of potential mamzeirut. Rav Hershel Solnica reports that Rav Eliashiv ruled that a woman whose mother had remarried without the benefit of a get was not a mamzeret since two observant Jews were not present at the mother's first marriage. Others, however, question that assumption.

ס״ט

69This issue has tremendous ramifications regarding the unity and well-being of the Jewish people. A halachic ruling to accept a tinok shenishbah as a witness essentially means that many marriages conducted by non-Orthodox rabbis have halachic validity, resulting in a massive mamzeirut problem. In 1996, Dr. Yitzchak Skolnik, director of the Kayama Organization, reported that statistics indicated that merely fifteen percent of divorced Jewish couples performed a get. As we know, the children born to a woman who has remarried without a get are mamzeirim if the woman's first marriage was halachically valid.

ע׳

70Sanhedrin 26b - The Gravediggers' Case

ע״א

71In general, anyone designated by the Halachah as a rasha (sinner) cannot serve as a witness (Shemot 23:1). Thus, anyone who commits a sin punishable by malkot (lashes) cannot serve as a witness (as the Torah refers to one who is punished by malkot as a rasha, in Devarim 25:2). Similarly, deliberately violating a Torah law that is punishable by kareit or death disqualifies one as a witness. In addition, one who engages in theft or other monetary offenses and one who does not believe in the thirteen basic beliefs of Judaism cannot serve as witnesses. Nonetheless, the Gemara (Sanhedrin 26b) recounts:

ע״ב

72A certain group of gravediggers used to bury the dead on the first day of Shavuot [in violation of Halachah]. Rav Papa excommunicated them and disqualified them from serving as witnesses. Rav Huna, the son of Rav Yehoshua, declared that these gravediggers were valid witnesses [despite their violating Torah law]. Rav Papa challenged Rav Yehoshua, "But aren't they resha'im [sinners who are invalid witnesses]?" He responded that they think they are performing a mitzvah. He retorted, "But did we not excommunicate them!" Rav Yehoshua answered that the gravediggers think they were excommunicated to serve as atonement for their actions.

ע״ג

73Apparently, a sinner is deemed a rasha only when he sins knowingly. On the other hand, if the individual does not realize that he is sinning, as was the situation with the gravediggers, he may still be accepted as a witness. In fact, the Shulchan Aruch (Choshen Mishpat 34:3) codifies the gravediggers' case as normative. The Rama thereupon quotes from the Rivash (Teshuvot 311) that "the same exception applies to anyone who appears to have sinned due to a mistake."

ע״ד

74Later Applications of the Gravediggers' Case

ע״ה

75Rav Akiva Eiger (Teshuvot 96, cited by Pitchei Teshuvah, E.H. 42:18) was asked about the validity of a wedding where the witnesses shaved with razors. At first glance, the wedding would appear not to be valid, as shaving with a razor is punishable by malkot and should disqualify the witnesses.²Shaving with a razor violates a biblical commandment (see Vayikra 19:27). Regarding electric shavers, there is much greater room for leniency (see Rav Shabtai Rappaport's essay in Techumin (13:200-208) and Aharon Frazer's article, available at http://www.yucs.org/~frazers/imshefer.html). Rav Eiger, however, forbade the woman to remarry without receiving a get, since "so many people violate the rule forbidding shaving with a razor that the parties in question do not think they are truly violating a serious prohibition."³Due to the current availability of electric shavers, Rav Eiger's ruling presumably no longer applies, as otherwise observant men rarely shave with razors.

ע״ו

76Furthermore, Rav Chaim Ozer Grodzinski (Teshuvot Achiezer 3:25) ruled that witnesses who signed a get in South Africa were acceptable witnesses, despite the fact that they kept their shops open on Shabbat (although they did not do melachah). Rav Chaim Ozer explained that the people in South Africa were accustomed to keeping their stores open on Shabbat, so they did not believe that they were violating Shabbat.⁴For an explanation of the prohibition involved in opening a store on Shabbat, see Rav Chaim Ozer's responsum.

