From My Brother's Blog daattorah.blogspot.com - GET Law punishing husbands for not giving their wives a GET is unconstitional

Friday, January 20, 2017

Masri vs Masri - New York court finds Get Law unconstitutional

In view of the foregoing, this court holds that in the circumstances presented here, increasing the amount or the duration of Defendant's post-divorce spousal maintenance obligation pursuant to DRL §236B(6)(o) by reason of his refusal to give Plaintiff a Jewish religious divorce or "Get" would violate the First and Fourteenth Amendments to the United States Constitution. There is no evidence that the Defendant has withheld a Get to extract concessions from Plaintiff in matrimonial litigation or for other wrongful purposes. The religious and social consequences of which Plaintiff complains flow not from any impropriety in Defendant's withholding a "Get", but from religious beliefs to which Plaintiff no less than Defendant subscribes. To apply coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce Defendant to perform a religious act would plainly interfere with the free exercise of his (and her) religion and violate the First Amendment. The court accordingly declines Plaintiff's invitation to apply DRL §236B(6)(o) in determining Defendant's maintenance obligation.

http://law.justia.com/cases/new-york/other-courts/2017/2017-ny-slip-op-27007.html

In view of the foregoing, this court holds that in the circumstances presented here, increasing the amount or the duration of Defendant's post-divorce spousal maintenance obligation pursuant to DRL §236B(6)(o) by reason of his refusal to give Plaintiff a Jewish religious divorce or "Get" would violate the First and Fourteenth Amendments to the United States Constitution. There is no evidence that the Defendant has withheld a Get to extract concessions from Plaintiff in matrimonial litigation or for other wrongful purposes. The religious and social consequences of which Plaintiff complains flow not from any impropriety in Defendant's withholding a "Get", but from religious beliefs to which Plaintiff no less than Defendant subscribes. To apply coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce Defendant to perform a religious act would plainly interfere with the free exercise of his (and her) religion and violate the First Amendment. The court accordingly declines Plaintiff's invitation to apply DRL §236B(6)(o) in determining Defendant's maintenance obligation.

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It was of the view that "the relief [the wife] seeks from this court so obviously runs afoul of the threshold tests of the Free Exercise Clause that the court need never reach the delicate balancing normally required in such cases." Id., at 534. It wrote:

The court is not unsympathetic to [the wife's] desire to have [the husband's] cooperation in the obtaining of a "get". She, too, is sincere in her religious beliefs. Her religion, at least in terms of divorce, does not profess gender equality. But does that mean that she can obtain the aid of this court of equity to alter this doctrine of her faith? ....

Id., at 535. After extended analysis, the court answered:

It may seem "unfair" that [the husband] may ultimately refuse to provide a "get". But the unfairness comes from [the wife's] own sincerely-held religious beliefs. When she entered into the "ketubah" she agreed to be obligated to the laws of Moses and Israel. Those laws apparently include the tenet that if [the husband] does not provide her with a "get" she must remain an "agunah". That was [the wife's] choice and one which can hardly be remedied by this court. This court has no authority — were it willing — to choose for these parties which aspects of their religion may be embraced and which must be rejected. Those who founded this Nation knew too well the tyranny of religious persecution and the need for religious freedom. To engage even in "well-intentioned' resolution of a religious dispute requires the making of a choice which accommodates one view and suppresses another. If that is permitted, it readily follows that less "well-intentioned" choices may be made in the future . . . .

The tenets of [the wife's] religion would be debased by this court's crafting of a short-cut or loophole through the religious doctrines she adheres to; and the dignity and integrity of the court and its processes would be irreparably injured by such misuse...

Id., at 542-543.

It is clear from the legislative history that it was precisely this purported "unfairness" of a Jewish husband's refusal to provide a Get that drove the enactment of the DRL §253 requirement of removal of barriers to remarriage:

....Although the statute is phrased in ostensibly neutral language, its avowed purpose is to curb what has been described as the withholding of Jewish religious divorces, despite the entry of civil divorce judgments, by spouses acting out of vindictiveness or applying economic coercion. See Governor's Memorandum of Approval, McKinney's 1983 Session Laws of New York, pp. 2818, 2819. The statute seeks to provide a remedy for the "tragically unfair" situation presented where a Jewish husband refuses to sign [*6]religious documents needed for a religious divorce. Id.

Though this is the purpose of the statute, the statute makes no express reference to Jewish religious divorces or Jewish religious tribunals. The absence of references to Jewish religious practices was hardly unintentional. The statute represents an obvious encroach-ment by the civil authorities into religious matters, particularly with respect to perceived unfairness in the religious divorce doctrines of one particular religion. In an attempt to skirt some of the difficult constitutional questions raised in the context of the relationship between church and state, the drafters of the statute wrote in neutral language and avoided any express singling out of Jewish practices. However, even approached with linguistic backhand, the contention has been raised that the entire statute is unconstitutional. The existence of constitutional questions was noted by the Governor when the original legislation was presented for signature. However, he was determined to sign the legislation because of the absence of "impelling precedent" and confidence in the courts to resolve the constitutional questions. See Governor's Memorandum of Approval, McKinney's 1983 Session Laws of New York, pp. 2818, 2819.

McKinney's Cons. Laws of New York Annotated, DRL §253, Practice Commentaries (Scheinkman) C253:1 (2016).

Noting the potential constitutional infirmity of DRL §253 in terms directly applicable to Plaintiff's request that maintenance be so calibrated per DRL §236B(6)(o) as to apply financial pressure on Defendant to induce him to provide a Jewish religious divorce, the Hon. Alan D. Scheinkman wrote:

DRL §253 is really designed to induce or compel Jewish spouses, especially men, to "voluntarily" accede to religious divorces or else be precluded from obtaining a civil divorce decree. Viewed as such, it is questionable whether the statute can withstand constitutional challenge.

It cannot be doubted that marriage is a personal relation and the state may fix the rights, duties, and obligations which arise out of the relationship, including the terms on which the relationship may be terminated. Maynard v. Hill, 125 U.S. 190...(1888). The state may allow civil divorce, even though one spouse object to the decree on the basis of religious conviction and even though a religious divorce cannot be or has not been obtained. See Williams v. Williams, 543 P.2d 1401 (Okla. Sup. Ct. 1976), appeal dismissed, cert. denied ...426 U.S. 901.... Religious practices, even those relating to religious marriage practice, may be regulated, if offensive to overriding public policy. See Reynolds v. United States, 8 Otto 145, 98 U.S. 145...(1878)(criminal prosecution for bigamy).[FN4]

This statute does not purport to prohibit a religious practice on public policy grounds. Instead, it is intended to coerce parties to seek religious relief on pain of being deprived of civil relief. While it may perhaps be permissible for secular courts to compel a party to perform a contractual obligation, though imposed in a religious writing (as allowed by the Avitzur decision), it seems doubtful that a civil statute can compel, by mandating the withholding of relief, a party to a civil action to undertake religious proceedings or submit [*7]to religious authorities and practices. The statute may be susceptible to the conclusion that it interferes with the free practice of religion and transgresses the separation of church and state.

McKinney's Cons. Laws of New York Annotated, DRL §253, Practice Commentaries (Scheinkman) C253:1 (2016) (emphasis added).

In view of the foregoing, this court holds that in the circumstances presented here, increasing the amount or the duration of Defendant's post-divorce spousal maintenance obligation pursuant to DRL §236B(6)(o) by reason of his refusal to give Plaintiff a Jewish religious divorce or "Get" would violate the First and Fourteenth Amendments to the United States Constitution. There is no evidence that the Defendant has withheld a Get to extract concessions from Plaintiff in matrimonial litigation or for other wrongful purposes. The religious and social consequences of which Plaintiff complains flow not from any impropriety in Defendant's withholding a "Get", but from religious beliefs to which Plaintiff no less than Defendant subscribes. To apply coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce Defendant to perform a religious act would plainly interfere with the free exercise of his (and her) religion and violate the First Amendment. The court accordingly declines Plaintiff's invitation to apply DRL §236B(6)(o) in determining Defendant's maintenance obligation.

