Agunah Again

by: Rabbi Jeremy Rosen

It has been a while since I last wrote about one of the subjects that really concerns and troubles me, the Agunah. An Agunah (literally, the tied/encircled woman, see Ruth 1.13) is a woman whose husband refuses to give her a divorce, or is unable to (perhaps he has been killed or kidnapped but more usually he’s just being a bastard), with the result that she cannot remarry. Another example is the Yevama, the childless widow who cannot remarry if her husband’s brother, who was Biblically required to marry her to keep the family line alive, refuses to release her with the ceremony of Halitza.

The problem is that divorce or release has to be agreed to by both parties, voluntarily. This is perfectly reasonable. But in practice it is the man who grants the release and as a rule, though not always, it is the man who refuses to give a divorce and holds out in the expectation of cashing in. I accept the argument that historically many laws in their original form that appear to put the female at a disadvantage were designed to protect her from the public glare, cross-examination and humiliation (something nowadays they are too often subjected to).

But the social status of a male gave him an unfair advantage. He could take a second wife if his first obstructed. And when polygamy was outlawed Jews were living under non-Jewish jurisdictions that were biased against women, so the power of Jewish courts to put pressure on husbands was lost. The result was that a husband could blackmail a woman by refusing to divorce her, while the female usually found it much harder to get the courts or the rabbis to press her case. Often the rabbis would provide a way for the man remarry, but this never applied to the woman.

Actually Jewish Law allowed for compulsion to be used to get the husband to change his mind, even to the point of physical assault. But in thirteenth century Europe, under pressure from Christianity in my opinion, the Rabbeynu Tam and subsequent rabbis practically forbade compulsion. Still, Jewish Law allowed for the annulment of marriages where circumstance warranted it. This was the most common medieval device for dealing with these problems when husbands disappeared pretty regularly, what with pogroms, forced conversions and bandits. So the rabbis then were more accommodating.

Sadly, over time attitudes began to harden. As women began to assert their rights, the predictable response of all religious authorities was and is to resist change. And of course the pressure of the Enlightenment simply drove Orthodoxy further into its protective mindset and against any accommodation with modern conditions. I personally believe that were the males to be the primary losers in this matter it would have been dealt with within the framework of halacha a long time ago.

In the face of our own halachic paralysis, recently attempts have been made to get civil courts to impose fines on recalcitrant husbands until they grant divorces, and prenuptials have been created that grant authority to a Beth Din to resolve the crisis if a marriage breaks down. Sadly, many Orthodox authorities still refuse to accept even these devices. The only explanation I have is that they are fearful of being accused of leniency in an era where leniency is almost akin to apostasy! In general I have no gripe with using non-Jewish law or other devices not originally part of our legal system to resolve a problem we have created. But I believe in the long run it proves counterproductive because it lets us off the hook.
I do care very much that our religion can consign women who cannot remarry to limbo while perfectly legal halachic devices for freeing them are not used. I find all of this a stain on halachic Judaism or, to be fair, on the rabbis who apply it. It represents a far greater challenge to my faith than any other single abuse or problem I know of. I have personal knowledge of too many cases where despicable or corrupt husbands have blackmailed their wives’ families for vast sums by refusing to release women they clearly no longer had feelings for. Over the years, a few brave rabbis have tried to change opinions or, as in the case of Rabbi Emanuel Rackman, actually do something about it. But in the end they have been rejected and humiliated and the status quo has remained.

Apart from some notable exceptions, only in Israel have serious attempts been made to deal with this issue. That is why I was so disappointed to see that a major conference involving rabbis and experts from around the world, convened by the Chief Rabbinate of Israel working together with women lawyers and campaigners, was cancelled this month by order of the Charedi authorities. Even more disappointing was the craven capitulation of Chief Rabbi Amar who excused himself by claiming that he would achieve more by agreeing to the cancellation. So far there is no “more”. There is silence.
Why did the oracular Rav Eliashiv (or his minders, who often frame questions to get desired answers) object? Was it because women experts were scheduled to speak or simply because the subject is taboo? We will never know given the current mood of obfuscation in matters rabbinic.

I am worried for another reason. I had hitherto believed that Israeli Jewry would come to the rescue of thinking, creative Torah Judaism. In Israel, unlike the Diaspora, there is the official state-funded and more inclusive Rabbinate. However regressive, it is still independent of the Charedi world, who so despise the “paid lackeys of the Zionist State” that, until recently, they left it alone. That is why under the Rabbinate women can plead in rabbinic courts, there are women experts in religious law, and indeed women trained to respond to halachic questions. Sure, there are still too many cases of male chauvinism, but at least in the Rabbinate one could see change, however modest and slow, and could hear alternative creative and tolerant voices. One never had such expectations of the Ashkenazi Charedi Rabbinate, for historical, political, and ideological reasons. But now it seems that, as in Britain and America, the Charedi rabbis are exercising pressure and the moderates are capitulating.

How did it happen? There are two theories I have heard. One is that as the Charedi world has so many well qualified graduates who need jobs that they have been infiltrating the upper echelons of the religious courts. If this is so then, like the United Synagogue in Britain, in a short time it will totally change the character, the values and the attitudes of the Israeli rabbinate in general. In the UK the battle has been lost. Moderate rabbinical leadership has given up the struggle (not irrevocably, I hope, because I am an optimist and a great believer in cycles and changes of mood).

The other explanation is that the moderate creative voices in the Rabbinate are almost all associated with right-wing politics, the religious kibbutzim and the Settler movement. They have been so involved in nationalist politics in recent years they have taken their eyes off the religious and spiritual ball. If this is so, then it is not too late. Perhaps a pathetic capitulation like this will give them a jolt and they will fight back and ensure that the glory is returned to Jewish Law and religious values and the Israeli official rabbinate might yet recover and save the day.

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