ע״ז

77Non-Observant Jews - Rav AharonWalkin vs. Rav Moshe Feinstein

ע״ח

78Rav Akiva Eiger and Rav Chaim Ozer discuss the status of individuals who, while being lax in specific areas, are generally committed to observance of Halachah. What if someone observes virtually no mitzvot? We are speaking not of those people who have rejected the halachic belief system and lifestyle. Rather, we are speaking of people raised in non-observant homes who mistakenly believe that one can be a "good Jew" without observing Halachah, and those who keep Halachah are merely "fundamentalists" or are going beyond the call of duty.

ע״ט

79Rav Aharon Walkin (Teshuvot Zekan Aharon 1:74) rules that one may accept testimony from a non-observant Jew. He addresses a situation in which a woman in an Eastern European community received a letter from members of the Argentine Jewish community reporting the death of her husband. At that time, hardly any members of the Argentine Jewish community observed Halachah. Rav Walkin nonetheless accepted their testimony, asserting that one only ceases to be a valid witness if he realizes that his sins will invalidate him. If ignorant Jews do not realize that desecrating Shabbat will deprive them of their ability to testify, they remain acceptable witnesses. Rav Walkin cites a similar comment of the Sema (34:57) as a precedent for his ruling.⁵Rav Walkin does not claim that permission to testify is inherent within the status of a tinok shenishbah. Rather, he rules that this permission results from ignorance of how one invalidates himself as a witness. In practice, though, there is almost no difference, for those who are raised without knowledge of mitzvot generally do not realize that failing to observe mitzvot invalidates one's testimony. Rav Herzog (Techukah Leyisrael Al Pi Hatorah 3:232-233,238-239) raises this possibility as well.⁶It is important to note that in a case of potential mamzeriut, Rav Herzog, along with Rav Tzvi Pesach Frank, ruled that a Reform marriage was invalid due to the absence of valid witnesses (see Teshuvot Lev Aryeh 31, addendum to the responsum). It thus appears that Rav Herzog's comments in Techukah Leyisrael Al Pi Hatorah were not meant as an absolute ruling to permit the testimony of non-observant Jews, but merely as a theoretical suggestion. Rav Ovadia Yosef (Yabia Omer vol. 8, E.H. 18) also accepts the testimony of a tinok shenishbah to prove that a woman is a widow. He indicates, however, that he is only being lenient because Chazal were very lenient about accepting testimony to let a widow remarry.

פ׳

80Rav Moshe Feinstein (Teshuvot Igrot Moshe Even Ha'ezer 1:82, 4:32:7, and 4:60) argues that even a tinok shenishbah is disqualified from serving as a witness. Indeed, it is not difficult to distinguish between a non-observant Jew, who does not view himself as bound by Halachah, and the gravediggers (and their later parallels), who were committed to the halachic system but mistakenly violated some of its rules (see Teshuvot Minchat Yitzchak 2:66). Moreover, it seems exceedingly clear from the Shulchan Aruch (Choshen Mishpat 34:17) that unless one is committed to keeping mitzvot, he cannot serve as a witness. For further explanation of why even a tinok shenishbah is unfit to serve as a witness, see the comments of Rav Avigdor Neventzall (quoted in Techumin 13:420), and Rav Avraham Sherman (Techumin 18:250).

פ״א

81These authorities would most likely advise treating a tinok shenishbah with respect and love, as we cited last chapter from Rav Kook and the Chazon Ish. Nevertheless, until he returns to a life of halachic observance, he cannot serve as a witness.

פ״ב

82The Karaites' Status

פ״ג

83Rav Zalman Nechemia Goldberg suggested to this author what he considers a clear proof that a tinok shenishbah can serve as a witness. The Rama (E.H. 4:37) writes that we may not marry Karaites or their descendants, as they are possibly (safeik) mamzeirim.⁷See Kiddushin (74a-76a) for a similar ban on marrying Samaritans. The concern is that the Karaites' marriages are valid, while their divorces are not. Rav Zalman Nechemia reasoned that if a tinok shenishbah is not a valid witness, then why would the Rama be concerned about the validity of the Karaites' marriages? As we have previously cited, the Rambam explicitly states that the second generation of Karaites is treated like tinokot shenishbu. It would thus appear that the Rama considers a tinok shenishbah to be a valid witness.⁸The halachic literature concerning the acceptability of Samaritans as witnesses might support Rav Zalman Nechemia's assertion. See Gittin 10, Tosafot (Gittin 10b s.v. Iy Lav), Rambam (Hilchot Avadim 6:6), and Teshuvot Machaneh Chaim (1:34) cited by the Otzar Mefarshei Hatalmud (Gittin 1:492).

