National Scholar Updates

One of the great rabbinic sages of the 20th century was Rabbi Benzion Meir Hai Uziel (1880-1953). A profound scholar from a distinguished Sephardic rabbinical family, Rabbi Uziel served as Israel’s Sephardic Chief Rabbi from 1938 until his death in 1953.

He was a prolific author, having published many volumes of rabbinic responsa (Mishpetei Uziel), as well as studies in Jewish law and literature, rabbinic homiletics, and issues relating to contemporary Jewish life.
One of Rabbi Uziel’s areas of concern was the issue of conversion of non-Jews to Judaism. Since this issue continues to be a source of controversy in the Jewish community, it is important that we be aware of the intellectually sound, compassionate and inclusive views of Rabbi Uziel.

In 1943, Rabbi Uziel responded to a question from Rabbi Raphael Hayyim Saban, Chief Rabbi of Istanbul. (Mishpetei Uziel 5724, no. 18). Rabbi Saban inquired about the permissibility of conversion of a non-Jew whose primary intention for conversion was to marry a Jewish spouse. Rabbi Uziel noted that in the ideal case, a would-be convert should indeed be motivated by purely religious aspirations. Yet, we do not live in an ideal world. Intermarriage is a reality, and such marriages are recorded in civil courts. If we did not convert the non-Jewish spouse, then children from intermarriages would be lost to the Jewish people, and the Jewish partner in an intermarriage would be guilty of the sin of intermarriage. Rabbi Uziel ruled that if we are faced with a de facto mixed marriage, we are permitted to convert the non-Jewish spouse and, when applicable, the children. If this is true when the couple is already married, it is obviously true before they have begun a forbidden marriage relationship.

Rabbi Uziel argued that the rabbinic courts should not take the haughty position that it need not help such couples. On the contrary, he stated that not only may the rabbinic courts do such conversions, but they were morally obligated to do so in order to prevent intermarriage, and in order to ensure that children born from such unions will be raised as Jews.

In 1951, Rabbi Uziel wrote a responsum to Rabbi Yehudah Leon Calfon of Tetuan (Mishpetei Uziel 5724, no. 20) in which he argued that rabbinic courts should convert even those who did not intend to be fully observant of Jewish law and custom. Our responsibility is to inform would-be converts of the obligations of the Jewish religion; but there is no requirement that the converts promise to observe all the details of Judaism. A person may be accepted for conversion, even initially, even if he/she gives no indication that he/she will observe all the mitzvoth. “From all that has been stated and discussed, the ruling follows that it is permissible and a mitzvah to accept male and female converts even if it is known to us that they will not observe all the mitzvoth; because in the end, they will come to fulfill them. We are commanded to make this kind of opening for them. And if they do not fulfill the mitzvoth, they will bear their own iniquities and we are innocent.”

Rabbi Uziel’s attitude is reflected in another of his responsa (Mishpetei Uziel, 5698, no. 26): “It is incumbent upon us to open the door of repentance; our sages of blessed memory did much for the benefit of those who would repent….I admit without embarrassment that my heart is filled with trembling for every Jewish soul that is assimilated among the non-Jews. I feel in myself a duty and mitzvah to open a door to repentance and to save [Jews] from assimilation by invoking arguments for leniency. This is the way of Torah, in my humble opinion, and this is what I saw and received from my parents and teachers.”

If you would like to know more about the life and teachings of Rabbi Uziel, including an elaboration on his views on conversion, please go to our online store where you can order a copy of Rabbi Marc Angel’s book, “Loving Truth and Peace: The Grand Religious Worldview of Rabbi Benzion Uziel.”

The Shulhan Arukh, composed by rabbi Joseph Caro in the 16th century, is a canonical code of Jewish Law. In this work, rabbi Caro writes that a ceremony of Giyyur (=‘conversion') is valid only if it includes Qabbalat Mitzvot. Rabbi Caro does not explain what this phrase means. The so-called "conversion crisis" results from the attempt to pressure all rabbis to adopt a specific interpretation of this requirement, i.e., to agree that Qabbalat Mitzvot means a whole-hearted commitment by the Ger (="convert" =‘proselyte') to fully observe all of the Mitzvot (commandments). On this view, if a person applying for giyyur intends to be a secular Jew, or even a ‘traditional' Jew who observes many (but not all) commandments, that person cannot be allowed to undergo a giyyur ceremony, because Qabbalat Mitzvot is lacking. This position has been strongly supported by ultra-orthodox haredi rabbis as the one-and-only correct interpretation of Qabbalat Mitzvot.

In fact, the meaning of this phrase in the context of Giyyur was not agreed upon during the 1000 years before rabbi Caro employed it, and was not agreed upon afterwards. As did many rabbis before them, leading Sephardic rabbis in the 20th century held other interpretations of this phrase. In the following text, the views of three such great Sephardic rabbis are discussed. In their view, Qabbalat Mitzvot means an acknowledgement by the Ger, that after they become a Jew they will be liable before G-d (as are all Jews) for their actions: if they sin, they may incur Divine punishment, while performance of mitzvot will earn merit and reward. According to this view, a valid halakhic giyyur is fully possible for persons who do not intend to subsequently follow a religious lifestyle.

The following is an excerpt from chapter 12 of a book entitled Transforming Identity, forthcoming in late 2007 from Continuum press. Written by Avi Sagi and Zvi Zohar (both are professors at Bar Ilan University), it has been characterized thus by rabbi Irving ‘Yitz' Greenberg:

This book is a tour de force, a rare combination of comprehensive scholarship, insight, fresh thinking and wisdom. This is by far, the best book on this topic in the English language.

Qabbalat Mitzvot as recognition of liability

According to this position, the content of a proselyte's declaration with regard to commandments does not relate to performance. Rather, she is required to acknowledge that as a Jewess, she will be subject to the halakhic system, and therefore be liable for the consequences of her future commissions and omissions. One scholar who holds this view is Rabbi Raphael Aaron b. Simeon,#_edn1" name="_ednref1" title="_ednref1">[1] who writes as follows:

The judges immersing the proselyte must be three... and they must immerse him in the daytime. While he is in the water, they notify him again about some of the more lenient and some of the harsher commandments. And it is our wont to ask him these questions briefly, after informing him of some of the lenient and harsher commandments, as he stands in the water:

- Are you are entering the religion of Israel wholeheartedly? And he says 'yes.'

- Is it the case that you have no ulterior motive, and you are undergoing giyyur only for the sake of Heaven? - 'Yes.'

- Do you willingly accept punishment for transgressing the lenient and harsher commandments we have explained to you when you accepted the religion of Israel? - 'Yes.'

... And he fully immerses before the judges. Once he has immersed and come up, he is like a Jew in every respect.#_edn2" name="_ednref2" title="_ednref2">[2]

This detailed dialogue between the court and the proselyte was composed by Rabbi Ben Shimon, and to the best of our knowledge it is the first time that such a detailed format is presented in halakhic literature. The proselyte is questioned with regard to his general attitude toward the Jewish religion, his motivation, and his acceptance of the negative consequences that might result from obligation to the commandments. He is not questioned as to whether he intends to observe the commandments and abide by them. Moreover, despite the unprecedented detail in this text by Rabbi Ben Shimon, he does not require subjective religious intent on the proselyte's part. When explaining the policy of the Egyptian rabbinate with regard to the giyyur of Gentile women living with Jewish partners, he writes that although the women's motivation is not religious:

We overlook this and accept them... and this is what we do in such cases. We make a condition and explain to the woman proselyte that her intention must be that even if her husband does not wish to marry her after this, and abandons her, she voluntarily accepts the religion, and that the reason for her giyyur is not contingent upon her [interest in] marriage to him. And she says 'yes'. And although we know what is in her heart, we are not very meticulous.#_edn3" name="_ednref3" title="_ednref3">[3]

Rabbi Ben Shimon is clearly not pleased with the significant discrepancy between the proselyte's declaration and her inner intention. However, he holds that the validity of her giyyur is not thereby impaired, as long as her verbal pronouncements conform to halakhic requirements and she accepts her liability for punishment if she transgresses any commandment.