5. Findings

Defendant is a young, well educated man in good health with an earning capacity far in excess of the very meager income reflected on his 2015 tax return. Moreover, evidence of record indicates that his earnings and financial resources exceed the amounts stated on his tax return and net worth statement, and, in addition, that Defendant has willfully failed to comply with his financial disclosure obligations in this case. In view of the foregoing, the court imputes to Defendant gross income in the amount of $75,000.00 per annum. Applying the statutory guideline for post-divorce spousal maintenance to the parties' income as determined hereinabove, spousal maintenance owing from Defendant to Plaintiff would be $9,696.00 per annum (or $808.00 per month, $186.46 per week) for a minium of 2.1 years and a maximum of 4.2 years.

In accordance with the post-divorce maintenance guidelines, the court fixes Defendant's maintenance obligation at $9,696.00 per annum ($808.00 per month, $186.46 per week), taxable to Plaintiff and tax-deductible by Defendant, for a period of four (4) years, and finds that this guideline obligation is neither unjust nor inappropriate in light of the factors set forth in DRL §236B(6)(e)(1).

Child Support

At this time, Plaintiff is the custodial parent. Unless and until Family Court alters her status as the custodial parent, Defendant's child support obligation is $843.83 per month (or $194.73 per week), calculated as follows: [...]

The foregoing constitutes the decision of the court. Plaintiff's counsel is directed to submit revised Findings of Fact and Conclusions of Law, and a revised Judgment of Divorce, consistent with this Decision, for settlement on ten (10) days notice to Defendant.

Serving Gedolei HaDor Reb Aharon Kotler, Reb Moshe Feinstein, Rav Yosef Shalom Elyashev and others

Contents

Lakewood Yeshiva after Reb Aharon Dies 1

Talking to Reb Moshe Feinstein about Difficult Medical Questions 4

The Strassberger Rov and a Serious Halacha Question 5

The following is from Rabbi Dovid E. Eidensohn. We have already published on our blog http://torahhalacha.blogspot.com several dozen pages about my experience with Gedolim Reb Aharon Kotler, Reb Moshe Feinstein, Reb Yosef Shalom Elyashev and others. We are now developing an entire section with material from Gedolei HaDor in Israel and America that shows the crisis of invalid Gittin, invalid conversions, and other things especially now that marriage and family is falling apart. It is our hope to supply happy answers to the dreadful crisis of broken children and families.

Lakewood Yeshiva after Reb Aharon Dies

Reb Aharon Kotler died in 1962. President Kennedy was assassinated in 1963. The new president was Lyndon Johnson, whose great hope was to undo the grip of poverty on the poor. From President Johnson came federal grants for people who needed money who could qualify for the programs, and sometimes merit large sums of money.

Who was poorer than somebody who learned in Kollel? Thus, here is one factor for the new money in Lakewood. The Yeshiva itself applied for the now generous Federal government’s grants for the poor, and so did individuals.

At the time, there was such corruption, including front page articles about prominent people, that I determined to stay away from every dollar and every penny. I asked Reb Yaacov Kaminetsky about this. He seemed pleased that somebody would ask such a question, but could not rule that we should not take money from the government. He asked if it was not true that people constantly benefit from the government with all kinds of Federal expenditures including roads, lights, etc. I heard from somebody else who asked this of the Satmar Rov Rebbe Yoel zt”l, and he got basically the same response. He did not forbid taking federal money. Whether it was better to subsist on different money was not an issue he publicly ruled on.

I made up my mind after seeing what I saw of the problems with such free money, that I would refuse to apply for it. I know that HaShem granted me wonderful children, heads of institutions and Talmidei Chachomim. That is wealth, and that kind of wealth doesn’t come from Federal largesse, but the opposite, from straight earned money.

At any rate, the free money surely helped Lakewood financially. But there was another factor that contributed to a rapidly growing student body in the Yeshiva. America was involved in a terrible war with North Viet Nam. Eventually, America just left and eventually Communists took control. There was a draft during the Vietnam war, and college students were obligated to go fight in it. Eventually, many students rebelled at the draft and the idea that their college program would be interrupted by a war that nobody cared about. Timothy Leary was a prominent Harvard professor who taught students to take dangerous mind altering drugs so that they would sense new things. Modesty and decency were openly flouted by the youth. Obviously, Orthodox children could not go to such colleges which had become sewers. Now more and more people looked with new understanding at the prospect of sending a child to Lakewood.

Now, a good Lakewood student was a valuable asset. This translated into cold cash. Meaning, a boy had a price. A boy with a good name in learning could anticipate a girl whose parents would pay him a lot just to marry their daughter instead of sending her to college and the heinous horrors there.

Thus was born the idea that instead of the old Lakewood system where people trusted in miracles not to collapse from starvation, now money flowed into the Yeshiva from President Johnson and from parents anxious for a learning boy.

I had talked to Reb Aharon in learning regularly. And I needed a Gadol to talk to. Now Reb Aharon was in another world. And, in a sense, the Yeshiva was in a different world. The Lakewood in the last year of Reb Aharon’s life was a new Lakewood, especially when a group of geniuses came to the Yeshiva. Then Reb Aharon realized that he had succeeded. But the new Lakewood, now something that attracted more and more people for various reasons, and more and more money for various reasons, was not for me. I was at a crossroads, and I had nobody to talk to about it.

I told HaShem I was putting it on Him. I am leaving Lakewood. I am going home to Cinnamson, New Jersey, which is basically nowhere, and the worst place to be if I want to get married. If HaShem gets me married properly in Cinnamson, NJ, it will obviously be from HaShem. And, if I won’t have a wife, my question will be answered in a bitter but strong way.

As time went on, I did get married. I remember the day we held open house for the family and close friends. I realized that people were coming not to honor me or my basherteh, but out of plain curiosity. Who in the world would marry somebody like me, who left Yeshiva and stayed for years at home where? in Cinnaminson, NJ. At least two people saw my wife-to-be and burst out with “Miracle!” Okay, so HaShem got the job!

One day a gentile friend born in Holland who once killed a Nazi asked me where my wife was from. My wife drove me to work that day and this fellow and some others in his company were very impressed. But they couldn’t figure out where my wife was born and were curious to find out. I told him that my wife was from Poland which made him very happy. Well, don’t Europeans have the right to think that attractive women come from Europe?

Once, I was in New York with my wife and children, in the house of my wife’s sister and her children. There was a terrible milk strike. My wife and her sister both had young babies who needed milk. But there was no way to get one drop of milk anywhere. I declared that I was going out to look for milk. Some people thought I was nuts. I walked one block away from where I was staying and a milk truck drove right next to me and stopped. I asked him if I could have some milk. He said yes. I said I wanted a crate of milk. He gave it to me. I walked into the house with the crate of milk and people were astounded. Well, if you work for HaShem that is what happens.

I am now an old man of 74. I spent my life chasing great rabbis and living in terror as I told them my questions or understandings. After Reb Aharon Kotler I chased Rav Moshe Feinstein for some years. I was terrified but I kept coming back. Finally, I wrote a book and asked him for an approbation. He wrote, “I know Rabbi Eidensohn for many years as one who delves very deeply into complex halalacha questions to clarify them.” That is what happens when you spend time outside a rocket ship far from the moon and you know that if you make one false move you will sale off into outer space.

I also have a very strong semicha from Rav Yosef Shalom Elyashev, the senior Posek in Israel. I had a Beth Din under Rav Elyashev that dealt with Russian Gittin, rather, baalei teshuva who used to be either Communists or lost Jews. I went to Israel and met with Rav Elyashev and he didn’t want to talk about Russian Jews. He wanted to talk about American rabbis who convinced New York State to force men to divorce their wives even though the men did not want to give a GET. In Torah law a GET given by the husband because of pressure is usually invalid and the remarriage of the wife to another man produces babies who are usually mamzerim.

Recall that at age 17 I began talking to Reb Aharon Kotler as much as I could. It was very frightening, but I came back for more even though Reb Aharon was very honest with what he thought of my Torah thoughts. Eventually I understood how to present my Torah to Reb Aharon so that he did not blow me away, which was quite a feat. Later on, I spent a lot of time talking to Reb Moshe Feinstein. That was also very frightening, but I kept coming back, and one day I got a very warm approbation that I quote above. Reb Moshe knew how hard it was for me and how scared I was and that figured into the semicha he gave me with his approbation.

By the time I got to Reb Elyashev I had gone through Reb Aharon and Reb Moshe and now I was not afraid. I asked him some very hard questions which only a Gadol HaDor could answer, and he answered right away. When we were finished, I asked for a semicha from him to be a Rosh Beth Din for Gittin, and I added, I wanted his name in the bargain. He immediately agreed. Of course, that was chutzpah first class or maybe last class, but when you deal with Gedolim at my age and with my knowledge what else is there but brutal chutzpah? At any rate, I told this to my chaverusa on our Beth Din, and he was absolutely furious. Such chutzpah? The Rov never uses his name for anything and he gives it to your Beth Din for Gittin?

