The Time has Come to Stop Mamzeruth and Niuf: But How?
This post is about a solution to the problems of mamzeruth
and niuf. It is about four pages and touches on some very important topics,
affecting the relations of the genders, and all people who plan to marry. It is
furthermore a new idea, not that it is not covered heavily in the poskim, but
that people don’t do it for many generations. Nonetheless, I feel that the time
has come to do this. I have semicha from HaGaon Reb Moshe Feinstein zt”l that
he knows me for many years as one who delves very deeply into complex halochose
(published in three halacha seforim beginning with hilchose bayis neemon). And
I feel confident that the great efforts I expended in speaking constantly to
gedolei hador of the past generation Reb Aharon Kotler, Reb Yaacov Kaminetsky,
Reb Yosef Shalom Elyashev, etc., and getting my brain redesigned on a regular
basis, has helped me. HaGaon Rav Yosef Shalom Elyashev zt”l knew me from a Beth
Din I made to serve Russian Jews that basically had to ask him all of the
shaalose, and he gave me his name to use for my Beth Din, which is a very
special type of semicha because I understand he didn’t do that very often. Now to
the article.
The time has come to stop mamzeruth and niuf. If we have a
major Yeshiva in America whose Rosh Yeshivas permit a woman to remarry without
a GET, and refuse to say what rabbi permitted it, and nobody protests except me
and my brother, the time has come to say
it like it is. Things are very bad now and they are going to get much worse.
What is the problem? There are many Torah broken families
with no GET, and people “help” the lady remarry, even though these “helping”
ideas are wrong. Now is a time for creating children mamzerim. Now is a time
for child molesting. And now is a time, not just to protest, but to solve the
problem. But how can that be done? It can be done.
The problem is rooted in the laws of Kiddushin or Torah
marriage, when the husband takes the wife with “kiddushin” and sanctifies her
with a divinely sanctioned marriage, this is kiddushin. The husband gives his
wife a ring and says, “You are mekudeshes to me” you are sanctified or set aside for me. At
this point the woman “belongs” to the husband. Rashi tells us in the parsho of
Sotah that a woman is married to a man, but also to HaShem. This is a great
level of spirituality. Why a woman is relegated to the husband is one of the
great mysteries, and we will deal with it here very briefly. We must do this
because the main force of the mamzer producers is the fear of offending women
if the Torah does not allow them freedom to leave a marriage. Implied in this
is that the Torah is wrong. And some of the more leftist innovators say this
openly. But we must respond to this.
I am now working on the Ari z”l’s commentary on Shir
HaShirim. So far in my work, this is the major theme. The female essence, the
Schechinah, is bitter and complaints about the way she is treated. Now, there
is one passage where the Ari z”l says very little and skips the main portion of
the passage (I:6). And even passage 6 has no heading, but five and six are
together, which is strange. And that
passage really needs a commentary. But I explain that this passage refers to
the gemora in Chulin 60b, where during the first days of Creation, HaShem
created the Sun and the Moon, and both of them had the light of the sun, a full
blazing light. The Moon complained that two kings cannot share the same crown.
HaShem responded, “Go and diminish yourself.” The Moon was upset by this and
HaShem said that “Jews will use the Moon for their calendar.” But the Moon was
not happy. Finally, HaShem said, “Bring for Me an Atonement that I diminished
the Moon.” Thus, the diminishing of the Female Essence or Din leads to great
evil in the world, which is a Chilul HaShem and HaShem is humiliated by the
lowest people. For this Chilul HaShem on Himself and the Female Essence which
is higher than the Male Essence of Kindness, HaShem, on Rosh Chodesh, has an
offering brought, as if it could be. The Ari z”l does not comment on that passage
fully because we don’t want to talk too much about HaShem’s atoning that cannot
be understood in this world.
The New Moon, when the new month of moon appears, is a
holiday for ladies but not men. On that day HaShem remembers that He created
the world with the female equal to the male, but then things changed. And so,
today, in this world, there is a world of diminished female power. The
Schechina is a holiness of the Female Essence, called DIN, or justice. If the
world functioned with the Female Essence of Din all sin would lead to rapid
destruction, and the world would collapse. So DIN and the Female Essence are
“diminished,” because true Din can only be revealed in the Higher World. Let’s
leave it at this for now. We will just say what is says in Shir HaShirim about
the complaints of the Schechina. In this world there is no explanation.
But the
reward for the suffering is incredible and permanent in the Higher World.
Briefly, the Schechina, Israel and women are treated very shabbily in this
world. For this, that they suffer and still love HaShem and obey Him, they have
great reward in the Future World. When HaShem reveals His Monarchy to All,
these three will be elevated. When the Female Essence demanded superiority over
the Male Essence HaShem responded, “Go and diminish yourself.” The diminishing
in this world leads to superiority in the Future World. Indeed, the gemora indicates
that it is easier for a Jewish woman to gain Paradise in the Higher World than
it is for men. But let us go back to our
original issue. What is the solution to the problem of mamzerim and niuf from
broken marriages?