Another scholar who identifies acceptance of commandments in the same way is Rabbi Ben-Zion Meir Hai Uzziel.#_edn4" name="_ednref4" title="_ednref4">[4] He begins his discussion of this issue by noting that the Talmud holds that most proselytes will not observe the commandments after their giyyur. This is the assumption underlying the dictum: 'Proselytes are as hard for Israel [to endure] as a sore',#_edn5" name="_ednref5" title="_ednref5">[5] as understood by Rashi and Maimonides.#_edn6" name="_ednref6" title="_ednref6">[6] Uzziel therefore states:

Although we know that most proselytes do not observe the commandments after circumcision and immersion; nevertheless, they [the rabbis] did not refrain from accepting them because of that. Rather, they inform them about some of the harsher commandments, namely, the punishment for transgressing them, so that 'So that if he wants to withdraw - he can withdraw.' But if they do not withdraw, they are accepted, and each proselyte will be responsible for his [future] sin[s], and the people of Israel are not liable for his behaviour. All we have said, then, makes the following absolutely clear: if a proselyte has accepted the commandments and their punishment, then, even when it is known he will not observe them, he should be accepted after being notified about the lenient and harsher commandments, their reward and punishment.#_edn7" name="_ednref7" title="_ednref7">[7]

According to Rabbi Uzziel, the requirement that a proselyte should accept the commandments does not mean that he is required to commit himself to observe them. Rather, it means that he recognizes that after becoming a Jew, he will be under the jurisdiction of the halakhic system. Therefore, he alone will bear responsibility for the consequences of non-compliance. The proselyte's assumption of responsibility for the consequences of his giyyur enables the court to accept him without hesitation, even if the court has good reason to assume that after becoming a Jew he will not observe the commandments. This leads Rabbi Uzziel to conclude:

It follows, that according to Torah, we are allowed and commanded to accept male and female proselytes even when we know that they will not observe all the commandments... and if they do not observe the commandments, they will bear their sin and we are not liable. #_edn8" name="_ednref8" title="_ednref8">[8]

This view is also advocated by Rabbi Moshe HaCohen,#_edn9" name="_ednref9" title="_ednref9">[9] who writes concerning the possibility of accepting proselytes who would subsequently follow a secular lifestyle in Israel. He writes that prima facie it seems:

quite simple that he should not be accepted for giyyur, [because] the explicit halakhah in Bekhorot (30b) is: 'A proselyte who agrees to take upon himself all matters of Torah, excepting one thing, should not be accepted.'#_edn10" name="_ednref10" title="_ednref10">[10]

Yet, a detailed analysis of the meaning of the 'acceptance of the commandments' required from a proselyte led HaCohen to conclude that his prima facie analysis was incorrect, because:

[A]ccepting the commandments does not mean that he must commit himself to observe all the commandments. Rather, it means that he accepts all the commandments of the Torah in the sense that, if he transgresses, he will be liable for such punishment as he deserves... And if so, we do not care if at the time he accepts the commandments he intends to transgress a particular commandment and accept the punishment. This is not considered a flaw in his acceptance of the commandments.#_edn11" name="_ednref11" title="_ednref11">[11]

According to HaCohen, then, proselytes are required to acknowledge that after giyyur, the Torah's framework of reward and punishment will apply to them as it does to all Jews. Whoever agrees to this completely fulfils the halakhic requirement of acceptance of the commandments, even if in fact they subsequently fail to observe the commandments, and even if the court knew at the time of giyyur that they would act in such a manner.

In another Responsum, Rabbi HaCohen describes a fundamental problematic posed by the secular reality of Israeli society:

Many Jews married Gentile women after the Second World War and have fathered sons and daughters with them. According to the law, the children's status follows that of their Gentile mother [i.e. they are not Jewish]. When they come to Israel, the husband brings the children [to the court] for giyyur, sometimes with their mother and sometimes on their own. The trouble is that they reside in places in which the people do not observe the tradition: they eat forbidden foods and desecrate the Sabbath and the holidays. It is clear that after giyyur they will behave similarly to the Jews among whom they live, since it is almost impossible for them to be observant. #_edn12" name="_ednref12" title="_ednref12">[12]

Rabbi HaCohen explains that his interpretation of acceptance of the commandments as recognition of liability provides the grounds enabling giyyur in secular Israeli reality.#_edn13" name="_ednref13" title="_ednref13">[13]

Notes

#_ednref1" name="_edn1" title="_edn1">[1] Chief Rabbi of Cairo, 1891-1921 (died in 1929).

#_ednref2" name="_edn2" title="_edn2">[2] Rabbi Raphael Aharon Ben Shimon, Nehar Mitsrayim (Alexandria, Farag Hayyim Mizrahi, 1908), p. 113a.

#_ednref3" name="_edn3" title="_edn3">[3] Ibid.

#_ednref4" name="_edn4" title="_edn4">[4] Born in Jerusalem in 1880, he was Sephardic Chief Rabbi of Eretz Israel from 1939 until his death in 1953.

#_ednref5" name="_edn5" title="_edn5">[5] Yevamot 47b.

#_ednref6" name="_edn6" title="_edn6">[6] For Rashi see Yevamot ibid., s.v. de-amar mar. For Maimonides see Hilkhot Issurei Biah 13:18.

#_ednref7" name="_edn7" title="_edn7">[7] B.-Z. H. Uzziel, Mishpatei Uzziel (2nd edition, Jerusalem, 1950), Yoreh De'ah, Vol. 1, # 58, p. 205.

#_ednref8" name="_edn8" title="_edn8">[8] B.-Z. H. Uzziel, Mishpatei Uzziel, Even ha-‘Ezer, # 20; Piskei Uzziel B'shelot Hazman (Jerusalem, Mossad HaRav Kook, 1977), # 68.

#_ednref9" name="_edn9" title="_edn9">[9] Jerba 1906 - Israel, 1966. A leading rabbi in the community of Jerba, he immigrated to Israel in the 1950s and served as a dayyan (judge) in the rabbinical court of Tiberias.

#_ednref10" name="_edn10" title="_edn10">[10] M. Hacohen, Responsa Ve-Heshiv Moshe (Jerusalem, 1968), Yoreh De'ah, #50.

#_ednref11" name="_edn11" title="_edn11">[11] Ibid.

#_ednref12" name="_edn12" title="_edn12">[12] Ibid., # 51.

#_ednref13" name="_edn13" title="_edn13">[13] Rabbi HaCohen's position is further explicated in ch. 4 of Transforming Identity.

Question: May women recite Kaddish in the synagogue?

Response: A contemporary compendium on mourning practices is the anthology written by Rabbi Chaim Binyamin Goldberg (P'nai Baruch, first published in 1986) and translated into English under the ArtScroll title, "Mourning in Halachah". Concerning the issue of women reciting Kaddish, Rav Goldberg notes the following: "If the deceased left only daughters, although some have permitted a daughter to recite Kaddish at a prayer service in her home, virtually all other Poskim disagree and rule that a daughter should not recite Kaddish even in her home." (Mourning in Halachah, chapter 39:21, p. 359) Thus it would appear that halakhic authorities are generally opposed to women reciting Kaddish whether at home or in the synagogue.

The difficulty with this pervasive negative halakhic orientation is that it fails to take into consideration the rulings of the three most influential halakhic sages in America. Indeed, it is openly recognized that the rulings of the following three rabbis permeated the essence and formed the standards of synagogue life in America: namely, Rav Yosef Eliyahu Henkin, Rav Moshe Feinstein and Rav Yosef Dov Soloveitchik.

Rav Henkin (1880-1973) was the Director of Ezrat Torah, a relief organization for needy rabbis. Each year, he authored and published the popular "Luach" for synagogue life wherein he detailed halakhic practices. He was deemed the "Posek haDor", the decisor for issues impacting on synagogue life. Concerning women saying Kaddish, he wrote: "The question as to whether a [bereaved] daughter may recite the Kaddish is bound up with her observance of the Sabbath, kashruth, and the laws of family purity. If she does keep these basic mitzvoth, it is permissible for her to say Kaddish in the women's gallery while the men are doing so in the synagogue proper." (Teshuvot Ivra. The entire text of the teshuva is translated by David Telsner, The Kaddish, p. 301.)

Subsequent to Rav Henkin, the halakhic arbiter for American Orthodox synagogues was Rav Moshe Feinstein, of blessed memory. In a posthumous publication of his responsa, the following is reported. Rav Moshe was concerned with whether it was necessary to have a Mehitza separating the men and women sections for prayer, in the event that there were only one or two women . He notes: "Throughout the generations the common custom was for a poor woman to be in the Bet haMidrash to receive charity, or as a mourner to recite Kaddish." His response was that a Mehitza was necessary even for one woman [who attended] on a regular basis. On an occasional basis, it was not necessary, should only one or two women be present. (Iggrot Moshe, Vol. 8, O.H. 5:12b) Note the terminology and the concern. Rav Moshe does not question the propriety of the woman who comes to the Bet haMidrash to recite Kaddish. He seems to assume that there are no halakhic qualms at all with such a function of women at religious services. The only problem is whether there need be a Mehitza during her recital. Indeed, it is apparent that Rav Moshe accepts a woman reciting Kaddish as a normal, unquestionable practice.

