Introduction

The protracted divorce battle between Aharon Friedman and Tamar Epstein is the most publicized case of agunah in recent memory. An aggressive campaign led by the Organization for the Resolution of Agunot (ORA) capitalized on Mr. Friedman’s relatively prominent status as a congressional aide for David Camp. The efforts of numerous online and personal protests eventually led to mainstream media coverage from outlets such as Fox News, The New York Times and Politico which called national attention to Mr. Friedman’s refusal to grant his wife a halakhic divorce. As with virtually all cases of agunah, the recalcitrant party is vilified with public condemnations and communal pressure to acquiesce.¹ When the specific goal is obtaining the immediate divorce, it is a relatively simple matter to identify the party responsible for obstructing the process and to protest accordingly. Others, however, find fault with the halakhic system, and in a desire to change the status quo to identify other sources of blame.

In a recent Forward blog post titled “On Agunah Issue, Pressure Rabbis, Not Rep” Dvora Myers argues that the plight of agunot is not only the fault of a recalcitrant husband but of the Rabbis for creating the regulations in the first place.

However, if withholding a get constitutes abuse, if the husband is indeed brandishing a psychological weapon and threatening his wife with it, then the question that should be asked: How did the gun get into his hand?

The answer is clear: It was put there by Jewish law, the rabbis who formulated it, and the rabbis who refuse to amend it.

Myers’ understanding of Jewish law is informed by Blu Greenberg’s famous dictum, “where there’s a rabbinic will, there’s a halakhic way,” thus placing the burden of agunot squarely with the Rabbis. Ultimately Myers concludes,

If maintaining a nearly thousand-year-old ruling is more important than offering women equality within the religion, I would at least like to see one of these rabbis condemning Friedman admit as much. It would be refreshingly honest to hear one of them say something like, “When faced with the choice of preserving tradition and promoting justice and equality that would give women the freedom to divorce, we choose the former.”

Most Orthodox Jews would agree that adhering to a thousand-year-old ruling is, in fact, more important than fulfilling the prevailing ethic of the day. This is due to a fundamentally different approach to Jewish law, one which assumes that halakhah is ultimately a representation of Divine Will. In this case, it would be strict adherence to the biblical laws of divorce in Deut. 24:1-1 and the capital offense for adultery in Lev. 20:10. It is important to consider that this approach to halakhah is shared by the agunot themselves, who while having the free will to ignore Jewish law and remarry as they wish, are committed first and foremost to keeping halakhah despite the immense challenges it presents.² Thus, when a Rabbi adheres to Jewish law, even if it is unpopular, inconvenient, or even difficult for him to do so, he is not being an obstinate misogynist, but rather fulfilling his duty as a Rabbi.

But while it is misguided to blame Rabbis for following halakhah, it is completely legitimate to hold Rabbis accountable to the very halakhah which they espouse. Unfortunately, the Orthodox Rabbinate has not always lived up to their own ideals even when the lives agunot were at stake.

Denominational Politics

As stated earlier, it is reasonable if not expected for Orthodox Rabbis to prioritize adherence Jewish law over placating emotions or more subjective and capricious notions of ethics. In this respect, the “tradition” for which Myers finds little use is the fulfillment of Divine Will, which for a believing Jew is not an empty thing. But the “tradition” of halakhah is often equated with the “tradition” of Jewish culture such that communal practices or sociological identification may be just as if not more important than halakhah.

In 1954, the Rabbinical Assembly of Conservative Judaism formally discussed what is now known as the “Lieberman Clause,” named after its primary author Rabbi Saul Lieberman. This clause was an additional paragraph to the traditional ketubah (Jewish marriage document), the text of which, as introduced in 1954 is as follows:

And in solemn assent to their mutual responsibilities and love, the Bridegroom and Bride have declared: As evidence of our desire to enable each other to live in accordance with the Jewish law of marriage throughout our lifetime, we, the Bride and Bridegroom, attach our signatures to the Ketubah, and hereby agree to recognize the Beth Din of the Rabbinical Assembly and the Jewish Theological Seminary of America, or its duly appointed representatives, as having authority to counsel us in light of the Jewish Tradition which requires husband and wife to give each other complete love and devotion, and to summon either party at the request of the other, in order to enable the party so requesting to live in accordance with the standards of the Jewish law of marriage throughout his or her lifetime. We authorize the Beth Din to impose such terms of compensation as it may see fit for failure to respond to its summons or to carry out its decision.