פ״ד

84Rav Moshe Feinstein (Teshuvot Igrot Moshe, E.H. 4:59) distinguishes between Karaites and contemporary non-observant Jews. Rav Moshe's explanation of why the Karaites might be acceptable as witnesses is somewhat similar to the Chazon Ish's (Yoreh Deah 2:18) explanation of why Samaritans might be acceptable as witnesses.

פ״ה

85This author replied to Rav Goldberg that the Radbaz (Teshuvot 1:73, 2:796, and 4:219) rules that the Karaites are not mamzeirim, because their kiddushin are invalid. The Radbaz clearly writes that Karaites are unfit to serve as witnesses. Even if we were to reject the Radbaz and accept the Rama's ruling, we may distinguish between it and Rav Moshe's ruling. The Rama addresses an entire community, whereas Rav Moshe addresses individual cases. In the latter situation, one is usually able to investigate thoroughly if two valid witnesses saw the delivery of the ring from the groom to the bride. In the former case, the Rama addresses the status of all Karaites, who had existed for hundreds of years by his time. Regarding the Karaites, it is possible that valid witnesses saw the delivery of the ring at some of their weddings, thereby rendering those ceremonies halachically valid (as occurs at a number of non-Orthodox weddings).⁹The historical background surrounding the Rama's source is unclear. The ban on marrying Karaites first appears in a responsum of questionable authorship (cited by the Mabit, Teshuvot 1:38). This responsum states that the Karaites' marriages are halachically binding "either through kesef [giving a ring, or other valued object] or bi'ah [marital relations]." The Radbaz argues that the responsum makes several problematic assumptions, and he therefore permits marrying Karaites. In his attempt to understand the responsum, the Radbaz argues that the only possible way for Karaites to have valid marriages is if Rabbanites (the medieval forerunners of Orthodox Jews) attended their wedding. For a treatment of the history and halachic status of Karaite wedding ceremonies, see Michael Corinaldi's Hama'amad Ha'ishi Shel Hakara'im (pp. 34-142). Over the years, if women in such marriages remarried without gittin, their children from the new marriages were mamzeirim. Over the centuries, this likely occurred repeatedly, creating a situation of collective safeik mamzeirut for the Karaite community. However, the Rama might agree with Rav Moshe's approach regarding a specific wedding, if a thorough investigation reveals that no valid witnesses saw the groom give the bride a ring.

פ״ו

86An Actual Case

פ״ז

87When this author spent a month observing the Jerusalem Beit Din in Tammuz 5753, an interesting case came before it. A young couple sought a marriage license,¹⁰Matters of personal status are under the exclusive control of the Orthodox Rabbinate in Israel. but the woman's mother had been previously married and never received a get. The woman presented a document from a prominent Rav (Rav Reuven Feinstein, Rav Moshe's son) stating that she was not a mamzeret, because her mother's marriage was a Reform ceremony that no valid witnesses attended.

פ״ח

88Rav Zalman Nechemia Goldberg was uncertain how to rule, as he believed that a tinok shenishbah is an acceptable witness. Finally, he consulted his eminent father-in-law, Rav Shlomo Zalman Auerbach, who ruled that the beit din should authorize the woman to receive a marriage license in light of Rav Feinstein's ruling.¹¹It is unclear to this author if Rav Shlomo Zalman ruled leniently because he agreed with Rav Moshe's leniency (at least in case of mamzeirut), or if he disagreed with Rav Moshe, but he did not wish to impose his own stringent view on a woman who was already permitted to remarry by an eminent halachic authority.

פ״ט

89Conclusion

צ׳

90One should make great efforts to ensure that a divorcing couple receives a valid get even if it did not marry in an Orthodox ceremony. In case of igun, where a man (or woman) is not cooperating in giving a get, an eminent rabbi should be consulted for ruling in the matter.

צ״א

91Postscript

צ״ב

92The status of Conservative marriages is quite a complex topic. See this author's Hebrew essay in Techumin (18:84-91). More information regarding this issue can be found in Teshuvot Igrot Moshe (E.H. 1:135, 4:13, 4:46, and 4:78). The reason for the complexity of this issue is the extremely wide range of practices and beliefs among Conservative rabbis and lay individuals.