For many thousands of students of Rav Yosef Dov Soloveitchik, of blessed memory, (former Rosh haYeshiva of Yeshiva University, and halakhic authority for the Rabbinical Council of America) a halakhic ruling from him was deemed authoritative. It is reported that Rav Soloveitchik ruled that is was permissible for women to recite Kaddish in synagogue. (cited by Joel Wolowelsky in a letter to the editor of HaDarom, vol. 57, Ellul 5748/1988, pp. 157-158.)

Thus, while it may be true that the overwhelming majority of halakhic scholars have ruled negatively concerning women reciting Kaddish in synagogue, it cannot be discounted nor overlooked that the three greatest decisors of halakha for American Torah Judaism appear to permit such a practice. Accordingly, those who permit this practice certainly have great halakhic scholars upon whom to rely. Of concern is the rationale for both the lenient as well as the stringent view pertaining to women reciting Kaddish.

In a note clarifying the ruling that women should not say Kaddish, Rav Goldberg notes the following: "See Pit-hei Teshuva Y.D. 376:3) citing Havot Yair (222) who answers a question about someone who died without leaving a son. The father commanded that his daughter should recite Kaddish. Havot Yair states: "According to the basic law, she should recite Kaddish, for [the recitation of Kaddish] by a daughter gives benefit and satisfaction to the soul [of the departed]. Nevertheless there is danger that the practice would weaken the customs of the Jewish people. And since it is a conspicuous matter (pirsum) one should protest against it." (Mourning in Halachah, p. 359, footnote 36) In other words, the saying of Kaddish by women does not intrinsically violate any halakha of prayer. The negative view is a form of a rabbinic statute (gezeirah) to sustain customs and prevent a possible future infringement of customs. It is as if the rabbis are saying that should this matter be permitted, it may lead down the road to a step-by-step whittling down of safeguards. The prohibition is, therefore, a "fence" to safeguard the Torah.

It is important to note that the ruling of the Havot Yair (1638-1702) cited by the Pit-hei Teshuva and the ArtScroll translation is not an accurate rendition of the actual position of the Havot Yair. The following is a full translation of the responsum of Havot Yair:

"A strange matter took place in Amsterdam and is well known there. A person died who had no son. He left instructions that in the event of his death, ten people should be paid to learn [Torah] every day throughout the year of mourning, in his home. And subsequent to the learning session, his daughter should recite Kaddish. The rabbinic sages and leaders of the community did not protest her recitation... It may be that a woman is also required to observe the Mitzvah of Kiddush Hashem (sanctifying God's name). This occurs by the fact that there are ten men present. Though the original source for the recitation of Kaddish is the story of Rabbi Akiva informing a youngster to recite Kaddish and that case deals with a male, not a female, logic would dictate that [a woman's recitation of Kaddish] would be beneficial and bring satisfaction to the soul [of the departed] in that she is the seed [of the departed]. Yet, one should be concerned that this would weaken the customs of the people of Israel, which are also deemed [an integral aspect of] Torah. [One must prevent] everyone attempting to build an altar for himself according to his personal reasons and thus make a mockery of rabbinic laws....[In conclusion] since the matter relates to a public gathering, one should protest it." (Responsa Havot Yair, no. 222, free translation)

The actual text generates a number of interesting observations. First is the fact that the sages of Amsterdam had no qualms over the matter at all. Indeed, it is necessary to discern the real reason why the Havot Yair felt that the case in Amsterdam might lead to a disdain and disintegration of customs. Why was there such a fear? Note the concern that people would build a personal altar. What was so unique about the case?

I suggest that many may have misread the concerns of the Havot Yair. He was not perturbed by a woman reciting Kaddish at a regular minyan. Note that the case was not dealing with a regular minyan for daily services, but related to a very unique request. It was for a minyan to learn Torah in a home and for a woman to recite Kaddish subsequent to the learning. It was, therefore, an unusual request. It was as if it was not important for the daughter to recite Kaddish at a normal minyan for morning, afternoon and evening services. The only concern was for the daughter to say Kaddish after a special Torah learning session. This was deemed a denigration of the normal recitation of Kaddish. To permit this and not be concerned with saying Kaddish after a regular daily prayer was tantamount to giving people the right to make new customs and disdain the old. Accordingly, the Havot Yair opposed such a practice. However, should a daughter pray in a regular synagogue and recite Kaddish together with the other mourners, perhaps even the Havot Yair would permit such a practice for the reasons he himself articulated: 1) it was a form of Kiddush Hashem; 2) It brings satisfaction to the soul of the departed. Also, rather than promote a disdain for customs, the recitation of Kaddish in a synagogue generates a firm dedication to the traditional reverence given to the departed by the Jewish people. In addition, it may have been a long-standing practice for women to say Kaddish in synagogues after services.

As such, I believe that women who wish to attend daily religious services and to recite Kaddish should be encouraged and acknowledged as faithful adherents of our heritage, not as innovators seeking to restructure or liberalize halakhic practices. The recitation of Kaddish generates a sense of respect to loved ones. Not all women seek such a process; but those who do should be treated with respect and honor.

The problem of the agunah—the woman whose husband refuses to give her a Jewish divorce—challenges the viability of Orthodoxy in a modern world that stands, if I may be given some poetic license, on the three pillars of equality, human rights, and the autonomy of the individual. How can it be that a Jewish woman in the twenty-first century is still dependent on the whims of her husband for her marital freedom?
In this article, I have three goals:

1. To describe the development of the tort of get refusal as a response to the problem of the agunah in the Diaspora and in Israel.
2. To explain why tort has gained popularity as a rejoinder to get refusal.
3. To argue that, although the tort of get refusal is not a systemic solution to the dilemma of the agunah, it is a step that may inspire the halakhic community to rise to the challenge of resolving this problem once and for all.

In recent years, various solutions have been proffered to end the problems of Jewish women and divorce. They include: prenuptial agreements (spanning the spectrum from the conservative Willig/RCA contract[1] to the more progressive tripartite agreement of Rabbi Michael Broyde[2]); annulment based on a major defect (Rabbi Rackman)[3]; and civil marriage.

Despite these solutions, agunot abound. I specialize in them, in particular since 1997, the year that I began my career as a cause lawyer, first as the founder and director of Yad L’Isha (1997–2004); and since 2004 as the founder and director of The Center for Women’s Justice. For the past ten
years or so, I have had the privilege to initiate the first and then a
series of successful damage claims against recalcitrant husbands in the
Israeli civil courts—referred to in legal parlance as "tort" cases. The term torts comes from the Latin, tortus, which means: twisted, crooked, dubious—like the husbands who refuse to give their wives a get—and
refers to acts that are wrong, cause harm, and should be redressed by
law. The idea behind these cases is that a husband who refuses to give
his wife a get is intentionally causing her emotional distress, and he should be obligated to make her whole for all the damages that ensue—including the infringements on her autonomy, her ability to remarry and have children, her pain and suffering—in the same way that he would be held liable for damages if he intentionally assaulted a third party.

The idea of using tort law as a response to get refusal was first raised in the United States, to the best of my knowledge, in the 1980s in two law review articles (one by Barbara Redman[4]; another by David Cobin[5]); and by Rabbi Prof Irving Breitowitz in an entire chapter in his book The Plight of the Agunah[6] entitled “Tort Law Theories." Although Redman and Cobin enthusiastically supported using tort as a remedy for the problem of get refusal, Breitowitz objected, noting possible U.S. Constitutional problems (church and state separation), as well the “classic” halakhic problems when it comes to divorce—the specter of the “forced divorce,” get me’useh.[7]

Some History

In the Diaspora

Notwithstanding the problem of separation of church and state, or issue of the “forced divorce,” Jewish women have turned in desperation to the civil courts all over the world to find relief from get refusal. To give just a few examples:

· Since the 1950s,
French courts have consistently awarded damages to wives whose husbands
refused to remove barriers to their remarriage despite their civil
divorce, declaring that such actions inflicted mental distress in
violation of section 1382 of the French Civil Code. [8]

· In 1967, a London court awarded Mrs. Brett a delayed lump sum payment of £5,000 for spousal support if her husband did not grant her a get within three months.[9] The judges held that the conduct of the husband “preclud[ed] the possibility of the wife remarrying and thus finding some other man to support her”; and that the husband was trying to “use his power to bargain and avoid payment of part or any maintenance award.”[10]

· In 1980, a family court in Sidney, Australia, citing Mrs. Brett’s case, issued a decision awarding 2,000 Australian dollars
in deferred alimony to Mrs. Steinmetz, claiming that her husband was
using “his power to prevent the wife from remarrying and gaining the
benefit of additional financial support which might come to her from
marriage.”[11]

· In 1985, the New York State legislature passed a law (familiarly known as the “First New York Get
Law”) requiring plaintiffs, as a prerequisite for filing for divorce,
to declare that they had removed, or were willing to remove, the
barriers to remarriage of their spouse.[12] Since then, Canada,[13] England and Wales,[14] Scotland,[15] and South Africa[16] have passed similar statutes.