Thus, were a husband were to refuse to give a get to his wife, the wife would then appeal her case to the Rabbinical Assembly’s Beit Din (religious court) who would then direct the husband to acquiesce. Should the husband continue to refuse, the Beit Din would have the authority to assess financial penalties until the husband relents. Assuming this clause would be enforceable in civil court (which seemed to be taken as a given at the time), then the secular courts could effectively compel the husband to “do what the Jewish court has instructed” (B. Gittin 88b), thereby disincentivising prolonged recalcitrance.

The Orthodox Rabbinate rejected the halakhic validity of the Lieberman Clause outright, though few would bother offering formal rebuttals. One notable exception was Rabbi Norman Lamm who even acknowledged the intellectual obligation of Orthodox Rabbis to justify their opposition.³ Rabbi Lamm’s argument consisted of two main objections. The first contested the halakhic legitimacy of any Conservative Beit Din, stating

“How can Orthodox Jews – or, for that matter any intellectually honest person – be expected to recognize the authority of an ecclesiastical court which denies (or, at the very least, seriously questions) the origin and hence the authenticity of the very Halakhah in whose name it presumes to speak and whose tenets it seeks to interpret?” (Lamm, 1959:94)⁴

Secondly, by including the threat of financial penalties, the Lieberman Clause employed an “asmakhta” – a contractual condition which, by virtue of its particular uncertainty, would render the acquisition invalid.⁵ Thus the Orthodox rejected the Lieberman Clause and would not publicly endorse a significant standardized halakhic alternative for nearly forty years.⁶

In 1994, Rabbi Mordechai Willig drafted the “Halakhic Prenup,” which is currently touted as “the single most promising solution to the agunah crisis.” This prenuptial agreement is effectively an agreement of binding arbitration to a designated Beit Din (PDF). In this legal document, the couple agrees to refer divorce disputes to the predetermined Beit Din with the acknowledgment that the Beit Din may impose financial penalties on either party. By using the legalistic mechanism of binding arbitration, any decision by the Beit Din regarding monetary judgments would then be upheld by the civil courts. While there have been similar strategies as employed on an individual or limited communal basis (Levmore, 2009), the Halakhic Prenup is the first major attempt at promoting a standardized solution throughout Orthodox Judaism. ⁷

The Halakhic Prenup has been endorsed by several prominent Orthodox rabbis, but the similarities between the Halakhic Prenup and the universally rejected Lieberman Clause are striking. Consider the following chart which includes direct citations from both documents:

Even assuming the differences between the Lieberman Clause and the Halakhic Prenup are halakhically significant, the actual differences between them are trivial to impliment. It does not require a Torah Sage to suggest substituting a Conservative Beit Din with an Orthodox one, nor to propose writing a second document if one objects to altering the ketubah. One must wonder why it would take forty years⁸ for the greatest rabbinic minds of 20th century Orthodox Judaism to go from Column A to Column B.⁹

Given the absence of interdenominational cooperation or immediate alternative solutions by the Orthodox Rabbinate – Rabbi Lamm detailed at length why the Lieberman Clause was invalid but offered no suggestions on how it could be improved – it seems that Orthodox Judaism was more concerned with delegitimizing Conservative Judaism than it was with addressing the agunah problem.¹⁰ The “tradition” which it preserved was not that of Divine Will but of the culture of “Orthodox Judaism.” Simply put, a significant subset of Orthodox Judaism prioritized denominational politics over the lives and well-being of agunot, even where legitimate halakhic options were possible with neglible alterations.¹¹ To be sure, enacting major changes in Jewish practice requires widespread consensus especially those with ramifications as significant as the laws of divorce. Opposition based on the halakhic tradition is justified, but doing so in the same of cultural tradition, motivated by socio-religious politics rather than law imposes an inexcusable additional burden for the agunot who, in this war of religious culture, are reduced to collateral damage.¹²

If Rabbis wish to assert on the primacy of halakha over all other considerations, then certainly they can be held to no less of a standard.

