Unaccepted Proposals to Solve the Aguna Problem - Part V
by Rabbi Howard Jachter

Introduction

Last week we began discussing why virtually the entire Orthodox Rabbinate has rejected the Morgenstern-Rackman Court. We reviewed the halachic literature concerning a case where a husband found a severe defect in his wife. We demonstrated that the halacha provides for precious few, if any, cases in which a marriage may be considered invalid on this basis. In this essay, we will discuss the halachic approach to cases where a woman finds a severe defect in her husband. We will review the views of the Acharonim on this matter with a special focus on Rav Moshe Feinstein's extraordinary lenient ruling.

Acharonim- Aruch Hashulchan and Chazon Ish

The Gemara, Rishonim, and Shulchan Aruch discuss only the case of a man who finds a defect in his new wife. The case of a woman who finds a severe defect in her husband in case when she did not make any explicit conditions during the wedding ceremony is not explicitly adressed. We do, however, find an extended discussion of this issue in the Acharonim. The Otzar Ha'Poskim (chapter 39) presents a detailed review of the voluminous halachic debate on this issue.

We will begin by presenting the views of the Aruch Hashulchan (E.H.44:10) and the Chazon Ish (E.H.69:23). These two major authorities rule that even if a woman discovered an extremely severe flaw in her new husband such as that his male organs are missing or damaged the marriage is nevertheless valid. They base this ruling on the Gemara's (Yevamot 118b and Baba Kama 111a) celebrated (but frequently misunderstood) phrase that "Nicha Lah B'kal D'hov," a woman will settle for any companion. The Gemara cites Resh Lakish's famous phrase "Tav L'meitav Tan Du Mil'meitav Armelo," a woman feels that it is better to be together with another (even with a "very low quality" partner) than to be alone.

This Gemara does not mean that all women will settle for marginal a husband. Rather, explains Rav Moshe, (see Igrot Moshe E.H.4:113) since some women have this attitude, we must be concerned that perhaps this particular wife is one of those minority of women who would accept any man as a husband. Thus as long as she didn't expressly stipulate at the wedding ceremony that she marries this man on condition that he has no defects, the marriage is valid. One cannot assume that there is an implicit condition that she would not marry someone with a severe defect. Thus the marriage is not invalidated if a women finds an extremely severe defect in the husband. It appears from the Aruch Hashulchan and Chazon Ish that the woman requires a Get on a Torah level.

A Middle Opinion - Rav Yitzchak Elchanan, the Beit Halevi, and Rav Chaim Ozer Grodzinski

Some Poskim, however, take a more moderate approach in this matter. Both Rav Yitzchak Elchanan Spektor (Be'er Yitzchak 4:3) and the Beit Halevi (3:3) rule that if a woman discovers a severe defect in her husband after the wedding, such as impotence, she only requires a Get on a rabbinic level. Thus, if other lenient considerations exist, such as if a witness to the wedding ceremony was unqualified to serve as a witness or if the husband is missing and possibly may be dead, one may rule leniently and permit the woman to remarry. An example of such a lenient ruling is found in Rav Chaim Ozer Grodzinki's Teshuvot Acheizer I:27). It should be emphasized that Rav Chaim Ozer had other reasons to issue a lenient ruling besides the "Kiddushei Ta'ut" factor. It seems clear that he would not have permitted the woman to remarry solely on the basis of "Kiddushei Ta'ut".

These authorities believe that one should not interpret the phrase "Nicha La B'chol She'hoo" literally. Rather, there are some men who are actually considered to be less than "Kol She'hoo" (minimal). Thus an impotent man is less than a minimal husband and it is obvious that she never would have married such a man, even if she didn't state this explicitly at the wedding ceremony.

Nevertheless, both the Beit Halevi and Rav Yitzchak Elchanan believe that if no other lenient consideration exists she does require a Get on a rabbinic level. The Beit Halevi writes that "there is absolutely no room to say that she does not need a get, for even if a man finds a severe defect in a woman, a get is rabbinically required." Similarly, Rav Yitzchak Elchanan argues that Chazal were concerned with the highly unlikely possibility that perhaps the woman would have tolerated marrying an impotent man. He cites as a precedent Chazal's refusal to permit a woman to remarry if her husband drowned in an "unending river" ("Mayim Sh'ein Lahem Sof"), even though it is extremely unlikely that her husband is still alive.