· Not satisfied with the deterrent impact of the 1985 New York Get Law, in 1992 the New York legislature passed the “Second New York Get Law,” which allowed
a judge to take into consideration the failure to remove barriers to
remarriage when awarding alimony or dividing up marital property.[17]

· Isolated family courts in the United States have held that the ketubah requires husbands to give their wives a divorce and then ordered husbands to do so;[18] or that extortionist divorce agreements could be invalidated as unconscionable.[19]
In 2000, Judge Gartenberg of the New York Family Court voided an
unconscionable agreement in which Mrs. Giahn gave up almost all of her
rights to marital property in exchange for the get. Despite the agreement and the fact that the wife had fulfilled her part of the bargain, Mr. Giahn sadistically failed to give his wife a get for eight years. The judge held that the “coerced, unconscionable, and overreaching” divorce agreement “exploit[ed]
the power differential between the parties” and invoked principles of
“equity” and the “intentional infliction of emotional distress” to
award all the marital property to the wife (about $400,000).[20]

In Israel

In Israel, rabbinic courts have sole jurisdiction over matters of marriage and divorce.[21] So it was within the halls of the rabbinic courts, and in accordance with Jewish law, that we women lawyers and political activists first tried to find relief for the woman caught in the mire of Jewish divorce law. We asked the rabbinic courts to issue more orders against recalcitrant husbands, even to put them in jail. We asked the rabbinic judges to expand the grounds for interfering with a husband’s free will to give a get. We drafted prenuptial agreements that allowed for increased spousal support. And in the meantime, we collected growing numbers of agunot.
In 1999, Hanna came into my office. She was thirty-six years old and had lived apart from her husband since she was twenty-six. In 1994, the rabbinic court had tried to convince Hanna to give up all her property rights and to waive child support for her five children in exchange for the get.
She refused and saw no reason to return to the rabbinic court for
relief of any sort. Suing her husband for damages was her last resort.
In 2000, I filed a claim for damages for Hanna against her husband for get-refusal.
We argued that his refusal to divorce her caused emotional harm and
infringed on her basic rights to marry and have children. In December
2001, on the same day that Hanna's husband agreed to give her a get
in exchange for the dismissal of her tort claim, the Hon. Judge
Ben-Zion Greenberger of the Jerusalem Family Court denied a motion to
dismiss the complaint (File 3950/00); and held that get-refusal
is a tort since it violates a woman's personal autonomy protected under
the Basic Law: Human Dignity and Freedom. Similar law suits followed.
All held that damage cases were within the sole jurisdiction of the
family courts. All resulted in the husband giving the get in exchange for the dismissal, with prejudice, of the damage claims.
In December 2004, a particularly stubborn husband gave Judge Menachem HaCohen the opportunity to rule on the merits of a case. Judge HaCohen awarded a wife, another of my clients, 325,000 NIS in damages, and 100,000 NIS in aggravated damages (about $100,000 in total) (File 19270/03). HaCohen held that get-refusal
was a "tort" because it was unreasonable behavior that fell under the
rubric of negligence, section 35 of the Tort Ordinance.[22] In 2006, Judge Tzvi Weitzman, following the logic of Judge HaCohen, ordered the estate of a man to pay his wife 711,000 NIS in damages (about $180,000) (File 19480/05).
In 2008, three more women were awarded damages for get-refusal. The awards ranged from 377,000 NIS to 700,000 NIS (awarded to a woman who lived with her husband for only three months and had been refused a get for eleven years). In 2008, Judge Nili Maiman also denied a motion to dismiss a complaint against a mother, two brothers, and a sister, holding that a cause of action could prevail against family members for aiding and abetting get-refusal.
Since 2000, more than thirty women have filed for damages against their recalcitrant husbands. In many of these cases, the husbands agree to give the get in exchange for waiving the damage claims. In all of these cases the Bet Din was only too happy to be done with these cases and arrange for the get.
All
this notwithstanding, in March 2008, the Supreme Rabbinic Court held
that the filing for damages in the family court would invalidate
subsequent divorces because of the “forced divorce” (File
no.7041-21-1); and threatened that attorneys who advise their clients
to file tort cases are liable for malpractice. Attorneys continue to
file these cases; and men continue to give the get, or not. It all depends on them.

Why Tort?

In
an article that I have written for Brandeis “From Religious Right to
Civil Wrong: Using Israeli Tort Law to Unravel the Knots of Gender,
Equality and Jewish Divorce,” [23] I explain that tort
law is an important tool in the hands of innovative cause-lawyers who
want to reform Israeli divorce law, and whose vision of an ethical
Israeli society is one that is both Jewish and democratic. Tort law
allows these cause lawyers to articulate and reframe the problem of
Jewish women and divorce in a manner that makes room for such vision. Such reframing is far reaching in its goals and theoretical underpinnings.
Reframing is an act of translation in which an interpretive code ("schema") is transposed from one setting to another. This act of translation and renaming
allows the legitimacy of the familiar (harms should be redressed) to be
attached to the strange (a Jewish husband gives a divorce of his free
will).[24] Translation
is a creative but difficult balancing act in which the
translator-cause-lawyer must maneuver adroitly between tradition and
change, politics and justice, words and visions. The translator must try to resonate with existing laws and customs, and at the same challenge them. Cause lawyers who reframe a Jewish husband’s "right" to deliver a get at will into a civil "wrong," translate simultaneously in more than one direction. They reframe tort law to include get-refusal;
and they reframe religious law to recognize the forced divorce as an
actionable injurious act. They translate transnational human rights
principles (women have the right to divorce[25]) down into civil tort claims; and they translate local religious practice (only the husband can give the get) into tort violations.

I
posit that these delicate acts of translation and reframing allow cause
lawyers to define and delineate the problem of Jewish women and divorce; rally consciousness and unite women; demystify an act of power; defrock a religious act; and bring the State in to redress the harms inflicted on its citizens. Moreover, by constructing the tort of get-refusal, cause lawyers draw attention to the conflict of values between religious divorce laws and civil/human rights, and force a dialogue that the rabbinic courts would otherwise avoid.

Why Not?
Freedom's just another word for nothin' left to lose,
And nothin' aint worth nothin' but its free
“Me and Bobby McGee" Kris Kristofferson, Fred Foster
The women who bring these claims against their husbands have waited on average of ten years before bringing them. Once filed, either they receive their gets, because their husbands agree to give them of their own free will--and the rabbinic courts, in fact, have arranged for those divorces without raising any question regarding their validity; or the husbands refuse to give the get of their own free will, and the court awards damages to the wives. Sometimes the women collect on these judgments; and sometimes they don’t. If they do, it’s when their husbands are financially solvent. If they don’t collect, they offer up their decisions as a sacrificial deterrent for the benefit of other agunot.

The only reason to stop bringing these lawsuits would be if Orthodox rabbis finally acknowledge that the problem of Jewish women and divorce must be solved. They must take the power to give a get,
or not, out of the hands of the husband. The problem of the “forced divorce” must be understood as a euphemism for giving unfettered and unilateral dominance to men over their wives. The rabbis must change the Jewish marriage ceremony at its core, or allow for marriage to be entered into on conditions that guarantee proper divorce rights for women.[27] Until that happens, women must keep filing tort cases.