Look, all of the Gedolim knew it was pure chutzpah; I knew it was pure Chutspah, so what else can I do when I talk to Gedolei HaDor when I might be happier playing basketball?

Talking to Reb Moshe Feinstein about Difficult Medical Questions

Some years after the above criticism from my chaveruso about how I dealt with Gedolim, he told me that he was asked a very difficult medical question and he and nobody he knew could answer it. Well, that is what happens when you are not a mechutsaff. But I am a mechutsaff, and I had asked Reb Moshe that exact question.

The question was, if a person is very ill, and there is no treatment, and the person is in great pain, do we have to keep the patient alive to suffer or can we let him die, if we don’t contribute in any way to his death? I had been told previously that some authorities rule that a person in pain and dying and there is no cure must be kept alive even if he wants to die. The case was a hospital where a certain Rov was the posek, and a person was dying of a very weak heart. He was in terrible pain and his children wanted him to die to be saved from the terrible pain, but the Posek refused. Each time the sick father died because his heart gave out, the Posek brought him back with electric shocks. The children begged the Posek to let their father die, but he said, no, the Din is that the person must be brought back to stay alive, no matter how terrible the pain is.

I asked that question to Reb Moshe. He immediately fired off exactly how many times he had been asked that question, and how he had answered. He spoke so fast I could not keep up, but I did understand when he said that we don’t have to keep a person alive who is suffering and wants to die. A child in Monsey was in that state, and it is said that Reb Moshe ruled that if the child was suffering and wanted to die there was no obligation to bring him back to suffer, and he can be allowed to die. I heard that somebody had asked Reb Moshe this question and he answered as follows: There is no obligation to keep a sick person alive who has no chance of recovery if he is suffering and wants to die. Yet, let the suffering person should realize that while he lives he can do mitsvose, and when he dies he may need those mitsvose. But if he really suffers and wants to die, he may. (And a person who suffers can say some bad things so maybe it is better to die – that is my comment DE.)

Now, in my career as a mechutsaff I spoke often to the Gaon Rav Shmuel HaLevi Wosner from Israel when he visited in America. I had two open gemoras that Reb Moshe was right, that a person who is suffering may be allowed to die if there is no cure and his pain is intense.¹ See footnote below. One proof is a gemora in Gittin 70A and one is Avoda Zora 12B. The gemoras say that one who will surely die from his illness may be prevented from dying until he says goodbye to his family and settles his estate. He is willing to suffer so that his children will not fight after he dies over the inheritance. If as the Posek mentioned above is right that we must fight to keep a person alive even if he has hideous pain, why does the gemora suggest that one take this or that food or medicine in order to say goodbye to his family? Let it say that he must take this medicine or food in order to live another few minutes, even if he already said goodbye or has no need to say goodbye. I told this to Rav Wosner and he replied, “That is poshut.” I wondered why he said such thing. But then I realized that since Reb Moshe was Gadol HaDor Rav Wosner did not want to say that he agreed with Reb Moshe, as this insults the Gadol HaDor, so he said That’s poshut, meaning, of course the halacha is what Rav Moshe said.

The Strassberger Rov and a Serious Halacha Question

When I trained to deal with difficult halochose, I went to a Rov who paskened halochose. He spoke to people on the phone and I did not hear what the people said to the Rov, but I did hear what the Rov said. One time the Rov had a long and difficult time with somebody and he tried his best to calm things down and finally succeeded. However, he did not pasken the Shaalo. When he hung up the phone finally he told me, “I am not going to pasken that question. Go to the Strassberger Rov who is in Monsey and ask him the question.”

So I went down the block to where the Strassberger Rov was visiting his son-in-law, a Monsey Rov. I was told to come in and sit down until the Strassberger Rov is ready to speak to me. I sat down, and soon the Rov came in. I told him the question and then I told him what I thought was the proper answer. The Rov said nothing. I repeated myself and the Rov said nothing. I tried again, and nothing, so I just sat quietly.

The Rov then spoke and said, “HaRav Eidensohn.” When I heard that I knew I was in big trouble. I knew that after this “HaRav” I was going to be blasted, which is exactly what did happen. After saying “HaRav Eidensohn” and letting it sink in, the Rov continued saying, “A Rov never says from his mouth what you just said.”

I told this to a Monsey posek and he told me the following: A couple went to the Gaon Rav Yaacov Kaminetsky with a hideous problem, similar to the problem the Rov refused to pasken. He spoke to them at length and then they left. They by then knew exactly what the halocho was in their case, but never did Reb Yaacov say one word about the halocho. He spoke in a smart way that they should understand how to proceed, but never told then directly to do this or that. That is what the Strassberger Rov told me. I may have been right that in the case of the Rov the person should do this or that. But since it was an ichy horrendous thing we don’t talk about it. We talk around it and the person gets the message, without being told directly. So I learned something. Fine. But maybe it was learned too late. Because I was sure that by now the Strassberger is fed up with me who says things that a Rov is not supposed to say.

I was waiting for the curtain to come down and then I would leave, but the Strassberger went into the next room, where I could see him clearly, and he first paced here and there, and then he said, “I have a difficult shaalo.” I was stunned. I thought he was going to tell me, “Good night.” Then the Strassberger began telling me his difficult shaalo. It was a real difficult shaalo. Then, as I was spinning with his remark and the fact that he didn’t get me to leave the house, he said, “I have to bring the shaaloh to Reb Moshe, but I don’t know how to reach him.” Now, this was really strange. The Strassberger was in charge of Gittin and family issues in the Haredi Beth Din of Jerusalem of Aidi HaCharedis. He never spoke to Reb Moshe in the years of his paskening family questions? He doesn’t have anyone to ask where Reb Moshe lives when his son-in-law is a Rov and lives in this very building? Part of me was really confused, but the part of me that was a mechutsoff, just wanting a piece of the action, plowed ahead. I announced, “I know Reb Moshe and I will take the Rov’s shaaloh to his house tomorrow.” The deal was done.

The next day bright and early I was running up the steps of the apartment house where Reb Moshe lived. Suddenly, somebody grabbed me and asked me where I was going. I replied that I wanted to go to Reb Moshe. He told me that Reb Moshe wasn’t feeling well and nobody is allowed to go to his apartment. I replied that I had a letter to Reb Moshe from Aido HaCharedis. The gentleman immediately released me and let me go to Reb Moshe’s apartment. I gave in the letter and left. I called later and asked when there would be a response to the letter. I was told the response would be soon. I was told that Reb Moshe felt that the ruling on the shaaloh was that it was permitted. But I never received written proof of this, only daily oral statements that Reb Moshe permits it.

Weeks or months of calling didn’t improve things. The time came when I got a letter from my rebbe in this world and the next, the Kabbala genius Reb Shmuel Toledano zt”l. He told me that if I did not come to visit him he would stop writing to me. I got this letter on Motsei Shabbos and I was terrified. I ran to this and that Rov but nobody was home. I came home, and had no idea what to do. The phone rang. It was my sister who had just married. She told me that she won a ticket to Israel but was going to return it, because one person of a couple who just married doesn’t leave the other spouse and go to Israel. I told her to give me the ticket, and I had a ticket. I had a few dollars from a Tephilin campaign that I made, because I was studying Safruce, so I went to see my rebbe. But I also told Reb Moshe that I would be in Israel from this date to that date, in case he wanted to send the answer to the question of the Strassberger Rov.

I stayed by him a few days, and on Friday I went to see the Strassberger Rov. He told me that I would be by him for Shabbos, but he told me that I will go to the general Mikva and he goes to the rabbis Mikva, so he would be back before I would. So it was. I got back to his house and he was reading a letter. It was the letter from Reb Moshe. For some reason, Reb Moshe did not want to mail the letter to me, but did want to mail it to the Strassberger.