Unaccountable Batei Din

The Lieberman Clause and Halakhic Prenup are only effective insofar as the Beit Din which the couple chooses is honorable, trustworthy, and competent. Unfortunately this is by no means a given. In a recent interview with Ami Magazine, Rabbi Herschel Schachter castigated the current Beit Din System for rampant corruption.

Q: Would you call then the problem in the bais din system a crisis?
A: It’s worse than a crisis. They tell me that there is a prominent talmid chacham in Flatbush who tells his baalei battim to go to a secular court because they stand a better chance of yoshor [justice] in a goyishe [non-Jewish] court than in a din Torah. If you ask him, he’ll deny it, but that’s what he tells people. Unfortunately, I think that the comment about yoshor is true.
…
Q: Do you have a problem with the borerim system [in which two of the dayanim are chosen by the litigants and the two dayanim choose a third]?
A: The borerim system is also a shanda. A lot of the borerim act like toanim. I was involved in a din Torah. The borer took shochad (bribes). I had to resign from the case. He felt insulted. It was before Rosh Hashanah, and he told me that he was not going to be mochel [forgive] me. I told him, “I don’t need mechila. You took shochad. You’re pasul to be a dayan.”It says in Shulchan Aruch that you can’t have one litigant pay his dayan and the other pay his dayan, unless, which Reb Moshe writes in a teshuva, it is clear that both are being paid the same amount, in which case each one can pay his dayan and they both pay the third. But that isn’t what happens. They don’t pay the same amount. The payment depends on how long each one bothers the dayan. So they don’t pay the same amount and it is true shochad.

Q: You mean that they are not allowed to charge for the private sessions, as well?
A: Of course not. That’s shochad! They pay more money for the private sessions, and then the dayan, instead of talking like a dayan, talks like a toain. I was once involved in a din Torah. One of the dayanim was making up his mind: “This side is wealthier than the other, so let him pay.” What way to talk is that? A din Torah of a penny has to be treated like a din Torah of a million dollars.

Q: Are you saying there is a problem with the dayanim?
A: Of course. Do you think that all of the dayanim are honest? Many are acting like toanim; many of the toanim are acting like criminals. They make up their minds in advance that their side has to win. I don’t walk into a din Torah with the attitude that my side always has to win. If I think my side is wrong, I’ll pasken against them. The Rosh in the beginning of Perek Zeh Borer says that people think that their dayan always has to side with them. He has to explore their position; that’s true. But not to invent reasoning out of nowhere. Once we had a din Torah here. It was over real estate in California where they had invested a couple of million dollars. We asked them, “Do you want a din Torah, or would you rather have a peshara [compromise]?”We told them that a peshara is not a fifty-fifty split. It is whatever yoshor dictates. They agreed. The din of peshara in this case turned out to be one hundred percent in favor of one person. That was the peshara. They thanked us. They shook hands with us, shook hands with each other. That’s the way it should be. Regrettably, dayanim today don’t judge with yoshor. [Emphasis added]

But even if a Beit Din is honest and operates with integrity, it can still be ineffectual. Consider the aforementioned case of Aharon Friedman and Tamar Epstein. On 8 September 2011 the Union of Orthodox Rabbis of the United States and Canada issued a judgement of contempt known as a seruv (PDF) against Mr. Friedman on the grounds that in addition to refusing to give a get to his wife Tamar, he ignored a “final warning” on 28 June 2011 to appear before that Beit Din: “He was requested to appear before the Beth Din for a final adjudication on the matter of his refusal as well as other matters but he refused to even respond to their request.”

Under many circumstances, refusal to appear before a Beit Din is justifiable grounds for a seruv. However, writing for the Washington Jewish Week on 12 January 2011, Rabbi Barry Fruendel explained why the Friedman/Epstein case is unusual.