[1] “The Prenuptual Agreement, Halakhic and Pastoral Consideration,” Basil Herring and Kenneth Auman, eds. 1996, 45–53. See also Susan Weiss, Sign at Your Own Risk: The "RCA" Prenuptial May Prejudice the Fairness of Your Future Divorce Settlement, 6 Cardozo Women's L.J. 49 (1999).
[2] Response of Rabbi Broyde to Rabbi Dr. Aviad HaCohen’s “Tears of the Oppressed,” Edah online journal.
[3] Susan Aaranoff, Two Views of Marriage, Two Views of Women: Reconsidering. 3 Nashim 199 (Spring– Summer 2000); but see Rabbi J. David Bleich, Kiddushei Ta’ut: Annulment as a Solution to the Agunah Problem, 33:1, Tradition 90, 115 (1998).
[4] Barbara Redman, What Can Be Done in Secular Courts To Aid the Jewish Woman? 19 Geo. L. Rev. 389, 416 (1984—1985).
[5] David M. Cobin, Jewish Divorce and the Recalcitrant Husband: Refusal to Give a Get as Intentional Infliction of Emotional Distress, J. L. & Religion 405 (1986); Breitowitz, The Plight of the Agunah, supra note 42, 239–249.
[6] Irving A. Breitowitz, Between Civil and Religious Law, the Plight of the Agunah in American Society 286–291 (1993).
[7]
Orthodox lore maintains that a Jewish divorce is only valid if a get is
given by a husband to his wife of his free will. A divorce that is
given after applying pressure that impinges on a man’s will is invalid
(literally a forced divorce, a get me’useh)
unless such pressure is applied by a Jewish court, within the limited
parameters of the causes of action recognized by Jewish law. See M. Yebamot 14:1 (T.B. Yebamot 112b): “A
man who divorces is not like a woman who is divorced because the woman
is divorced with her consent or against her will, while the man divorces only with his own free will.” See also Rambam, Dinei Gerushin (Laws of Divorce), Chapter 1, Laws 1 and 2.
[8] See Jean Claude Niddam, Emdatam Shel Batei Mishpat HaEzrahiyim BeTzorfat Klapei Tviot Neged Ba'alim Yehudiyim LeMisirat Get [The Position Taken by the French Civil Courts in Suits for a Jewish Divorce Against Recalcitrant Husbands] 10/11 Diné Israel 385 (1981–1983) (includes translation into Hebrew of six French cases decided between 1955 and 1980). Despite attempts by French husbands to claim that damage awards violate the halakhic
prohibitions against the forced divorce, French rabbis have held that,
insomuch as such damage awards relate to time past (and not to the
future), they do not violate Jewish law. Memorandum from Annie Dreyfus (in French) (on file with author).
[9] Brett v. Brett 1 All ER 1007 (1967).
[10] Ibid., at 1011, and 1015.
[11] In the Marriage of Steinmetz, 6 Fam LR 554 (Fam. Ct., Aust., Sydney) (1980).
[12] N.Y. Dom. Rel. §253 (McKinney 1988).
[13] Canadian Divorce Act §21; Ontario Family Law Act, Section 56 (5), Limitations on Separation Agreements.
[14] England and Wales, #000000">Divorce (Religious Marriages) Act 2002 (came into force on 24th February 2003).
[15] http://www.scotland.gov.uk/library/documents-w8/isfl-03.htm (recommends adopting the law in England and Wales).
[16] South Africa, §5a The Divorce Amendment Act 95 (1996).
[17] N.Y. Dom. Rel §236B Section 5(h).
[18] Stern v. Stern, 5 Fam. L. Rep. (BNA) 2810 (N.Y. Sup. Ct. 1970); Burns. v. Burns, 223 N.J. Super. 219, 538 A 2nd 438 (N. J. Super. 1987); In re Goldman 196 Ill. App. 3d 785, 554 N.E. 1016 (Ill. App. Ct. 1990); But see Breitowitz, Plight of the Agunah, supra note 41, at 77–96 (criticizing the courts' interpretation of the ketubah as an implied contract to give a get).
[19] Perl
v. Perl, 126 A.D.2d 91, 512 N.Y.S.2d 372 (1987); Golding v. Golding,
176 A.D.2d 20, 581 N.Y.S.2d 4 (1992); Schwartz v. Schwartz, 153 Misc.2d
789, 652 N.Y.S.2d 616 (1997).
[20] Giahn v. Giahn (Sup. Ct. N.Y) (April 2000) available at http://www/jlaw.com/Recent/giahnhtml. See also Weiss v. Goldfeder NYLJ, Oct. 26, 1990 (maintains that withholding of the get may be tantamount to the intentional infliction of emotional distress).
[21] §1 Rabbinic Courts Jurisdiction (Marriage and Divorce) Law 5713–1953
(“Matters of marriage and divorce of Jews in Israel, being nationals or
residents of the State, shall be under the exclusive jurisdiction of
rabbinic courts.”)
[22] On December 5, 2007, The Supreme Court of Canada awarded damages to a woman whose husband breached an agreement to give her a get, citing Judge HaCohen’s decision is support of same.
[23] In Gender, Culture, Religion, and Law (Publication Pending).
[24] See Patrick Ewick and Susan S. Silbey, The Common Place of Law (1998); Austin Sarat and Stuart Scheingold, The Worlds Cause Lawyers Make: Structure and Agency in Legal Practice (2005) (discusses how lawyers use schemas creatively).
[25] CEDAW (Convention for the Elimination of Discrimination against Women).
[26] Meir Simha HaCohen Feldblum, “The Problem of Agunot and Mamzerim: A Proposed Encompassing and General Solution,” 19 Dinei Yisrael 203–215, 212–3 (1997–8).
[27] See Eliezer Berkovits, T'nai beNisuin veGet (Conditional Marriages and Divorces) (1967).

There was no Rabbi more concerned with tseni'ut (modesty) than R. Moshe Feinstein. He was against men shaking a woman's hand even as a polite greeting (IM OH 1:113; EH 1:56). Even in circumstances when the law didn't strictly prohibit the mingling of men and women, he encouraged God-fearing people to avoid such situations.

There is, however, one place where R. Feinstein had no problem with men and women being together: the marketplace. In workplaces, on trains and buses-including the crowded New York subway system-R. Feinstein's stance is absolutely clear. There is no halakhic, or even spiritual problem, with men and women sitting next to each other in such situations: "Because, " wrote R. Feinstein, "unavoidable and unintentional physical contact is devoid of sexual connotations....And if a man knows that he will read into this contact sexual connotations...he should focus his mind on Torah. For it is idleness that causes a man to be prone to lascivious thoughts" (Even HaEzer 2:14).
All this was asked and answered decades ago.

If, then, there is clearly no halakhic problem, what is really behind the sudden rise of Hareidi demands that public buses in Israel be sex-segregated, women banished to the back door and the back seats? Furthermore, what is the motivation of the women, almost all of them Orthodox like myself, who have taken the unprecedented step of filing a legal complaint in Israel's Supreme Court to stop Israel's Ministry of Transportation and the monopolistic public bus lines Egged and Dan from caving into Hareidi demands? Where are the battle lines being drawn, and what will be the meaning of victory or defeat in this newest arena of modern ultra-Orthodox re-fashioning of Jewish life to fit an image and a lifestyle that has no Jewish precedents?

The desire for sex-segregated buses is not new. Over a decade ago, Hareidi elements in B'nai Brak pressured then Minister of Transportation Yitzchak Levi to allow two public buses serving Hareidi neighborhoods within B'nai Brak to require separate seating. From this seemingly small and very limited accommodation to the sensibilities of extremist elements in a tiny, isolated homogenous religious sector in a small section of a small town, was born the idea that a public bus, serving the general public, can make demands relating to gender, invading their passengers' private space to decide what seat they can or cannot choose to sit in on a public bus; how they can dress, and what the driver can listen to on the radio.

Before that time, Hareidi passengers managed to ride public buses without undo difficulties. Honestly, many were the times when I voluntarily chose to find another place to sit rather than impose my presence on a Hareidi man. I did this out of a sincere desire not to affront what might be a delicate religious sensibility, despite the clear lack of any halakhic basis. Used to the idea of Jews who require a hekhsher on salt or detergent-without any halakhic basis-I did not want to step on anybody's list of no's. Why make someone uncomfortable if you don't have to? Where I drew the line was standing if no other seat was available. My feeling was that if one decides to adopt a humra (stringency), others need not suffer. If he had a problem sitting next to me, he was welcome to stand. I am sure many Hareidi men welcomed the opportunity to give their seats to elderly women, or to a woman carrying a child and a baby carriage. I remember that a Hareidi man actually did get up and offer me his seat when I was eight months pregnant, and the bus was in sardine-class mode.