The Strassberger showed me the letter and then asked me, “Did you speak nicely to Reb Moshe?” I almost fell over. What kind of question was that? Later, after I had studied the letter, I realized what had happened, why the letter was never mailed to me. And why the Strassberger asked me if I had spoken nicely to Reb Moshe. I will soon explain. But to continue, the Strassberger then told me that although his rabbis disagreed with Reb Moshe, and did not want to recognize the boy in question as a bona fide Jew, but rather as one with serious questions about his Yichuse, since Reb Moshe had said that what his rabbis wanted to do with the boy was not wrong, they would do that. But there was still some kind of a halacha question even doing what his rabbis wanted to do with the boy. So he told me to take the letter from Reb Moshe to the senior rabbi in Israel, Rav Shlomo Zalman Aurebach, and ask him the halacha question.

Before I continue, let me explain why Reb Moshe never mailed the letter to me, but simply ruled that the boy was permitted to marry a Jewish girl. To explain, I have to explain my relationship with a very senior Posek, the Klozenberger Dayan in Williansburg, Rav Fischel Hershkowitz. He was my rebbe for some years. I used to travel from Monsey to Williamsburg once a week, with a list of questions for what I invented answers, as part of my training in paskening halocho. Of course, I told him about the boy who had gone to the Strassberger for permission to marry a Jewish girl, and was refused. This caused the Strassberger to refer the issue to the great rabbis of Israel, especially Rav Shlomo Zalman Aurebach, who emphatically refused to accept the boy as a definite Jew, but rather feared that he was not.

The issue is that the boy came I believe from India, from a group of people who at one time were probably regular Jews, but as the centuries wound down, and the group had no real rabbis, gentiles mixed into the group. If so, there was now a fear that the boy was a mamzer, because maybe somewhere and sometime in the centuries in India a parent of his going back some generations may have had relations with somebody who would make him a mamzer. The Strassberger and the great Israeli rabbis feared that he was invalid to marry a Jewish girl, because he may be a mamzer or a doubtful mamzer, but Reb Moshe permitted him.

Of course I told the argument to Reb Fischel Hershkowitz, and he replied, “Such a problem if a boy is a mamzer can only be ruled on by Reb Moshe.” He did not mean that the Israeli rabbis were not capable of ruling on it. He meant that since he heard exactly what the Israeli rabbis were planning to do, he realized that the boy would never get married with their leniences. Thus, the only hope for the boy to marry is to go to Reb Moshe.

To explain: The Israeli rabbis held that the boy was a doubtful mamzer. If so, how can a doubtful mamzer marry a Jewish girl? No way. So they came up with a plan. The boy would find a woman who was not Jewish, and would somehow ascertain that she was a slave, although those people don’t exist anymore, or are not recognized anymore, and have a baby through her, and the baby would be consecrated as a Jew. I don’t remember all of this so well as it took place decades ago, but that was basically what I remember. The catch in all of this is that the boy was an ultra-Orthodox Jew from Israel who dressed with full fanatic regalia, and what non-Jewish girl would ever accept such a person as her husband, especially if he had to explain to her that she would be a slave and have a baby a slave that would be consecrated as a Jew, or if I err in any of this, the real idea was not far behind this. This is why Rav Fischel Hershkowitz said right away that going to a gentile woman with all of this was not going to produce a wife for this fellow in Israel. His only hope is to go to Reb Moshe and be told that he is accepted as a regular Jew. Since Reb Moshe was the acknowledged Gadol HaDor, once he ruled on such a thing, the boy would find somebody to marry.

Now we come to explain why Reb Moshe did not mail me the letter and why the Strassberger asked me if I spoke nicely to Reb Moshe. Reb Moshe knew that the only hope for the boy was what Rav Hershkowitz said, to ask Reb Moshe to pasken the shaaloh. That is why Reb Moshe sent the letter to the Strassberger and not to me. He wrote the letter without the proper titles that usually one rabbi sends to another in an important letter. He wrote that way because he knew what Reb Fischel knew that the boy would never get married with the plan of the Israeli rabbis. Thus he wrote in a way that the Strassberger would realize that the letter contained a harsh complaint that Reb Moshe, the gadol hador, wants to pasken this question on his own, without the Israeli rabbis involved. If they got involved, the boy would never marry. Once however that the Strassberger saw my expression when he asked me if I spoke nicely to Reb Moshe, he realized what the truth was, and to mollify me for his accusation sent me to Reb Shlomo Zalman, the greatest rabbi in Israel, and the head of the group opposing Reb Moshe, so that he would see clearly what is going on over here, that Reb Moshe is very upset that the question is not being sent to him.

I came to Reb Shlomo Aurebach. It was Friday afternoon before Shabbos. He read the letter, and then, I said to him, “Rebbe! This is an Aguna question.” He exploded and said, “Somebody talked like that in Israel and we wanted to put him in cherem.” When I heard that, well, what can I say? At any rate, what I did I did because I am a talmid of Reb Fischel, but if I get put in cherem, what happens then?

Suddenly, I felt a pair of hands on my skull, and the skull was pulled open. That is, I sensed that. And the fingers reached into my skull and put a piece of paper there. The paper came shooting out of my mouth and I heard myself speak to Reb Shlomo Zalman and say, “The Rov should pasken, not give advice, but pasken, that the boy should ask the shaalo of Reb Moshe.” I noticed that Reb Shlomo Zalman was not looking at me. He was obviously talking to somebody I could not see, and the other person was obviously somebody important. I repeated myself, and Reb Shlomo Zalman turned back to me and said, with some irritation, “I heard you the first time. Yes, that is what we will do. I pasken that the boy should ask his shaalo of Reb Moshe.”

I ran with the letter to the Strassberger who agreed to the pesak, and to another Rov, who was I believe at the time the president or something like that of the Torah community in Jerusalem, and he agreed. So I had three prominent rabbis who paskened that the boy should ask Reb Moshe the shaalo.

I wrote on the back of Reb Moshe’s letter that Rav Shlomo Zalman Aurebach, the Strassberger Rov, and the third senior Rov, paskened that the boy should ask his shaalo of Reb Moshe. I then presented the letter to the boy.

Now comes the most shocking thing I ever saw in my life. The boy refused my letter. He said, “I am an Israeli. I want my rabbis to pasken my shaaloh. Why do I have to go to American rabbis?”

Let us pause for a moment. Here is a boy who knows that he is a doubtful mamzer and the rabbis in Israel will never permit him to marry a Jewish woman. But here is his hope. These same Israeli rabbis have clearly paskened that he should ask Reb Moshe the shaalo, and he refuses! Never did I see such a tsaddik, and he is a sofek mamzer – Incredible!!!

I found a Rov who spoke to the boy who agreed to accept the pesak of Reb Moshe but I never saw the boy again.

At least, let me add my own bit here to explain how the rabbis in Israel who feared that the boy was a sofek mamzer could tell him or pasken for him to ask Reb Moshe.

See Sheb Shemattso I:1 much discussion about a doubtful mamzer, if it is forbidden by the Torah or the rabbis. The Pnei Yehoshua brings that the Rambam holds that a doubtful mamzer who may be a mamzer or may be completely worthy of marrying a regular Jewish girl, may do either or both by the Torah. That is, even though logically by marrying both a mamzeres and a regular Jewish girl he has certainly sinned, by doubtful mamzer the Torah permits even this. There are other opinions there that are not our present topic. But at any rate, there are certain leniencies with a doubtful mamzer at least as regards the Torah, and therefore, the senior Israeli rabbis were dealing with a doubtful mamzer who if he marries a Jewish girl has standing with some opinions that he does no sin by the Torah and the discussion turns to the rabbinical stringencies. In such a case, when the rabbis accept that what they want to do won’t in all likeness work, and he will probably never marry, and the Gadol HaDor wants to permit him to marry, which probably will not produce Torah sins but maybe rabbinical ones, we understand why they ruled as they did.

Again, to mutter in my own muttering, a doubtful mamzer has many circumstances. One case is when there are two babies, one a definite mamzer and the other definitely not a mamzer and they get mixed together. This is a very serious problem of “one out of two” being forbidden for sure. But in the case of the Jews who lived for centuries among goyim and originally a Jewish tribe lived there, how do we define the community now? Surely they intermarried with goyim. And we have a rule that we go according to the majority. The majority of the country was surely gentiles, and they don’t make mamzerim. If so, the question is what is the question? If the majority of the country today and probably for previous generations as well are and were goyim, and maybe here and there is a Jew, so what? And if there is a Jew and he married somebody who maybe, possibly, had somehow got into his system some problem of a mamzer, is this not a remote question?

