It’s a story, of hope and tragedy. The hope lies in the fact that some rabbis are capable of creative halakhic thinking to bring relief to those who suffer under the law’s inequity. The tragedy is that they aren’t the only rabbis in this story.
The case (you can read it here) dates from 2014, when the beit din of Tzfat (Safed), chaired by Rabbi Uriel Lavi (above left), granted a get (document of divorce) to a woman whose husband, injured in a motorcycle accident, had been in a persistent vegetative state[1] for seven years. The problem, from a halakhic standpoint, is that: 1) under Jewish law, which controls marital relations for Jewish citizens of Israel, she cannot remarry unless she receives a get; 2) she cannot divorce her husband, because under traditional halakhah it is only the husband who can issue the get; 3) a get can only be issued and authorized by the husband of his own free will and consent (da`at, דעת); and 4) the husband in this case is obviously incapable of expressing consent. There seemed to be no way out for this unfortunate woman, until the court devised a solution: a get zikui (גט זיכוי), a divorce document granted by the beit din to the husband. Its closely-argued 93-page opinion argues that in a case such as this, the court can stand in the husband’s place and issue the divorce on his behalf.
The issue is complex – for a detailed summary in English, see here – but it ultimately boils down to one halakhic question: if the Torah (Deuteronomy 24:1) grants to the husband the exclusive power to issue a divorce, on what basis can the beit din substitute its own da`at for his and authorize a get without his consent? The answer lies in the Jewish legal principle that “benefits may be conferred upon a person without his/her express consent.”[2] Halakhists in the past have utilized this principle in order to enable a husband to a wife who is judged to be insane and therefore not legally competent to receive a get.[3] The court simply “awards” her the get, and the divorce is accomplished. But it is much easier to justify a get zikui for the wife, who under Torah law may be divorced without her consent, than it is to justify granting it to the husband, who after all is the active party in the divorce and must express his consent to the divorce.[4] It is a controversial ḥidush, or legal innovation. But that is precisely the Safed beit din does in its lengthy analysis. The wife is now free to marry again.
Except maybe she isn’t. Chief Rabbi Yitzḥak Yosef announced last month that he would convene Israel’s Supreme Rabbinical Court – there they are, some of them anyway, in the photo above right – in order to overturn the get awarded by Rabbi Lavi and his beit din. The decision to assemble all the members of the Supreme Beit Din has been described as “unprecedented” by some Orthodox observers, who point out that R. Yosef has already announced his opposition to the theory upon which the divorce was based and has denied Rabbi Lavi promotion to the Supreme Rabbinical Court because of the disagreement. Other Orthodox rabbis, to their credit, have protested Rabbi Yosef’s action, particularly on the grounds of jurisdiction: no beit din has the right to annul a get awarded by another court. But the fact remains that after waiting seven years for a medical solution and an additional two years since she was issued a get by the Safed beit din, this unfortunate woman learns that the Chief Rabbi is ready to take extraordinary measures to deny her the relief that she desperately needs and justly deserves.
We are confident that Rabbi Yosef means well. We don’t think that he has intentionally set out to destroy the life of this woman. We imagine that he would say that he is simply doing his duty, following the dictates of the halakhah that leave him no choice. We would simply emphasize the fact that he did have a choice. He was not required to denounce the ruling of the Safed beit din, which after all rests upon extensive source analysis and careful thought. His decision to intervene in this case is therefore very much his choice, and he ought to be held personally responsible for it. We’ll have more to say about this case, and about the theory and symbolism behind the get zikui, in later posts. In the meantime, we invite the reader to consider the extent to which the established rabbinate has brought discredit – once again – upon a Torah “whose ways are pleasantness and whose paths are peace” (Proverbs 3:17).
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[1] There’s some safek (uncertainty) over the diagnosis. Some press reports use the word צמח to describe the husband; hence, our translation “persistent vegetative state.” Others use the word תרדמת, or “coma.” The English-language reports are similarly divided. Either way, there seems to be little or no chance medically speaking that the husband will regain consciousness.
[2] זכין לאדם שלא בפניו; B. Eruvin 81b and elsewhere. It is on the basis of this principle that an infant or child may be converted to Judaism. Although the acceptance of the mitzvot normally requires consent, we consider conversion and Jewish identity to be a benefit to this minor; hence, s/he can be converted by the beit din, though s/he will have the right to renounce the conversion upon reaching the age of majority (B. Ketubot 11a).
[3] For the sources, see the discussion in the court’s ruling, pp. 25ff.
[4] B. Y’vamot 112b: שהאשה יוצאה לרצונה ושלא לרצונה, והאיש אינו מוציא .אלא לרצונו This inequity was the object of the famous takanah (legislation) of Rabbeinu Gershom b. Yehudah (10th-century Rhineland) that decreed that a woman may not be divorced without her consent. But under certain circumstances, a get may be awarded to a wife over her protests; after all, Rabbeinu Gershom could not have intended that a husband be unjustly denied the right to remarry… a right that is denied to the wife, under Torah law, when she becomes an agunah!