When did this status quo suddenly become unacceptable? And more importantly, why? Is this really a battle over religious observance? Or is it a battle over something far less holy, and far more prosaic? "Separated buses are a wonderful opportunity to make some easy money in the Hareidi society; and this is what makes this issue so harsh," says Yonatan (not his real name), a Hareidi resident of Sanhedria in a recent article published in the Jerusalem Post. "From outside, in the secular world, it seems as if it is all about these things you may call fundamentalism. This is indeed how it started. But today, inside the Hareidi society, it is mainly a matter of earning a living. People here ask, 'Why should we renounce such an opportunity for profit, especially in these days of economic turmoil, and leave the profit to Egged?'"

According to Israeli law, the Ministry of Transportation must approve all bus stops, routes, and fares. Getting approval involves paying expensive tariffs to the Ministry of Transportation. Unauthorized buses and taxis are known in local slang as chapperim. In 2001, Hareidim began to operate just such an unauthorized line between Jerusalem and B'nai Brak, claiming that communication between them and the bus companies had broken down, and that their demands--including not only separate seating but also what music could be played on the radio, and what the stores in the Central Bus station could advertise and sell-were not being met.
In an article published on the Hareidi website Dei'ah Ve'Debur in 2001, author Betzalel Kahn wrote:

The Vaad Mehadrin, which acts in accordance with the dictates of gedolei Yisroel, faced two challenges-the
failure to come to a settlement with the various parties; and the bureaucratic obstacles placed before the route's implementation. As a result of the obstacles, the Vaad Mehadrin decided to utilize an independent, shomer Shabbos bus company to operate a new Jerusalem-B'nai Brak route, mainly as a means to pressure the bus cooperatives and the Ministry of Transportation to run the 402 line. The mehadrin line carried about 14,000 passengers during hol haMoed Succoth. This seems to have jarred the other factors into taking action. The one-way price was only NIS 10 (about $2.32) as opposed to Egged and Dan's inter-city fare of NIS 18.50 (about $4.29). The independent line's fare is 46 percent cheaper, without government subsidies and it still made a profit (emphasis added).

One cannot help wondering if this would have been true if tariffs had been paid.
The article continues:
Rabbi Micha Rothschild, one of the Vaad Mehadrin heads, said in an earlier interview, "Instead of the heads of the Transport Ministry meeting the minimal request of gedolei Yisroel, who demanded throughout the years to operate mehadrin lines for the Hareidi public, the Ministry of Transportation continued with its scheming against the new mehadrin line. Transport Ministry inspectors-with police assistance-followed the buses, stopped the drivers, fined them thousands of shekels, and even wanted to suspend the company's operating license. Such a situation is intolerable. The Hareidi public, which (almost) entirely utilizes public transportation, deserves a route run according to its values.
In recent weeks, Hareidim in Jerusalem began running their own mehadrin bus routes to the Kotel-again, illegally, without applying for a license or paying tariffs. This, they said, was in response to the Supreme Court's interim decision on our petition to prevent the bus companies from designating any more routes as mehadrin until our case was decided. Before we filed, new mehadrin lines were sprouting at the rate of ten a month all over the country, and not between Hareidi communities, but cities. This line, which did not apply for a license, and did not pay fees to the Ministry of Transportation, and had thus made no attempt to become legal, was shut down. The result was a carefully orchestrated "riot" by the Hareidi "public" who stoned Egged buses, causing the bus company to finally stop cooperating, taking umbrage, and refusing to provide any buses at all to Meah Shearim that day.
I must say I was delighted to see Egged finally show a little backbone. Unfortunately, Egged seemed far more outraged to see its profit margins attacked than its female passengers. I say this from personal experience.
My own involvement with this issue began several years ago when I inadvertently got on a completely empty bus that followed the most direct route to my then neighborhood Ramot, in Northern Jerusalem. Let me emphasize that my neighborhood was mixed: Orthodox, non-Orthodox, and Hareidi. At that time I had no idea such buses existed. I got on one not because I wanted to start a feminist protest, but simply to get home as quickly as possible from the center of town.
Choosing a single seat near the front of the bus, which was clearly visible to the silent driver who issued no demands and no warnings about what I had just unwittingly stepped into, I sat down and opened up a newly purchased magazine. Soon a young Hareidi man sat down in front of me. He turned around and delicately informed me that I wasn't allowed to sit where I had chosen to sit. I closed my magazine and looked at him. He was about my son's age. "Listen," I said. "I'm not sitting next to anyone. No one has to look at me if they choose not to. This is a public bus, and I'll sit wherever I choose." He didn't argue. Actually, he seemed uncomfortable, and simply turned around. Little did I know that this young man was actually trying to help me.
Returning to my article, I didn't notice that the bus was filling up in a peculiar, gender-segregated manner until a huge, sweating bear of a man in a black suit and hat leaned over me threateningly and shouted: "Move to the back of the bus! Who do you think you are? There are laws in this country!"
I stared at him, then looked around the bus. I was the only woman sitting in the front. My sisters were all in the back. Not a single one of them lifted her head or her voice. It was a moment of truth for me. I guess I could have gotten up and moved to the back. If only the gentleman in black wasn't hanging over me barking orders, perhaps I would have. But to be addressed in public in such a humiliating and aggressive manner by a stranger who felt that he had the right to order about with such barbaric lack of manners someone old enough to be his mother ('s younger sister) made me realize that I could not, without ruinous consequences for my dignity and self-respect, accommodate him. It really did make me feel like Rosa Parks. And so I said, quietly, but in hearing distance of all: "When you bring me a Shulhan Arukh and show me where it is written that I can't sit here, I'll move. Until then," I suggested a few places where he might go in the interim.
The reaction was explosive. He leaned in close and started to call me names that I shall not repeat. There is no question in my mind, that only the prohibitions of negiah (non-permitted contact with someone of the opposite gender) prevented him from picking me up bodily and heaving me out of my seat.
This is not paranoia.
Miriam Shear, a Canadian grandmother who took the number 2 bus to the kotel to pray every day (a bus not designated mehadrin by the way) who took a front seat and refused to move, was spat upon, had her head covering torn off, and was thrown to the ground and beaten by men in ultra-Orthodox clothing who apparently had fewer scruples about negiah.
Horror stories abound: A pregnant woman got on the 318 midnight bus from B'nai Brak to Rehovot. She sat in the front because of motion sickness, explaining this to the other passengers. One Hareidi man stopped the bus by standing with one foot outside and one on the step up so the driver couldn't close the door. The woman finally fled into the street in the middle of the night. The other passengers went looking for her and found her under a tree, humiliated, hurt, and refusing to re-board. She called her husband to come and get her. A young woman on the midnight bus from Safed to Afula boarded wearing pants, and had to fight with the driver and other passengers who insisted that she be thrown off the bus in the middle of the road. A grandmother helping her son and grandchildren to board a bus in Beit Shemesh through the front door was attacked and cursed. I could go on.
Faced with these horror stories, rabbinical response has been slow and mixed. There are of course, the people who got all this moving. Shlomo Rozenstein, a Vizhnitz Hassid and a city council member, has been at this for over eight years. "This is really about positive discrimination, in women's favor," he said recently to Katya Allen of BBC News. "Our religion says there should be no public contact between men and women, and this modesty barrier must not be broken." I'm sure R. Moshe Feinstein would have been surprised to hear this.
Modern Orthodox rabbis have not been in the forefront of this battle, but neither have they been silent. Rabbi Ratzon Arussi, chairman of the chief rabbinate's council on marital affairs and rabbi of Kiryat Ono, said that: "Halakhically speaking, it is preferable for a man to sit next to his wife than to have other women pushing past him to get to the back of the bus. Being with his wife keeps the husband's attention focused. Seating men up front causes additional problems. For instance, pregnant women or women with heavy bags are forced to walk all the way to the back of the bus. It is obvious that the men who initiated the mehadrin line did not think about women or about the halakhic problems created."
Indeed. A woman recently wrote to Rav Yuval Cherlow for a halakhic ruling, saying that she is forced to use the mehadrin lines to get to work, but that she finds it degrading to be told where to sit, and she is also prone to motion sickness at the back of the bus. Should she respect the religious extremism of others and go to the back to her own discomfort? Can she sit in a vacant front seat if there are not seats in the back? And what about elderly and pregnant women? His reply: "there is great importance in keeping the public forum a place that is tsanua, not having immodest advertising signs up, for example." But, Rav Cherlow also writes, "I am against the mehadrin buses. These buses are mehadrin in shaming other people, in dealing with tseni'ut in an immodest fashion." Rav Cherlow goes on to advise the questioner that if she is not doing it to stir up trouble, but for a purpose, such as health, or when there are no seats available elsewhere, "then you can sit wherever you want. And those who change things, they have the lower hand."
Can we not, all of us who care about real tseni'ut, agree that any benefits from a policy of sex segregation on public buses are far outweighed by the hardships and sins that such a policy causes? And can we not agree that the real result of this battle so far has been the transformation of neutral public spaces into sexually charged battlegrounds characterized by the verbal and even physical abuse of women who fail to fall into line with the new rules?
If we complain that the Reform Movement plays fast and loose with Jewish law, what is one to say about those in the Hareidi world who insist on twisting the halakha into the particular shape needed to accommodate their desire for both profit and a very particular and minority view of what constitutes purity in the public sector?
As for me, and the women who filed the petitions against these buses, I will repeat what I told the Jewish Chronicle in February 2007: "The insidious degradation of the faith I was born into, love, and have practiced faithfully all my life by fanatics who pervert its meaning in order to bully women in the name of God is something I cannot, and will not, abide. First and foremost because it is a desecration of God's name; and second, because it is limitless."
Modesty patrol hooligans already roam our Jerusalem streets. Paint and bleach have already been thrown at women by Hareidi "fashion critics"; immodest clothing has been snatched from Meah Shearim homes in house to house searches, and posters screaming "Dress modestly-or else" adorn many public streets. Now there are women being sent to the back of the bus, one more way for Judaism to go backward, turning our future into a past that never was.
I believe the time has come for rabbinical voices to be raised in protest against the treatment of women on these buses. As a Hareidi woman told me recently: "We hate these buses, but we can't say so openly because we don't want to be accused of being immodest. Someone has to speak for us."