We have a doubt that may be not one doubt but many doubts. A doubt if this child is a goy. If he is, there are no problems. A goy is permitted to convert to Judaism, no problem there. But maybe this child who is probably a goy because the majority of the goyim there are goyim, maybe, he is Jewish. So what? He is Jewish, so what? Well, maybe the Jews in this community produced mamzerim. How could Jews produce mamzerim? One way is by a brother marrying a sister. But nobody does things like that. So why even worry about it. What happens if a Jew marries somebody who is married to somebody else? This is only a problem if the woman the Jew marries is Jewish and the man is Jewish. But in each case, we assume that the majority of gentiles cancel out the question if the husband or wife are Jewish. If even one, the husband or wife, is a gentile, and the other is Jewish, there is no mamzeruth. Without prolonging the discussion, there are so many doubts here that any verdict that a child is a doubtful mamzer is a very interesting challenge. Add to that that we are talking about a boy who may never marry which is certain a factor, and we can accept that the Israeli rabbis in good conscience told the boy to ask Reb Moshe his shaalo.

1 גיטין ע ע"א אמר שמואל האי מאן דמחו ליה באלונכי דפרסאי מיחייא לא חיי אדהכי והכי ניספו ליה בשרא שמינא אגומרי וחמרא חייא אפשר דחיי פורתא ומפקיד אביתיה אמר רב אידי בר אבין האי מאן דבלע זיבורא מיחייא לא חיי אדהכי והכי נשקיה רביעתא דחלא שמזג אפשר דחיי פורתא ומפקיד לביתיה עכ"ל וע' ע"ז יב ע"ב שמביא זה.

Rabbi Dovid E. Eidensohn/845-578-1917/eidensohnd@gmail.com

Broken Marriages and Derech Erets Today

The Mishneh in Sota 49 tells of two periods in Jewish suffering. One, in ancient times, when Roman armies destroyed Israel. Two, just prior to the coming of Moshiach, when Derech Erets, respect for another will weaken. Even respect for the elders of our families will decline or disappear. We are living in that time, the “footsteps of the Moshiach” and we all know what is happening: the destruction of many families. No longer are we shocked when we hear of a Torah family engaged in hate and worse.

These two periods began thousands of years after Creation. But we find in the very beginning of the Book of Eliyohu HaNovi, of Elijah the Prophet, a discussion of the first sins, of Adam in the Garden of Eden. These sins began in the very beginning, right about when Adam was created. And the first major teaching of the Book of Eliyohu HaNovi is that Derech Erets precedes the Torah! How great is Derech Erets. And yet, prior to the Coming of Moshiach, the Satan will be given the power to enter our homes and destroy Derech Erets, even so far as to cause us to insult elders of our family as stated in the above gemora!

If today we are shocked by the large number of broken families and divorces, we are living in the second phase mentioned above, when Derech Erets will decline and family will suffer. It is important that we know this, because when a person marries and suffers disappointment, the failing can produce shame and bitterness. The shame and the bitterness is part of the package of the terrible time before the coming of Moshiach. The decline in respect for family is part of the problem. We need a lot of prayer and trust that “there is nobody to help us but our Father in Heaven” and He can help. However, times have changed. We need prayer and hope that things will improve, and we must not despair when they don’t. Rather we must continue to turn to HaShem even in our times, and trust in the ultimate Redemption.

Recently I was told about  two ladies complete strangers to each other, who took upon themselves to make organizations to support women undergoing problems in marriage and family. Some of these suffering women were emotionally drained and destroyed, but when they came together and turned to HaShem, they found new strength and ability to continue. These organizations are “holy of holies” to support broken people in times of great emotional and social tumult. May they help people and may they merit to grow and strengthen more and more people who are very much in need of encouragement.

Let us study various sources about the End of Days. We want to know how people who fall and fail can find hope and the strength to continue. We will read about ancients and their struggles with sin and penitence. We will discover important facts that are hidden in biblical stories, and these hidden facts when revealed explain a lot.

After all that we will see and study in various sources, we must not forget the need for every community to organize encouragement for those on the wrong side of the End of Days. If anyone is too embarrassed to do these things, please call me at 845-578-1917.

Teachings of Eliyohu HaNovi About Family and Derech Erets

               

Let us study the teachings of Eliyohu HaNov about Derech Erets and family. We  have already above mentioned briefly the teaching that Derech Erets precedes the Torah. Now we turn to another teaching of Eliyohu the Prophet, not in his Book, but in the book of the Prophet Malachi[1]. Malachi was the concluding prophet of the Minor Prophets, those without large printed prophecies. (See footnote)

Let us look at the end of the prophecy of Malachi when he speaks about Elijah the Prophet. Speaking G-d’s decree Malachi states, “Behold I will send to you Elijah the Prophet before the coming of the great and fearful day. And he will restore the hearts of fathers to their sons, and the heart of the sons to their father, lest I come and smite the land and destroy it.” There is a custom in writing Holy Teachings never to conclude on a negative note, but now there is a negative and very threatening note. But here we are talking about a violation of Derech Erets, and respect between fathers and sons. A violation of Derech Erets between fathers and sons causes us to ignore the rules.

The threat by G-d to destroy the world is perhaps unique. But we are not surprised at this when we deal with a violation of Derech Erets, especially Derech Erets in the family. Yes, Derech Erets precedes the Torah. And violation of Derech Erets can destroy the world.

We turn now back to the beginning of the Book of Eliyohu HaNovi, and its passages about Derech Erets and Torah.

The Book of Eliyohu HaNovi[2] begins: “’And He drove out the man [Adam]’ this teaches that He [G‑d] gave him a divorce as if he was a woman.” Adam sinned in the Garden of Eden and was driven away. Why not just say “Adam was driven out of the Garden of Eden”? Why did the Book of Eliyohu have to add “This teaches that He gave him a divorce as if he was a woman”? Also, in Hebrew the phrase “And He drove out the man” does not imply a woman being divorced. The wordויגרש  means simply “and he drove away”. And while the term can also apply to driving away a wife with a divorce, in what way was Adam’s punishment to leave the Garden of Eden a divorce as one divorces a woman? Furthermore, the phrase had nothing to do with women, because the one driven away was Adam. So just what is the message here that Adam was driven away like a woman?

Furthermore, the entire story of the sins of Adam and Eve is not clearly explained. Indeed as we will see later the passage of Adam being punished with toil of the field has nothing to do with being driven from the Garden of Eden. It was clearly done to keep Adam from eating the Tree of Life and live forever. Now, what does that have to do with being driven away like a woman?

After Adam and Eve ate the forbidden fruit, they had to leave the Garden of Eden and live with suffering. The biblical passages of G‑d punishing Adam and Eve are one passage in Beraishis III:16 for Eve, and three passages for Adam, from Ber. III:17-19. This gives us four passages of punishment for people who were created to live in the Garden of Eden. What follows these punishing passages? Passage III:20 says, “And Adam called the name of his wife Chavo, because she was the mother of all life. The next passage says, “And the L‑d G‑d made for Adam and his wife garments of leather and He dressed them.”

Now, Chavo or Eve started the whole chaos that damagedl human beings forever. What does Adam do, after he realizes what his wife did to him? Does he rant and rave about her? No, he honors her with a name Chavo that means life, because she is the mother of the human race. Are we missing something? Yes. We are missing something very important, and it is there in the passage quoted by the Book of Elijah, that we have our first inkling of what the Creation story is really all about.

There is a gemora in Avoda Zoro 4b and 5a that talks about the hideous sins done by the greatest Jews. We are told about the Golden Calf built by Aharon the High Priest the brother of Moses that led to Jews worshipping the Golden Calf. Also, David caused the death of a soldier and took his wife with force. These sins, building a Golden Calf and worshipping it right after the Torah was given by G‑d at Sinai, and David’s terrible sins, seem to consign the sinners to perdition in this world and the next.

But in fact the opposite happens. In the Future World, the few greatest saints will sit at the table, and who recites Grace? King David. And what about the Jews who sinned at the Building of the Golden Calf and those who worshipped it? Are the Jews demoted by G-d? Not at all. Yes, Jews are always getting caught doing bad things, like the Golden Calf and such things, but G-d knows exactly what people are capable of doing in terms of sin, and He accepts the Jewish people and hopes that they will return to Him with teshuva, penitence. Yes, the purpose of the world, and of life, was not to produce perfect people. It was to produce sinners who repent. That is the purpose of Creation. The gemora explains that in order to establish this primacy of penitence, the greatest Jews in Jewish history were brought to commit hideous sins, and were encouraged to make true penitence, and G-d forgave them.[3] He forgave them and restored their high honor, because they were doing what He wanted for Creation, true and deep penitence.