What started as an ugly divorce needing a get for final resolution has become much more. Public protests, rabbis publicly arguing with Rabbis, New York Times article, viral coverage in other media, a harsh demand that the House Ways and Means committee (the husband’s employer) get involved, a public presence of Jewish religious issues in the halls of Congress that makes many of our co-religionists- especially those who work there- very uncomfortable, and painful words exchanged between members of this community, sometimes even between those in the same family, as this issue is discussed and debated.

What happened? Why isn’t this simple? The answer is because it is not the usual Agunah case even of the contemporary variety. Usually, in these cases, a husband is summoned to a court and refuses to comply. That leads to a siruv, and to what should be a virtually unanimous decision by the community to reject, protest and pressure the recalcitrant husband to give the get.

But that is not the case here. These two people were before a Bet Din in Baltimore, in fact they both signed that this court would adjudicate the issues between them including the get. For whatever reason after presenting the case but before a verdict, they both took some of these issues to secular court (a violation of Jewish law), and those issues were decided in that tribunal. However the get was not and could not be adjudicated in that forum.

At this time the Baltimore Bet Din is willing to continue the case, or by mutual agreement of the parties, allow it to go to another Bet Din. One or the other of the parties has not yet accepted these possible solutions that might well move the process forward to a conclusion. [Emphasis added]

Thus, while the Union of Orthodox Rabbis of the United States and Canada’s issued a seruv for Mr. Friedman refusing to respond to their Beit Din, it is clear he did in fact previously respond to a Beit Din, specifically the Beit Din of Baltimore. That Mr. Freidman ignored the request of the Union of Orthodox Rabbis shows that this second Beit Din was not chosen by “mutual consent,” but on 5 October 2011, The Vaad Harabannim of Greater Washington with Rabbi Freundel as Vice President, formally declared (PDF) Ms. Epstein an agunah regardless.

Several months ago a very difficult situation involving the unfortunate breakdown of the marital relationship between Aharon Friedman and Tamar Epstein became public within our community. At that time, the Vaad, after careful and thorough consideration, determined that (i) the dispute was pending before the Baltimore Beis Din; (ii) that the Baltimore Beis Din had retained its jurisdiction over the matter; and (iii) that no seruv (order) had been issued declaring Mr. Friedman in breach of the orders of the Beis Din. Accordingly, we indicated at that time that the circumstances did not then warrant our declaring Ms. Epstein and agunah. Since that time there have been new developments, most notably the issuance of a seruv (“Servuv”) against Mr. Friedman by the Beis Din of the Union of Orthodox Rabbis of the United States and Canada which now has jurisdiction over the matter. [Emphasis added]

I am not here to question the legitimacy of the current seruv from the Union of Orthodox Rabbis, nor doubt their claims of jurisdiction.¹³ However, what is clear is that Aharon Friedman and Tamar Epstein did agree to have their divorce resolved in the Beit Din of Baltimore.

Since Tamar Epstein is still an agunah, it is clear that the Beit Din of Baltimore failed in its assigned task. Let us assume, as Rabbi Freundel indicates, that what the Beit Din of Baltimore objected to was that the couple “took some of these issues to secular court.” This would imply that the Beit Din of Baltimore did not initially employ a binding arbitration agreement which would legally define their authority. Nor did the Beit Din of Baltimore issue a seruv against either party for contempt of Beit Din, and indeed the Vaad Harabannim of Greater Washington stated, “no seruv (order) had been issued declaring Mr. Friedman in breach of the orders of the Beis Din,” which ostensibly would include contempt of leaving the authority of the Beit Din.

Most importantly, as long as the Beit Din of Baltimore retained any jurisdiction of the case, it was in their power to issue their own seruv or use whatever means were at their disposal to ensure that at the very least a get would ultimately be given. If a Beit Din wishes to assert its religious authority, even to the point of imposing communal sanctions against individuals who deny this authority, then there must be rabbinic accountability to justify the fealty which a Beit Din demands. Otherwise no Halakhic Prenup or similar solution will have any effect in front of corrupt, negligent, or incompetent Batei Din.