Rav Moshe Feinstein's Extraordinary Ruling

Rav Moshe Feinstein, (Igrot Moshe E.H.1:79) however, argues that if a woman discovers a severe defect in her husband she does not require a Get. Rav Moshe writes that one should make all efforts to obtain a Get, but a lenient ruling may be given if all efforts to procure a Get have failed. He reasons that some defects are so severe that it is without a doubt that no woman would have married this man. Rav Moshe takes issue with Rav Yitzchak Elchanan and argues that no woman would marry an impotent man. Thus, just as a man who marries a women who is an "Ailoneet" does not require a Get, so too a woman who married a man who is impotent does not require a Get. Rav Moshe takes this exceedingly bold argument ( it is bold because, as Rav Yosef Henkin notes in his Peirushei Ibra p.43, it lacks any textual basis in the classical sources) one even bolder step further. He argues that even Rabbeinu Tam (see last week's article) who rules that in a case where a man discovers that his wife an "Ailoneet" a Get is needed to terminate the marriage, would agree that if a woman discovers a preexisting severe defect in the husband she does not require a Get to remarry. This is because, argues Rav Moshe (with no textual support for this argument), only a man would possibly agree to marry a woman with a severe defect, because he has a relatively easy halachic exit from the marriage. However, it is obvious to all, argues Rav Moshe, that no woman would marry a man with a severe defect. She would never take a risk that perhaps she would tolerate the man's problem, because she knows that in the likely event that she will be dissatisfied, she has no easy halachic mechanism to escape the marriage.

Rav Moshe applied this ruling to a case where a man concealed that he was institutionalized prior to the marriage (E.H.1:80), concealed that he was a practicing homosexual prior to the marriage (E.H.4:113) and concealed that he converted to another religion (E.H.4:83). It should be noted that in the last case, Rav Moshe did not apply his leniency if the woman was not observant of Torah law. It must be clear beyond the shadow of a doubt that the woman never would have married such a man. It also should be noted that in all of these cases the woman left the man as soon as they discovered the severe defect. Rabbi Rackman (in a letter sent to the membership of the Rabbinical Council of America) errs in aserting that in the apostasy case the husband converted after the marriage.

Interestingly, a prominent psychiatrist told this author that Rav Moshe may not have ruled this way today because the availability of psychiatric drugs allows for many psychiatric illnesses to be treated. Moreover, impotence can be treated and cured in most cases today and some homosexuals with the help of psychotherapy can lead a healthy married life. Moreover, Rav Moshe did not rely on the woman's testimony alone to verify the husband's impotence and mental illness. Rather, the rabbis involved in the case were able to examine the medical records of the husbands and the doctors even testified that they unsuccessfully tried to cure the husband's impotence. In today's society it is highly unlikely that such information would be forthcoming from medical official. Rabbi Rackman also reports (in the afforementioned letter to the RCA membership) that Rav Moshe annuled a marriage in a case in which ahusband murdered a gas station attendant after the couple's wedding. This "ruling" does not appear in any of Rav Moshe's writings and Rav Moshe's famoly and students claim never to have heard of such a ruling.

Rabbi Rackman's Error

Rav Moshe in these responsa certainly stretched the halacha to its outer limits and virtually no other halachic authorities have adopted his position (although a great rabbi may choose to issue a ruling in accordance with Rav Moshe's views in case of emergency when it is absolutely impossible to procure a Get from the husband).

Rabbi Rackman, though, erroneously seeks to apply Rav Moshe's ruling ever further. Rabbi Rackman argues that if a husband was abusive to his wifeduring the course of the marriage, this indicates that at the time of the wedding the husband "had the seeds" of an "abuser personality" and since no woman would want to marry an abuser the marriage is, therefore, nullified on the grounds of "Kiddushei Ta'ut".

This argument has been rejected for quite a number of reasons:

1) The Aruch Hashulchan's point that if the marriage lasted for some time one cannot claim "Kiddushei Ta'ut", because the fact that the marriage lasted so long, creates the presumption that the parties accepted each others faults.

2) "Kiddushei Ta'ut" is a valid claim only in the complaints were lodged against the husband immediately after his defects were revealed. If a woman tolerated an abusive relationship with a man one cannot claim "Kiddushei Ta'ut" (although the rabbinic and lay community must do everything in its power to help an abused spouse).

3) Just because one has an "abuser personality," this does not guarantee he will actually abuse his wife. Although some voices in the field of psychology are believers in determinism, the Rambam (Hilchot Teshuva 5:1) writes that the belief in free will is a core belief in the halachic world view. Thus, it is not clear that no woman would even agree to marry a man with the potential to be an abusive husband. This is especially so in light of the psychotherapies such as rational behavior emotive therapy which empowers a person to control their anger. The Beit Din of America (RCA-OU) summed up this argument well: "potential psychological tendencies do not create 'Kiddushei Ta'ut' since they may remain undeveloped."