Now we understand why Adam responds to his passages of punishment by announcing the glory of his wife, the one who destroyed him. If life is about sin and teshuva, Adam was right on target. Perhaps Adam realized that if his wife went out on his wedding day to have some experience with a Snake, that it was his fault, for not treating his wife with enough warmth and love. And when the portals of punishment opened upon Adam, he turned immediately to his sin with his wife, of not showing her proper love and care, and announced that he and all people would always honor her for being the mother of all human life. That is the way of penitence, for humans who have evil inclinations but don’t despair when they fail. They pray for forgiveness and if they do it properly are forgiven.

There is another aspect of this which is important to mention, even if we don’t get around to  understanding it properly, because it is after all part of the mystical Creation story. We see that Eve sinned and so did Adam. How could people created by G‑d in the Garden of Eden sin because some Snake tells them to defy G‑d? Basically, angels have no evil inclination. People do. There are furthermore, good angels and some bad angels, because the purpose of Creation was to test people with evil, and for that there are evil angels, such as the Satan, who is only evil because since people need to be tested by evil angels, the Satan does what he is told.

 On a deeper level the literature tells us that Adam and Eve dealt with evil angels very early in the Creation story, and some of it stuck to them.[4] There was therefore a flaw in their marriage, brought about by the angel in  heaven whose job it was to entice people and the angel’s husband who was the Angel of Death and terrified Eve until she ate the forbidden fruit.[5] The exposure of Adam and Eve to evil was part of the Divine Plan to test people with great evil forces, and that is life, where failures are common, but the show goes on with penitence, and we have a lot to repent for. We don’t anticipate coming to the Other World perfect, but we do hope to have some penitence, some pain that pays our way, and a life that is filled with problems that will help minimize our sins when we stand in judgment

---

[1] Malachi is the last of the biblical Twelve minor prophets. Minor prophets had smaller biblical publications than major prophets, but in prophecy they could be greater than major prophets. The Book of Malachi a minor prophet is about four pages, and the Book of Isaiah, a major prophet, is 64 pages. The gemora in Pesachim 87a says that Hoshea was greater in prophecy than Isaiah. However, Hoshea has a small place in the biblical narratives of prophecy despite being greater than Isaiah in prophecy.

[2] Tano Divei Eliyohu beginning of Chapter One

[3]Hakdomas haZohar 8A, see also Ore Yokor Shaar 2 Simon 2 page 78

[4] See Ore Yokor from Reb Moshe Kordevora Shaar IV:Simon 13 page 69 in my version.

[5] Yonasan ben Uziel Ber. I:5

Great Sin and Great Penitence

Great Penitence Atones for Great Sin

                                   

The gemora in Avoda Zora 4b and 5a teaches that the purpose of Creation was not to make perfect people, which obviously never happened, but to create people who sin and repent. True repentance is the purpose of Creation. That is proven when King David, who murdered a man and raped his wife, is honored to recite the Grace among the greatest saints in the Future World. Why did David merit this? Because the purpose of Creation was penitence, and immediately when the prophet rebuked David for his terrible sin, he devoted his life to penitence and to teaching others about penitence. Now obviously when a murderer hears about sin and punishment and mumbles, “I am sorry” we are not satisfied with his penitence, which much be really powerful and sincere, and may take years to achieve if ever. David did repent properly, and for his penitence, he merited the honor to lead the services among the greatest saints in the Future World.

If the purpose of life was not perfection but penitence, we can look into perhaps the oldest book of the Torah after the Prophets, the Book of Rabbi Eliezar ben Hurkenuse. Rabbo Eliezar was the student of  Rabbi Yochana ben Zackai, who lived at the time of the Destruction of the Temple, and saved the Torah in his meeting with the Roman conqueror, when he said, “Give me Yavneh and its sages.”

Rabbi Eliezar’s book contains many deep ideas. In the beginning of the book [in my volume it is page 6A] he writes that when G‑d decided to create the world He organized it and failed to sustain it. Because something was missing the world could not survive being created. Finally, G‑d created  penitence, teshuva, and the world found what it needed to exist properly. Thus, teshuva was not just a secondary element of Creation, but rather, without teshuva the world would simply collapse into nothing. The gemora in Avoda Zora 4b and 5a simply reinforce this with stories about the Israelites at Sinai who worshipped the Golden Calf and yet G‑d accepted their teshuva, and David who sinned with Bas Sheva and her husband, and remained a saint due to his teshuva.

Rabbi Eliezar adds there that seven things were created before the world could be created. The sixth thing was teshuva and the seventh thing was the Name of the Messiah. We don’t know how important the Name of Moshiach is or will be, but we have an idea from the above gemora in Avoda Zora how important teshuva is.

When Adam and Eve left the Garden of Eden, whereas they had very high souls, being created physically and spiritually by G‑d Himself, they realized that the purpose of life was penitence, and after their sin, they got right to work. Recall the passage says that “And he drove out the man” meaning according to the Book of Eliyohu “like a woman.” A man is married. Usually, a marriage begins happily, but down the road can come problems, and there can be a divorce. This divorce is a tragedy and the Altar in the Temple cries for it. The key is to rectify the problem, the divorce, which rends heaven and earth. Adam’s sin and being driven away had one purpose, to create the capacity in Adam to repent properly. He began that immediately by honoring his wife that she was the mother of all human life. She, who ruined his life by her dealing with the Snake in the Garden of Eden, was honored by Adam who suffered terribly from her. But he realized that now was not the time to blame people, that G‑d had given him one wife and would not create another one after he was expelled from the Garden. Therefore, Adam turned to Eve to make peace with her instead of the anger he may have felt for her dealing with the Snake and getting them both expelled from the Garden of Eden. By so doing, by accepting his wife’s errors and sins, Adam took a major step in penitence that restored him from the being driven from the Garden. And it is exactly in that discussion in the Book of Elijah, that begins with Adam’s “divorce like a woman” that concludes with the incredible statement that Derech Erets is greater than the Torah and is greater than the Tree of Life! Derech Erets teaches us to honor other people, and that is often quite a trick. Of course, when people are married and somebody does something terrible, forgiving is not easy. But Derech Erets requires us to honor others, even people who deserve something worse than honor.

Those who learn musar deeply, and are constantly studying their good and bad deeds and seeking improvement, have an idea of dealing with shame and humiliation. Once a person who worked hard to improve himself was on a boat sailing through the seas. He occupied a birth in the ship and looked up and saw a man standing above and treating him like a toilet. Afterwards, people were amazed to see that he emerged full of happiness, in fact, he was thrilled by what happened! People wanted an explanation and he said, that he studies Musar, and one of the great levels of Musar is to accept suffering from other people. The true level of musar is when one suffers greatly from a humiliation done by another person, even a vicious act, and he senses not hate, not bitterness, not sense of seeking revenge. When he realized he had fulfilled his Musar task, a lifelong ambition, he was thrilled and filled with happiness.

I don’t know if Adam and Eve studies Musar, but when they dealt regularly with G‑d who created them and sustained them, we can assume that they had a lot of Musar going for them.

Perfect Righteousness and Great Penitence

                                   

The gemora in Avoda Zora 4b and 5a teaches that the purpose of Creation was not to make perfect people, which obviously never happened, but to create people who sin and repent. True repentance is the purpose of Creation. That is proven when King David, who murdered a man and raped his wife, is honored to recite the Grace among the greatest saints in the Future World. Why did David merit this? Because the purpose of Creation was penitence, and immediately when the prophet rebuked David for his terrible sin, he devoted his life to penitence and to teaching others about penitence. Now obviously when a murderer hears about sin and punishment and mumbles, “I am sorry” we are not satisfied with his penitence, which much be really powerful and sincere, and may take years to achieve if ever. David did repent properly, and for his penitence, he merited the honor to lead the services among the greatest saints in the Future World.

If the purpose of life was not perfection but penitence, we can look into perhaps the oldest book of the Torah after the Prophets, the Book of Rabbi Eliezar ben Hurkenuse. Rabbo Eliezar was the student of  Rabbi Yochana ben Zackai, who lived at the time of the Destruction of the Temple, and saved the Torah in his meeting with the Roman conqueror, when he said, “Give me Yavneh and its sages.”