1. A recent conversion case

Recently, a Hareidi rabbinical court in Monsey, NY, required that a family (which includes a parent who converted to Judaism) commit to educate their children in a Hareidi school, un-enroll their children in the modern Orthodox school, and leave the community with which they affiliate. The Hareidi rabbinical court did not even contact the modern Orthodox community, school, or rabbinate to fact find regarding the family. The modern Orthodox school feels rejected, dejected, angry, and is in a quandary as how to respond. A suggested response is to disallow and to reject the conversions of the offending rabbinical court

2. What are kosher conversion standards?

The threshold of conversion observance standards and requirements is a dicey issue, both sociologically and halakhically. If the convert, in the presence of a court of three observant laymen, accepts the commandments, i.e., Judaism as a divinely ordained system, that person is Jewish. From this perspective, retaliation against the Monsey rabbinical court by "invalidating" their actions [heftsa] is wrong for several reasons:
•the court has a right to its standards
•vengeance is forbidden by Torah law
•unless it can be determined that the Monsey ultra-Orthodox rabbinical court violated, knowingly and with malice, the statutes of known, settled Oral Torah law, their converts are Jewish and punitive reciprocity cannot be sanctioned.
•We do not issue Jewish religious rulings "from the gut," in response to a slight or as retaliation, when innocent, third parties are unintended victims.

The convert to Judaism stands again at Sinai, re-enacting the Sinai Torah pact, by accepting the Torah as a system. Both Moses b. Amram and R. Moses b. Maimon realized that the Torah/book/document/heftsa was committed to writing just before the former Moses died. The case of the yefat to'ar, the captive war bride who converts after a month, demonstrates this Biblical doctrine. This war bride was given a month to mourn her former life before she converted and became an Israelite wife. Kabbalat ha-Mitsvot does not mean that the candidate agrees to follow every law according to every possible opinion; it means accepting Judaism as a system. In his responsum, Pe'er haDor 132, based upon bBaba Kama 66b, Hilkhot Gezela ve-Aveida 1:5 and 2:2, 6, 8, Maimonides prefers an inadequate conversion in which the formal technical requirements are observed to an intermarriage.

Rabbi Isaac Schmelkes [Bes Yitzkhok, Yoreh Deah 100] rules, against all precedent, that the subsequent non-observance of a convert nullifies a conversion, even after the fact, and disqualifies the Jewishness of that person's progeny, and their marriages, should the convert be a woman. Ironically, the nullification of marriages to solve the aguna problem is rejected by this version of Orthodoxy. To compound the irony, marriage nullification does enjoy some precedent in Talmudic literature and was advocated by two modern Orthodox gedolim, Rabbi Menachem Elon and one of my personal rabbinic heroes, Rabbi Meir S. Feldblum, zatsa"l. In an oral communication, Rabbi Shelomo Risken learnedly and lovingly also called for adopting this approach, of nullifying marriages, to solve the aguna problem.

The difference between these two Orthodoxies, one parochial and one cosmopolitan, is in the orientation to the sacred canon and to the received culture. If marriages are declared to be invalid because conversions are invalidated by invoking R. Schmelkes' reformation of Jewish law, parochial Orthodoxy, like the cosmopolitan Orthodoxy, is willing to nullify marriages and create the taint mamzereut/legal illegitimacy. The two Orthodoxies differ in their agenda. While both Orthodox Judaisms are using radical methods, the ideologies underlying the shared radicalism are themselves radically divergent. Parochial Orthodoxy wants Judaism to be exclusive and will de-authorize the law to attain its ends, while cosmopolitan Orthodoxy seeks to be inclusive, using the letter of Torah law as its welcoming guide, to use Rabbi Daniel Sperber's wise, apt idiom, to make Judaism "user friendly."

3. The Rabbi Amsalem Case

A Sephardic Rabbi and MK Rabbi Hayyim Amsalem (Shas) asked for relaxed conversion standards for men who have served and risked their lives in the Israeli army. This position is strikingly similar to the position of R. Obadia Yosef, Yabi'a 'Omer 8 YD 24, 33-34, who cites and endorses Maimonides' Pe'er ha-Dor, 132, cited above. It strains credulity that R. Schmelkes' reform, that kosher conversions may be retroactively nullified if the candidate proves to be insufficiently observant, has the standing to override Maimonides' ruling. By appealing to zera Yisrael, R. Amsalem's position is grounded in the Maimonidean Pe'er ha-Dor case cited above. If these ethnic but not halakhic Jews are prepared to die for the State of Israel, the lenient precedents suffice to allow them to make the adjustment to live in the State of Israel. Rabbi Amsalem's standards are:

•sanctifying the wine on Shabbat
•fasting on Yom Kippur
•observing the holidays
•keeping a Kosher for Passover home

4. The Hareidi critique of Rabbi Amsalem and its implications

In the "Lithuanian" or so-called "intellectual," non-Hassidic version of Hareidi Judaism's newspaper, Yated Neeman, it is reported that "Rabbis and rabbinical judges expressed their disgust with MK Haim Amsalem's impetuous and blasphemous declaration to apply leniencies when converting goyim from the former Soviet Union who serve in the IDF." Rabbi Nahum Eisenstein, taken to be an expert in conversions who is loyal to the Ashkenazi Hareidi rabbinic elite, claimed that Rabbi Amsalem's remarks were [1] controversial statements, [2] a "publicity stunt" and [3] designed to advance his personal career. Furthermore, "unnamed rabbis and rabbinical judges ... [said] that Amsalem's comments were
•"a mockery of Halakha handed down from generation to generation that conversion necessitates full adherence to an Orthodox lifestyle."
•"Amsalem has caused incalculable damage to the Orthodox position on conversions," said Eisenstein, who helped write the Yated article.
•"He [Rabbi Amsalem] gives the impression that our demand that every convert must accept the yoke of mitzvot is nothing but an unnecessary stringency.
•By saying those things while at the same calling himself rabbi, he is cheapening the rabbinical institution. "He is worse than a Conservative Jew."