4) One could easily argue that everyone has the potential to have an abusive personality. Indeed, the Rambam (Hilchot Teshuva 5:1) writes that everyone has the potential to be as wicked as Yeravam son of Nevat. Thus, part of entering into marriage involves taking a risk that the husband may choose to exercise his Yetzer Hara instead of his Yetzer Hatov. Thus, improper behavior by a party in a marriage cannot be assumed to have been present earlier in the form of "seeds." Moreover, in every investment the business has the potential to fail. Just as in business one takes risks, so too in marriage one takes risks (see Tosafot, Baba Kama 110a s.v. D'adata). When an investment goes sour one cannot say that had he known it would go sour he would never have made the investment. When a marriage fails, one cannot say that if the marriage fails, it was not valid in the first place. Indeed, when the Shulchan Aruch (E.H. 154:3) discusses the propriety of coercing a physically abusive husband to give a Get, the option of declaring the marriage null and void is not mentioned.

5) It is often difficult to formally produce incontrovertible evidence that someone has physically abused his spouse (see Rama, E.H. 154:3). In Rav Moshe's responsa, official medical records proved the woman's claim. On the other hand, the "Jerusalem Report" (August 9, 1998) related that Rabbi Moshe Morgenstern issues his rulings merely on the woman's word. This is undoubtedly unacceptable (see Teshuvot Nodah B'Yehudah E.H. 54 cited in Pitchei Teshuvah E.H. 157:9).

6) In August 1998 the Rabbinical Council of America, circulated a document signed by Rabbi Moshe Morgenstern. This document stated that a particular woman was permitted to remarry on the basis of a "Get" granted by a court on behalf of the recalcitrant husband. The document contained numerous errors in the basic procedures and laws of Gittin (such as the spelling of names), and appears to indicate Rabbi Morgenstern's lack of familiarity with the vital, practical intricacies of the laws of Gittin. The Shulchan Aruch (E.H. 154) Seder Ha-Get introduction rules that one should treat the Gittin of such an individual as invalid.

7) According to press reports, the Rackman-Morgenstern court also grants a Get on behalf of recalcitrant husbands. This ceremony was deemed worthless in the eyes of Halacha by Rav Yechiel Yaakov Weinberg (Seridei Aish III:25) and Rav Herzog (Teshuvot Heichal Yitzchak E.H. 2:64:3-4). A Get is not valid unless the husband orders the scribe to write the Get and witnesses to sign the Get (see Mishna that appears on Gittin 71b). It is worthwhile to note that Rabbi Rackman frequently refers to Rabbis Herzog and Weinberg as primary Halachic authorities for the modern Orthodox community.

Conclusion

We have presented merely a brief summary of why the Orthodox rabbinate has rejected the Rackman-Morgenstern court. We hope that we have made it clear for our readers why Rav Soloveitchik publicly compared the Orthodox rabbinate contemplating the adoption of the Rackman proposal to the Republican party contemplating adopting Communism as its party platform.

A much lengthier treatment appears in the current issue of Tradition in an excellent artile authored by Rabbi J. David Bleich of Yeshiva University. Also, Rabbi Bleich succesfully rebutts other arguments made by Rabbi Rackman such as the argument thta Kiddushin does not exist today. According to Rabbi Rackman's argument all Jewish ouples must divorce because none of today's marriages are halachically valid. In response, Rabbi Bleich explains at length the fundamental mechanism of how Kiddushin works and how Rabbi Rackman errs on his understanding of the nature of Kiddushin.

Let us hope that the women "freed" by the Rackman-Morgenstern court will not choose to have children until they receive a valid Get from their husbands. Virtually the entire Orthodox rabbinate will consider the children of these women to be "Mamzeirim."

A Call to Action

Both the rabbinic and lay community must unite to fight the tragedy of Agunot and the danger of the Rackman-Morgenstern court. We must convince Agunot to avoid this court and to help them receive a univesally accepted Get. On the other hand, we must do all we can to reduce the incidence of Igun. The perscription for greatly reducing incidence of Igun is universal usage of a Halachically acceptable prenuptial, severe social sanctions against recalcitrant spouses, activist Batei Din, and enactments of Halachically acceptable Get laws in every jurisdiction.