Rabbi Eliezar’s book contains many deep ideas. In the beginning of the book [in my volume it is page 6A] he writes that when G‑d decided to create the world He organized it and failed to sustain it. Because something was missing the world could not survive being created. Finally, G‑d created  penitence, teshuva, and the world found what it needed to exist properly. Thus, teshuva was not just a secondary element of Creation, but rather, without teshuva the world would simply collapse into nothing. The gemora in Avoda Zora 4b and 5a simply reinforce this with stories about the Israelites at Sinai who worshipped the Golden Calf and yet G‑d accepted their teshuva, and David who sinned with Bas Sheva and her husband, and remained a saint due to his teshuva.

Rabbi Eliezar adds there that seven things were created before the world could be created. The sixth thing was teshuva and the seventh thing was the Name of the Messiah. We don’t know how important the Name of Moshiach is or will be, but we have an idea from the above gemora in Avoda Zora how important teshuva is.

When Adam and Eve left the Garden of Eden, whereas they had very high souls, being created physically and spiritually by G‑d Himself, they realized that the purpose of life was penitence, and after their sin, they got right to work. Recall the passage says that “And he drove out the man” meaning according to the Book of Eliyohu “like a woman.” A man is married. Usually, a marriage begins happily, but down the road can come problems, and there can be a divorce. This divorce is a tragedy and the Altar in the Temple cries for it. The key is to rectify the problem, the divorce, which rends heaven and earth. Adam’s sin and being driven away had one purpose, to create the capacity in Adam to repent properly. He began that immediately by honoring his wife that she was the mother of all human life. She, who ruined his life by her dealing with the Snake in the Garden of Eden, was honored by Adam who suffered terribly from her. But he realized that now was not the time to blame people, that G‑d had given him one wife and would not create another one after he was expelled from the Garden. Therefore, Adam turned to Eve to make peace with her instead of the anger he may have felt for her dealing with the Snake and getting them both expelled from the Garden of Eden. By so doing, by accepting his wife’s errors and sins, Adam took a major step in penitence that restored him from the being driven from the Garden. And it is exactly in that discussion in the Book of Elijah, that begins with Adam’s “divorce like a woman” that concludes with the incredible statement that Derech Erets is greater than the Torah and is greater than the Tree of Life! Derech Erets teaches us to honor other people, and that is often quite a trick. Of course, when people are married and somebody does something terrible, forgiving is not easy. But Derech Erets requires us to honor others, even people who deserve something worse than honor.

Those who learn musar deeply, and are constantly studying their good and bad deeds and seeking improvement, have an idea of dealing with shame and humiliation. Once a person who worked hard to improve himself was on a boat sailing through the seas. He occupied a birth in the ship and looked up and saw a man standing above and treating him like a toilet. Afterwards, people were amazed to see that he emerged full of happiness, in fact, he was thrilled by what happened! People wanted an explanation and he said, that he studies Musar, and one of the great levels of Musar is to accept suffering from other people. The true level of musar is when one suffers greatly from a humiliation done by another person, even a vicious act, and he senses not hate, not bitterness, not sense of seeking revenge. When he realized he had fulfilled his Musar task, a lifelong ambition, he was thrilled and filled with happiness.

I don’t know if Adam and Eve studies Musar, but when they dealt regularly with G‑d who created them and sustained them, we can assume that they had a lot of Musar going for them.

Men and Women, Who is Superior?

Today a major problem is gender relations. Woman assert themselves, and often the man is a victim of the gender war. It used to be when I was young about fifty plus years ago, that I never heard of somebody getting divorced until high school, when a judge did something scandalous and his wife divorced him. But divorces because two people didn’t get along I don’t recall. However, in recent times, women have organized, they have gotten a lot of backing and a lot of money, and they announce to the world, “Orthodox Feminism”  or just plain Feminism or just plain whatever they say to declare their strength and gender relations. Men are embarrassed to fight with women, and most of them don’t or if they do they may regret it, especially when the secular courts and society back ladies. So let us take a look at gender issues from a Torah perspective. Is there another way?

The gemora in Berochose 17A states, “Greater is the trust that G‑d has promised to women more than [what He promised] to men, as it says, ‘women of trust, hearken to My voice’.” There is a gemora in Menochose 29b that there are few Tsadikim [great in righteousness] in heaven, which probably means men, because the ladies are assured of paradise as we noted before.

I recall many years ago in Baltimore that somebody noted, “Non-Orthodox Jews are split in their Jewish activities. Men choose non-Jewish organizations and women choose Jewish organizations.” I don’t claim to have the facts and figures, but if I had to guess, I would choose the women as faithful Jewesses over the general picture of men. I did see some statistics recently about the huge amount of intermarriage going on, and an Israeli politician said that if this continues only the Orthodox will remain in Israel. So the issue is not so much men and women in the modern secular world, because with all of the intermarriage, the only ones who will remain will be the Orthodox. But as I go back fifty or sixty years, there was a different climate. The secular Jew was not secular in the sense of intermarrying. In fact, the Yeshivas were supported mostly by secular Jews who had a Jewish heart. I remember when a wealthy Jew, Mr. Himmelfarb in Washington, sent a $5,000 check to my Yeshiva, Yeshiva Chofetz Chaim of Baltimore. The Yeshiva contacted him and asked for a personal meeting that was successful. Again, the non-Orthodox Jews with Jewish hearts were the only ones around in my childhood who could give big money, and they kept the Yeshivas from complete collapse, because who else had big money? Now there are many wealthy Orthodox Jews, and I don’t know how many Jews of heart are out there in the secular world.

Our teaching in the gemora is that Jewish women are connected to G‑d more than men, and they have G-d’s promise and trust more than men. In pure gender statistics, mark one for the ladies.

When I married, I had more energy than I have today, and I used to give long talks on Shabbos to my family. I spoke about the Jewish attitude towards women.  One of my favorite proofs was the Matriarchs versus the Patriarchs. Abraham wanted to keep Ishmael his son in the family, but Sora wanted him out. G‑d told Abraham, “Everything that Sora tells  you hearken to her voice.” That means, says Rashi, everything, because she was greater than her husband Abraham in prophecy. What would have happened to the Jewish people if Ishmael had remained in the family and would have been the senior son because Isaac was born much later. Well, we know that Ishmael was a fighter and had quarrels with everyone, and what kind of Jewish nation would that be?

 Next generation of male and female was Isaac and Rebecca. Isaac wanted to bless Esau and Rebecca got the blessings for Jacob. Can we imagine what kind of family Jews would be if Esau had been the senior of the Jewish people? The Torah and Rashi tell us that his wives were pagans who insulted Rebecca, and Esau himself was a horror how he acted. How did the Jewish people survive? Only from the women.

 Next generation was another struggle who would be the boss of the Jewish people, when Jacob preferred Rachel but somehow ended up with Leah. Leah eventually had more children than any other wife of Jacob, and her children were the great Jewish families. From Leah came Judah and the Jewish monarchy, Levi and the priesthood and the service in the Temple, also the great scholars of the Jewish people and those who supported these great scholars. If Jacob had succeeded he would have had Rachel as the main wife, but she had only one son and her second son was born as she died. Furthermore, Rachel was responsible for Jacob marrying Leah, because Rachel knew that if she married Jacob and not Leah, that Leah would be humiliated. Thus, the ladies saved the Jewish people, once again.

History is on the side of the ladies. G‑d’s trust and promise is with the ladies. And let us continue with Jewish history, when we find that the father of Moshe divorced his wife when Pharaoh decreed on the death of Jewish male babies. Miriam convinced her father to remarry his wife, and Moses was born. Who saved Moses from drowning in the river? Miriam and her mother. When the Jews left Egypt, the females led by Miriam brought musical instruments because they were sure that G‑d would save and protect the Jews. When the Egyptians were drowned in the sea as they attempted to attack the Jewish camp and bring them back to Egypt, Miriam and the ladies danced and sang and played musical instruments. The men just stood there and recited a few lines of praise. The men did not bring musical instruments from Egypt, they brought weapons, which were at that point useless. Mark another one for the ladies.

 When Moses went to heaven to receive the Torah from G‑d, the remaining Jews built the Golden Calf and some worshipped it. Aharon the brother of Moses was blamed for making the Golden Calf. But the women did not worship it. Let’s give another check to the ladies for their trust in G‑d, and the men, well, anyway.