From the above comments we learn the following lessons regarding the actual tenets of Hareidi religion:

1. Being controversial is improper. Following this rule, most Orthodox leaders may not take positions unless they are cleared and endorsed. Note well that every biblical hero, from Moses to Daniel, was controversial.
2. It is fitting and appropriate to negatively interpret and then demean the unstated intentions of a political opponent. In Judaism, we must first demonstrate and not proclaim error, and we may not demean ourselves inadvertently by demeaning others intentionally.
3. It is proper to declare that R. Amsalem, who is denied his rabbinic honorific by the editorial, is an implicit unbeliever who modifies God's word, which he does not accept, for personal, pecuniary, careerist motives. In historical Judaism, only God and His designated prophets are endowed with the Spiritus Sanctum/Holy Spirit/Ruah ha-Kodesh whereby one human may divine the inner thoughts of another human
4. When criticizing others who are ideologically challenged, one may do so with anonymity in order to spare oneself accountability, reprisal, or responsibility. According to Shulhan Arukh Hoshen Mishpat 34, one is not religiously suspect unless one violates an explicit norm of the halakhic system, and does so knowing that the act is wrong. Therefore, disagreeing with R. Schmelkes' 19th century innovation is not only not sinful, it would to this reviewers' view be mandatory.
5. God's revealed covenant is defined not as the norm of the canonical Oral and Written Torah library, but as the culture and lifestyle that the right reverend rabbis robustly revere. This position seems to undermine the Sinaitic covenant in three ways:
a. It confuses the "Tradition" of mimetic culture, which is convention, with the "Tradition" that is canon, ending with Rabina and Rab Ashi,
b. It imputes virtual infallibility and divine approval for whatever Jews do. Leviticus 4 and Horayyot 2-3 seem to suggest that God has a more precise benchmark for Jewish normativity.
c. The position taken, what de facto is normative in Hareidi society, is de jure binding on all Israel, echoes the Catholic Israel approach of Solomon Schechter and the "Peoplehood" doctrine of the Reconstructionist founder, Mordecai Kaplan.
6. Since Rabbi Amsalem disagrees with the theologically correct rabbis who are "Orthodox," i.e., in exclusive possession of theologically correct doctrine, he is [a] not Orthodox and [b] may not be accorded the rabbinic honorific, which is reserved for really Orthodox rabbis. Since Rabbi Amsalem is observant of Jewish law, which most but not all Conservative rabbis are not, he is worse, more dangerous, and more threatening than Conservative rabbis, because he frontally challenges the Hareidi claim to political hegemony over the Jewish people.
7. Challenging the Hareidi consensus causes "incalculable damage to the [sic, my emphasis] position" on conversions. The Hareidi position on conversions is not the historical position of Judaism on conversions. Abraham Sherman, the Hareidi ideologue who defamed R. Haim Druckman, conceded as much in a lecture at Mosad Harav Kook. R. Sherman pointed out that there were two opposing views in Jewish thought to converting non-Jews to Judaism. One approach sees conversion as a very positive act that should be encouraged because it brings people closer to the true monotheistic faith. However, R. Sherman argues that for the unity of the Jewish people, all should defer to the Hareidi rabbinic elite. Therefore, by his own words, Judaism's normativity is found not in canonical, normative books [heftsa] accepted by all Israel, but rather by canonical, normative people [gavra] who claim authority over all Israel.
8. Failure to defer to the divinely inspired intuition of canonical people is controversial, dangerous, and ultimately, for parochial Orthodoxy, heretical.

5. What is at stake in this Contentious Conversation?

At stake in this conversation is the nature of Orthodox Judaism and who has the right to speak as an authentic Orthodox Jewish leader. Hareidi Judaism preaches that we must not only avoid slander, motsi shem ra, false negative speech, but we must also avoid lashon ha-ra, negative speech that is true. By regarding opposition as heretical, for stigmatizing ideological opponents as outside the pale of Jewish Orthodoxy, the protection of Jewish law does not accrue to deviant religionists while objections to Hareidi positions on textual and theological grounds is objectionable "bashing," because as R. Sherman declared, all Israel must defer to his elite rabbis so that this elite may confer legitimacy upon them. Thus, in Hareidi Orthodoxy, "Tradition" is not a sacred library or even what our parents practiced; like the Magisterium of the Roman Church the self-selected elite, with inspired intuition, will selectively cite and apply the literary canon of Israel as it alone reads the canon. A philological reading of Judaism is heretical not because it denies God's voice, but because its findings and the readings of sacred texts that philology provides denies any elite the right to explicitly and exclusively appropriate God's voice, to determine, on instrumental grounds, which halakhic rules may be referenced [only high extra-halakhic conversion standards] and which rules may be suppressed [that conversions may not be nullified because of non-observance].

6. What is at stake in this contentious conversation?

According to Jewish law, the binding rules of Judaism are recorded in the Talmud. Post-Talmudic authority is reflected authority, providing windows and insights regarding Israel's covenantal obligation. By conceding that there have historically been two competing orientations to conversion to Judaism, R. Sherman denies the Judaism of the statute ultimate normativity. Rather, God's will is located in the social vision and inspired intuition of his own preferred rabbinic elite. They are empowered to defame dissenters, outlaw alternatives, and to declare without documented demonstration what devoted Jews ought to be doing.

This approach, that treats the thick culture of Hareidi society as if it were the essence of canonical Judaism, actually and ironically approximates the secular religion of Mordecai M. Kaplan, as noted above. For Kaplan, the "Jewish people" define Judaism and not the canonical text sacred library, which for Kaplan carries "a voice but not a veto." For R. Sherman, only the living textual charismatic, saintly person/gavra super rabbi, or godol, is authorized to read, parse, apply the canonical document/heftsa. Although the Torah was given to all Israel, its access is mediated by an unmediated elite. Like the Roman Catholic Magisterium, Hareidi "tradition," the living thick culture of the community as defined by divine right leaders, supersedes the revealed religious canon. Ironically, Hareidi religion appropriates a page from Conservative Judaism's political/theological playbook by affirming, against God's original Torah that is subject to neither addition nor to subtraction, [Deuteronomy 4:2] a doctrine of "continuous legal revelation," that is formally outlawed by the Oral Torah in the Ochnai oven narrative of bBava Metsia 59b.

Slandering a sage is a very serious offense according to Jewish law. Rabbi Joseph B. Soloveitchik was slandered by Nison Wolpin of the currently defunct Agudist Jewish Observer. R. Hillel Goldberg has slandered Rabbi Saul Lieberman; R. Abraham Sherman slandered Rabbi Drukman, and the late R. Elya Svei slandered Rabbi Norman Lamm of Yeshiva University. The unwillingness-or absence of nerve-of cosmopolitan Orthodoxy's rabbinate to defend the dignity of its own teachers brings the neutral observer as well as the parochial Orthodox to conclude that cosmopolitan Orthodoxy has more respect-or fear- of Hareidi intimidation than it own sense of what God expects of them. When commenting to a cosmopolitan/modern Orthodox dayyan, or rabbinical judge, that exempting yeshiva young men and Hareidi Orthodox women from Israeli military service, is improper-even though Rabbi Solomon Lorincz reported that his own mentor, Rabbi Abraham Karelitz, ruled that advocating a conscription of Hareidi youth renders the offending culprit a disqualified witness, the Jewish legal designation of an evil person, I was warned by this profoundly learned, exquisitely fine, and socially astute sage, "don't go there," i.e., avoid this issue like the blow of the plague. But the Talmud, Sota 44b, requires a military conscription during a defensive war, and without the breastplate oracle, the Urim and Tumim and the Supreme Court of halakhic Israel, sadly in recess until the fallen Davidic Temple is restored, all wars in Israel are defensive so that the situation demands universal conscription of yeshiva men and Orthodox women. Unless there is a renewed Supreme Court convened to override the Talmud, authentically Orthodox Jews who believe that God authored the Torah will defer to the sages of the Talmud and not to Rabbi Karelitz. Hareidi leaders have a right to disagree with Rabbis Soloveitchik, Lieberman, Drukman and Lamm if they wish, but they must do so in refined, textually argued, respectful demonstration of what they believe God's recorded voice is saying.

7. What should be done in light of current realities?

The Rabbinical Council of America must accept the conversions of all duly vetted and accepted members. It should defend the validity of all conversions performed by its members, and not buckle under to Hareidi pressures. Moreover, as a Zionist as well as Orthodox body, it must affirm the obligation of military service for any rabbi in Israel who earns a state rabbinic salary. Hareidi rabbis who refuse to serve in the Israel Defense Forces should not be eligible for employment by the State of Israel.

This article began with a problem created by a Hareidi bet din in Monsey. The question is: how is the Modern Orthodox community to respond? We must make clear that any Bet Din that knowingly violates Jewish law by insulting sages, by forbidding required military service in Israel, and demanding that its rabbis require deference and privilege-such a Bet Din does not meet the standard for piety and probity. The rulings of such a Bet Din should be disregarded by our community. If particular individuals choose to follow their rulings, that is their business. But we should encourage people to bring their issues to proper Modern Orthodox rabbinic leadership and proper batei din that adhere faithfully to our Torah texts and traditions.