Rule One: The Laws of Kiddushin, or Torah marriage, are
quite severe. A woman whose husband disappears, as often happened in previous
generations, has a big problem, until she has proof that he died or if she
receives a GET from him. Rabbeinu Tam says that a woman who obtains a GET that
may be kosher, but some people disagree with it and may talk about it, spreading questions about the GET that it is
not kosher, and her child would suffer from this, she is forbidden to remarry.
We may say a bit differently, that a woman who marries with Kiddushin and yet
is not prepared to honor it completely, even to remain an Agunah all of her
life, may not receive Kiddushin in the first place. Somebody told me that this
is the opinion of a Gadol in Israel.
Rule Two: There is a mitzvah in the Torah for a man to marry
with Kiddushin. See Charedim 20:6. But a
woman who will not honor Kiddushin properly, and will remarry without a proper
GET, or who will seek to coerce her husband to make an invalid GET, or go to
the Philly mob that allows a woman to remarry without a GET, how can she marry
in the first place? It is a sin for her to accept Kiddushin.
Rule Three: A man or woman must be married for biological
and Torah reasons. A man or woman who is not married but is mature biologically
is a threat to himself and to the community, especially if they have been
married once before and have experience in marital intimacy.
Rule Four: If a Jew has relations with anyone without marriage,
he has committed the sin of Zenuse. This is very serious.
Rule Five: We thus have Rule One that it is a mitzvah in the
Torah to marry with Kiddushin. But there we learn that one who will not honor
Kiddushin to the end may not marry with Kiddushin. So what can such a person
do? Zenuse is a serious sin, Kiddushin is forbidden. What can he/she do? There
is a third way, marriage that is not kiddushin, referred to as Pilegesh.
Pilegesh was once a term used to differentiate between one’s main wife, and
secondary wives. Some say that marriage without Kiddushin is forbidden, and
some say it is permitted. But the ones who permit it have rules that it must be
a real marriage and not an excuse for zenuse. Now, in case a person is
forbidden to make Kiddushin, and is forbidden to be alone and end up sinning
with zenuse, chas vishalom, the only viable path is pilegesh, or marriage
without Kiddushin and without zenuse.
I am now in the process of working out the exact process of
pilegesh, or marriage without kiddushin. It will have to contain two things:
One, a clear commitment from the male and female to marry with real marriage
not zenuse, and they must clearly reveal that they do not, under any
circumstances, want kiddushin.
Preferably, a Beth Din should draw up papers where they both sign in severe
terms their intent to marry without ever making kiddushin, until they change
their minds and want kiddushin and return to the Beth Din to arrange this. This
is because someone may feel that when anyone marries in a community containing
Orthodox Jews and they see someone living as man and wife, they assume that the
marital relations were done with the intent of using biah as the act of
kiddushin. We may encourage an oath or something very serious to make sure that
no Kiddushin is involved. We will also strongly emphasize that zenuse is
forbidden.
Years ago I suggested a similar thing to a group of Orthodox
rabbis who served Conservative pulpits. I told them that they make Kiddushin
diorayso but afterwards the people don’t honor the kiddushin, possibly making
mamzerim. I suggested that they not make Kiddushin, but some ceremony such as a
two ring ceremony where it is clear that the marriage is a partnership and not
a taking of the wife by the husband. I asked some rabbis who approved.
Later somebody else who was a major rabbi in a major city in
Israel suggested something similar to avoid mamzerim, and there was an uproar.
His suggestion would have rocked the boat with the control of the rabbonuse
over marriage in all of Israel. But in America, and in Israel if there is
no government issue, I don’t see what is
wrong with avoiding mamzeruth.
At any rate, there is a great weakness in all of this. Those
laws that people constantly need are well known to many rabbis, the laws, the
sources, and the limaaseh, exactly how to fulfill them. But when we are talking
about something that was done far in the past, such as making marriages without
kiddushin, we have two weaknesses. One is that there will be an uproar over the
breaking of tradition. And two, nobody really has the experience to know what
to do in this area.
As far as the uproar goes, I say that those rabbis who made
no uproar when the Philly Yeshiva told a married woman to remarry without a
GET, without saying what rabbi permitted it, I don’t know why they should yell
and scream when somebody does not do kiddushin because they are afraid of
mamzeruth. And as far as the second problem, that we are far removed from
making marriages that are not kiddushin, that is true. But on the other hand,
there are many seforim that talk about these laws, some with many pages of
details.
Thus, we are sure that kiddushin is forbidden for many people
and yet marriage is their only option. So if a Beth Din can clarify their relationship
that it is not kiddushin and will not become kiddushin, and everything is written
down, signed by the couple and the Beth Din, there should be no problems. Whether
the couple should take a GET when they separate, and the exact procedure of marrying
in this way, must be developed. At this point I simply advance the basic idea. It
may be, as with other halacha issues, that only time will allow for us to realize
the best way to handle all of this. But one thing, I hope we never have to worry
about mamzerim.