Just one more point here. The Jews had many leaders throughout the generations. Only one was perfect, Devorah, who led the Jews in judgment and war. No men were perfect. Let us now turn to the Creation story, the sins of Adam and Eve, and the power of penitence.

Moon Women in the Creation Story Before Women Were Created

When the Book of Elijah begins with the discussion of Adam being driven like a woman from the Garden of Eden, it was not trying to pour on the pain and the shame of the sinners who used to live in the Garden of Eden. Let us state briefly here that the idea of being a woman is a central theme of the Creation story, as Rashi states and as is indicated by the various female and male terms used for heaven at that time. Briefly here, the beginning of the Creation story is a story about the superiority of women. The strangest teaching I ever saw in the Talmud is about the argument between G‑d and the Moon. It seems that the Sun and Moon in the earliest phase of Creation were of equal luminosity. The Moon, a female, wanted to lower the power of the Sun, who was a male, and make herself the sole strong light. She argued but G‑d did not agree, and so the Moon was frustrated, especially when G‑d instructed her “Go and reduce yourself” which was the opposite of what she wanted.[1]

What is really amazing is that after the long debate between the female Moon and G‑d,  G-d said: Bring a sacrifice for Me because I made the Moon small. We see from this that G‑d accorded the demands of the Moon with great respect, despite His decision to deny them. Of course, the Sun and Moon who are depicted as male and female were not humans at all, but rather angels whose job it was to keep the world functioning for humans who would receive the Torah. When we accord the Moon the status of an angel, we are amazed at the pure chutzpah to argue with G‑d to such a degree that she did not give in an inch. We cannot understand why G‑d declared that for denying her demands to shrink the Sun and to leave her the sole major light, He must bring a sacrifice! Now, to a simple person like me, it sounds like the Moon was spouting pure chutzpah and deserved a good something, but G‑d obviously did not see things that way. He had the greatest respect for her demands, and we surely want to know why. We also want to better understand how an angel who is in charge of the Moon should be a woman and the sun a male.

Let us turn to the Kabbalistic classic Ore Yokor from Rav Moshe Kordevero zt”l, who was eulogized by the Ari z”l that he never sinned and did not die for his failures, but for the general situation where people live and die, and some die without any sin. On page 185 (Shaar 6. Simon 32 beginning - I will make for him a helpmate opposite him) we learn that male or Adam is Kindness, and female is Gevurose, or strength, power, and conquest. Now this does not sound like a regular male or female, but this was the status of Creation.

Let us take a look at Rashi in the first passage in the Torah, the Creation story. Rashi notes that the first passage in the Torah is “In the beginning ELOKIM created the heavens and the earth.” Later on, Rashi notes, in the beginning of chapter two, the Torah changes the Name of G-d from Elokim to HaShem Elokim. Rashi explains that Elokim means strict justice and punishment. This was the Name of the first chapter of the Torah, the Creation of the entire world in seven days. It was done with the female level of justice and strength. Bu G‑d saw that such a world filled with justice and strength would wipe out the wicked, and what would happen to the world? Therefore, in chapter two of the Torah, we see a change from ELOKIM to HASHEM ELOKIM, HASHEM means “the Name” which is a hint to the ineffable Name that is not pronounced. It is a level of mercy, not rigid justice. Rashi explains that if the world existed with ELOKIM or justice it could not exist because of the sins of mortals. Therefore, after the Creation of seven days and the world and its people and animals, the system of Creation was changed from rigid justice ELOKIM to a compromise with mercy HaShem.

The MOON was female and the pure female essence is rigid justice, wipe out the wicked, etc. The MOON noticed that the world had two equally powerful suns, the MOON, her, and the male SUN. She noticed that the world was created in the first chapter of Creation with the female level of ELOKIM and she demanded that G‑d accept this by denigrating the male mercy level of the SUN. She was right, but her level would lead to destruction of the world. Therefore, G‑d recognized that she was right as proven by the word ELOKIM used throughout the first chapter of the Torah and the Creation story. And yet, G‑d did not accept a world that would be destroyed. And what He did was as follows: There would be two systems for the Creation. One level and system for ordinary people, and one for the righteous.

The righteous would live with the female level of justice and be punished in this world for their sins. Ordinary people would live in a world where justice is joined with mercy, otherwise ordinary people would not last. If so, the MOON was for the righteous people, and the SUN for the ordinary people. G‑d acknowledged this by stating “bring a sacrifice for Me because I refused the request of the Moon.” G‑d realized that His refusal to recognize the first phase of the Creation to destroy wickedness and sustain rigid righteousness was a valid problem for the Moon who was created for rigid righteousness, the level of the first chapter of the Torah and Creation. However, the world required two levels to avoid general destruction for people who were not exceedingly pious.

In the end, the Moon female was diminished and along with her the female who struggles with the power of men. But women are closer to G‑d and piety than men, and are closer to Heaven than men. But their struggles in this world, with the clash between the first and second chapters of the Torah, indicate a problem for women in this world, although it guarantees them a higher place than men with G‑d, which is the ultimate purpose of Creation. The gender realities are different between men and women and who is to understand them? Even the angel of Genesis call the Moon was befuddled by it, so what can we expect to understand? We have to understand  that we don’t understand, but G‑d does understand.

Before we leave this topic and find a lot of confused people in our wake, let me turn to a related topic, but one that is not obviously related to it, but one that is very strongly related to our subject.

In our daily prayers, in the beginning after introductory prayers, we come to the beginning of the main prayers  that begin with Baruch Sheomar. The prayer Baruch Sheomar begins the part of prayer where we are not allowed to speak anything but prayer. Thus it is an elevation over the earlier introductory prayers. After we conclude Baruch Sheomar with a blessing and G‑d’s Name, we come to a passage in of prayer of praise for G‑d, beginning “A song of thanks.” Ostensibly, it appears exactly like all of the Psalms of David and others who wrote praises of G‑d. And yet, incredibly, the Code of Laws on Orach Chaim 51:9 tells us that we must sing this prayer differently than other prayers and Songs of praise because “all of the Songs will be cancelled other than Mizmor LiSoda”. And yet, when we look at the Song of Mizmor LiSoda we see nothing different than the Book of Psalms and other songs to G‑d. So why will all Songs be cancelled except this Song?

I showed this question to various people and got no response. But I have an answer and several people accepted it. We live in the world of finite knowledge. We don’t know G‑d very well, of course, and we understand very little of His plans for us and His processes to deal with us. But all of us suffer problems of some degree, and when something imperfect happens in our lives we say, “I am sure that G‑d meant this to happen for the best.” That is, we have faith in G‑d that He is a G‑d of kindness and our pain is for our own good. But we don’t know this at all, we just have a faith in G‑d’s kindness. A time will come, however, when G‑d will reveal His absolute kindness that will find us in an elevated state whereby we can absorb with our minds the truth of G‑d’s kindness. Then we will see clearly, not on faith, that all of our suffering was for our own good, something that is completely remote from us today and until the higher light is revealed to us in the Future.

The Song Mizmor LiSoda is a Song of Happiness, a happiness that does not proceed from faith, which is a dark thing beyond our finite minds. A Song of Happiness means a true happiness that reveals the heavenly processes of G‑d’s treatment of mortals, their suffering and their problems. In the future, and only then, will mortals realize that our pain in this world was really for our good, not through blind faith, but in the blazing light of heavenly truth which will only be revealed in the Future, when people are worthy to see this Advanced Light and know exactly what G‑d had in mind to help us and make us happy when we suffered.

 Since only Mizmor LiSoda has this capacity, it will stand uniquely in the Future, when all of us will know that our suffering was not accepted on blind faith, but on clear and revealed truth, in the Light of the Future not available now. At that point, our blind faith will be supplanted by revealed Heavenly light of the Future World, and new love of G‑d will supplant the old blind faith.

The Book of Solomon A Song of Songs is about suffering of a woman. Nothing in that book explains anything but simply tells of a woman’s suffering. In the Future World, especially at the time of Mizmor Lisoda being revealed in truth Future World light, that book will explain a lot that is hidden now. But those who merit it will be especially those women whose faith sustained them. These women are those mentioned in the gemora “Greater is the promise of faith that G‑d has for the women than He has for the men.”[2] Only then will the Moon shine with her faith vindicated, along with other women. And G‑d’s pledge to atone for what He did to the woman will be understood in a different and higher light.

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[1]Chulin 60B

[2] Berochose 17A