Conclusions

The problem of agunot is serious, as are the consequences for permitting a halakhically married woman to remarry. But this is not a new problem; even the Talmudic sages recognized the difficulties of agunot and even responded with their own enactments, but within their parameters of halakhah.¹⁴ Today the Halakahic Prenup is gradually gaining acceptance and usage, correcting the politics of the past. Communities such as the Hebrew Institute of Riverdale have formally changed their constitution to exclude recalcitrant spouses and organizations like ORA are taking the initiative in publicly protesting recalcitrant husbands who may otherwise disappear into the communities.

But there is also much work to be done by the Orthodox Rabbinate, particularly regarding educating ethical behavior. Rabbi Moshe Tendler once said in shiur that the problem of agunot really begins in youth, “we teach children to be more concerned with not touching Shabbos candles than with not touching your neighbor’s wife.” Orthodox Judaism has demonstrated it can selectively ostracize and exclude individuals based on religious transgressions, and it stands to reason it can educate from an early age what behaviors are unacceptable to an observant Jew. I do not expect all marriages to last or all divorces to be amicable. But just as many Orthodox Jews would never consider eating non-Kosher or violating Shabbat, to the point of adopting stringency after stringency, we can educate our community to automatically reject gratuitously spiteful thoughts and actions in divorce.¹⁵ This will obviously take time, effort, and some degree of cooperation, but the benefits in the long run are obvious, to the point it ought to become a Rabbinic imperative for education.

Rabbis are first and foremost educators, defenders, and personal exemplars of Torah. This would ostensibly include prioritizing halakhah over more lesser considerations and ensuring that we are extremely careful and diligent with whatever authority we do have. Some Rabbis have responded to the challenge of agunot, and have become important advocates not only for the women but for communal awareness and action. But if there is a legitimate criticism with the Rabbis regarding agunot, it should not be for when we do jobs, but rather when we do not.

Works Cited
Bleich, J. David. “A Suggested Antenuptial Agreement: A Proposal in Wake of Avitzur.” Journal of Halacha and Contemporary Society 7 (1984): 25-41.
Broyde, Michael J. “The 1992 New York Get Law.” Tradition 29.4 (1995): 5-13.
Epstein, Louis M. “A Solution to the Agunah Problem.” Proceedings of the Rabbinical Assembly (1930): 83-90.
Lamm, Norman. “Recent Additions to the Ketubah: A Halakhic Critique.” Tradition 2.1 (1959) 93-118.
Levmore, Rachel. “Rabbinic Responses in Favor of Prenuptial Agreements.” Tradition 42.1 (2009) 29-49.
Shapiro, Marc B. Saul Lieberman and the Orthodox. Scranton: University of Scranton Press. 2006.

1. While the majority of agunot are women whose husbands refuse to give their wife a get, it is not impossible for a woman to be obstinate in agreeing to be divorced. Rarely does the husband in these cases elicit the same sympathy as a woman who is an agunah who is only “chained” due to the inherent inequality in the halakhot of divorce which require the husband to willingly issue the divorce while the wife’s consent is not needed, nor can she initiate the divorce (M. Yevamot 14:1).
2. I do not wish to categorize agunot as martyrs to a cause, but to note the religious commitment required for one to choose to remain an agunah is rarely acknowledged let alone supported.
3. “The leaders of Orthodoxy have stated unequivocally that the amendment is not halakhically valid. Unfortunately, no detailed refutation by a competent scholar has been published to date. This essay, without laying claim to scholarly thoroughness is an attempt to make good, in an elementary and popular manner, a debt that the Orthodox rabbinate owes to the American Jewish public.” (Lamm, 1959:94)
4. Regardless of the veracity of this specific charge as it applied to the entirety of Conservative Judaism in the 1950’s, the assumption that the Rabbinical Assembly was not a “halakhic” organization is not entirely unfounded. For just one example, in the Rabbinical Assembly’s 1954 convention, the same one in which the Lieberman Clause was discussed, the Rabbinical Assembly concluded (albeit begrudgingly) that Rabbis who officiate a wedding between a kohein and a divorcee are not violating their Rabbinic duty. However, while this marriage is halakhically valid, it is not only prohibited by Jewish law but it is one of the few types of unions which the Talmud explicitly mandates coercing the husband to issue a divorce (B. Ketubot 77a, Tosafot Ketubot 70a s.v Yotzi V’Yitein Ketuba). An attempt in the 1950’s to create a joint Conservative-Orthodox Beit Din ultimately failed for similar reasons (Shapiro, 44-46).
5. In this case, the “uncertainty” would be the divorce itself and the hypothetical fines. The details and application of this complicated halakhic concept are explored at length in Rabbi Lamm’s article. Ironically, the first objection to the asmakhta was not raised by the Orthodox, but by rabbis within the Rabbinic Assembly. Rabbi Jacob Agus, perhaps best known for his dispensation permitting driving to synagogue on Shabbat, argued at the 1954 convention, “However, there is one sentence in this formulation which I believe should be brought forth to this convention for action, and that is the sentence calling for compensation. I have opposed it before, and I believe it will arouse the greatest amount of resentment when it is applied, and I do not believe it is essential to the body of the takanah. I should, therefore like the Steering Committee to obtain the feeling of the members of this Rabbinical Assembly at this convention before it is applied. If this sentence is removed, I do not believe that anybody will object to the takanah.”
6. I am discounting support for the New York “Get Laws” of 1983 and 1992 which prohibited “barriers to remarriage” as they were not strictly speaking “halakhic” solutions (Broyde, 1995).
7. At least in the United States. I have been told of work being done for similar legal forms for other countries.
8. According to the official website of the Halakhic Prenup, the core concepts of the agreement allegedly date back to 1664 (and perhaps even earlier) which begs the question why it fell into disuse over 330 years. Furthermore, a resolution similar to the Halakhic Prenup was adopted in Morocco in 1953, the year before the Leiberman Clause was introduced, and was reaffirmed in 1981 by Rabbi Shalom Mashash, then Chief Rabbi of Jerusalem (Levmore, 2009 31-34). Thus the politics in play are not only denominational, which can be attributed to ideology, but cultural. Unless Ashkenazi Rabbis believe, as Rabbi Lamm charged regarding Conservative Judaism, that their Middle Eastern colleagues “deny” or “seriously question” the halakhah, then the Ashkenazi dismissal of Middle Eastern halakhah is based on a cultural “tradition.” Eventually, the suggestion to use an arbitration agreement was proposed by Rabbi J. David Bleich in 1984, one year after the first New York Get Law (Bleich, 1984), despite arbitration being gaining usage in the late 1950’s.
9. It must be noted that despite the impressive rabbinic endorsements, the Halakhic Prenup is not universally accepted by all Orthodox Jews, and for whom there is no ideological inconsistency. The main objections to the Halakhic Prenup center around the financial component, which may be perceived as a form of illegal halakhic coercion which would invalidate the get (B. Gittin 88b). However, as Rachel Levmore demonstrated, there is halakhic precedent justifying similar financial penalties (Levmore, 2009). My point is that if the Halakhic Prenup is so obviously valid and the Lieberman Clause so obviously flawed on the merits, someone ought to have been able to easily fix those problems.
10. A congregant of mine reported that Rabbi Joseph Soloveitchik stated in a lecture that the only problem with the Lieberman Clause was that it came from the Conservatives.
11. This would also apply to intradenominational politics where ideas are only valid if the “correct” depending on the originating community or “gadol,” regardless of their intrinsic halakhic validity.
12. In 1930, Rabbi Louis Epstein of the Rabbinical Assembly recounted one such reaction by a “rabbi of great fame” who actually defended keeping women agunot saying, “when America entered the war, it knew that with war would come widows and orphans and cripples. Yet in defense of country and national honor they took these things for granted. Our country and our honor is our Torah; why not take agunot for granted in our defense of the Torah?” (Epstein, 1930:88)
13. Through personal communications, I was informed of the complicated narrative which led to the Union of Orthodox Rabbis’s involvement. While these are certainly important facts in understanding this particular case, I will not elaborate further due to the lack of available documentary support and the tangential bearing on my ultimate point.
14. See for example B. Gittin 19b, 26b, 33a, Y. Gittin 1:1 43a, 4:2 45c
15. Ideally this would apply to all aspects of life, but you have to start somewhere.