(2018/5778)

Introduction to the Case

Rav Shlomo Amar (the Rav Rashi of Jerusalem) was involved in a case of a Kohein marrying the daughter of a Jewish woman and a non-Jewish man. The district Beit Din of Rechovot ruled strictly, but Rav Amar, while sitting on the State of Israel Supreme Rabbinic Court of Appeals, overturned their decision,  and ruled leniently due to a unique circumstance.

Gemara

The Gemara (Yevamot 45b) establishes that the child of a non-Jewish man and a Jewish woman is Halachically Jewish and considered legitimate. No mention is made, however, of the daughter’s possible ineligibility to marry a Kohein.

Rishonim and Shulchan Aruch

Various Rishonim debate how to interpret the Gemara’s silence regarding the daughter’s disqualification to marry a Kohein.  The Rambam (Hilchot Issurei Biah 15:3) permits the daughter to marry a Kohein, the Rosh (Yevamot 4:30) forbids her to marry a Kohein, and the Rif (Yevamot 15a) is inconclusive. The Ramban (Yevamot 45a) is similarly uncertain, but adds that if a Kohein marries such a woman, they are not required to divorce.

The Shulchan Aruch (E.H. 4:5 and 7:17) rules that the daughter may not marry a Kohein, in accordance with the view of the Rosh. However, the two premier commentaries on the Even Ha’Ezer section of the Shulchan Aruch, the Beit Shemuel (4:2 and 7:39) and the Chelkat Mechokeik (7:26), rule in accordance with the Ramban that if the couple is already married, we do not require that they divorce.

Acharonim

The Acharonim debate whether the strict opinions in the Machloket cited above believe that it is an Issur De’Oraita (biblical prohibition) or an Issur DeRabanan (rabbinic prohibition) for a Kohein to marry such a woman. The Mishneh LaMelech (Hilchot Issurei Biah 17:7) and Sha’ar HaMelech (Hilchot Issurei Biah 15:3) believe that it is an Issur De’Oraita. But the Chelkat Mechokeik (ad. loc.), Rabi Akiva Eiger (Teshuvot Rabi Akiva Eiger no. 91), the Maharshal (Teshuvot Maharshal n. 17), the Beit Meir (4:5), and the Rama MiPano (Teshuvot Rama MiPano no. 124) rule that the prohibition is rabbinic in nature. Among twentieth-century authorities, Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 1:5) rules that it is an Issur De’Oraita, while Rav Ovadia Yosef (Teshuvot Yabia Omer 7 E.H. 9) and Rav Shalom Mesass (Teshuvot Shemesh UMagein 3 E.H. 58) rule that it is an Issur DeRabanan.

This debate carries serious ramifications, as it impacts whether one should be lenient or strict regarding the implementation of this Halachah. The opinion that it is only an Issur DeRabanan is supported by the opinion that that we do not force such a couple to divorce. Since it is a mere Issur DeRabanan, we do not impose the hardship of separating a couple that is already married.

Civil Marriage

One ramification of this dispute is the debate between Rav Moshe Feinstein and Rav Mesass as to whether a rabbi may officiate at a wedding of a Kohein to a daughter of a Jewish woman and a non-Jewish man, if the couple already had been married civilly and lived together for an extended period of time. Rav Moshe (ad loc.) forbids a rabbi to conduct such a ceremony, whereas Rav Mesass permits it.

This question depends on whether the Ramban’s ruling allows them to remain together given their circumstances.  Rav Moshe's based his approach on the overwhelming consensus of rabbinic opinions regarding a couple that is married in a civil ceremony as unmarried according to Halachah. Since the couple is not Halachically married, Rav Moshe forbids a rabbi to conduct a ceremony that will facilitate a sinful marriage.

Rav Mesass, on the other hand, believes that since only a Issur DeRabanan is involved, Halachah does not require the husband and wife to undergo the difficult process of separation. He understands the Ramban's ruling as permission to allow the couple to remain together if separation is too difficult. Rav Mesass even permits a rabbi to officiate at the wedding if the couple is already living together in sin, and they have not married civilly.  Rav Ovadia Yosef (Teshuvot Yabia Omer 10 E.H. 10:14) later in life upheld a ruling from Rav Messas in similar case. Rav Shlomo Amar, rules (Teshuvot Shema Shlomo 5 E.H. 8) in accordance with Rav Mesass and Rav Yosef.

The Rechovot Beit Din vs. Rav Amar the Appeals Beit Din

In 2006, a Kohein wished to marry a woman whose mother was Jewish but whose father was not Jewish. The couple had been living together (in sin) for approximately one and a half years. The district Beit Din of Rechovot denied the couple a marriage license, in accordance with the ruling of Rav Moshe Feinstein. Rav Amar, however, sitting on the Supreme Rabbinic Court of Appeals overturned the ruling and permitted the couple to marry.

Defending Rav Amar from Rav Bleich’s Criticism

Rav J. David Bleich concludes (Tradition Summer 2007) that the ruling of the Court of Appeals “strikes this writer as an abuse of appellate power,” since it ruled simply that Rav Mesass and Rav Amar's rulings should be followed instead of Rav Moshe's. He writes that Halachah “bars exercise of purely subjective discretion in choosing one set of precedents over another” as considerations for a higher authority to reverse a decision of a lower authority.

Torah Academy of Bergen County alumnus Rav Avi Levinson defends Rav Amar.  He reasons that presumably the couple in this case was Sephardic; hence, there is no compelling reason for them to abandon the rulings of the leading contemporary Sephardic rabbis in favor of that of Rav Moshe.

Conversation with Rav Amar on Shabbat Nachamu 5777

I asked Rav Amar during his visit to Congregation Shaarei Orah, the Sephardic Congregation of Teaneck, if Rav Avi Levinson was correct in his assumption that in this case the husband was Sephardic.  Rav Amar confirmed that indeed this was the case. He added that it is most appropriate for a Beit Din to issue rulings for a Sephardic Jew in accordance with the rulings of the leading Sephardic authorities, such as Rav Yosef and Rav Messas.  Rav Amar explained that he maintains the highest level of respect for Rav Moshe Feinstein, but that most Acharonim disagree with him and rule that a Kohein marrying a daughter of a Jewish woman and non-Jewish man is violating only an Issur DeRabanan.

Rav Amar gave me a most precious gift - an inscribed volume of his most recent collection of Teshuvot on marriage topics entitled Melechet Shlomo .  In responsum number 45, Rav Amar considers the possibility of permitting a marriage of a Kohein who is merely engaged to a daughter of a Jewish woman and non-Jewish man.  Even though Rav Messas permits a couple that is already civilly married and even if they are merely living together, Rav Amar is willing to consider extending his permissive ruling even if the couple is only engaged.  He is cautious, though, and refrains from issuing permission to marry, in his role as Jerusalem’s chief rabbi. He writes that a Beit Din must carefully investigate the situation, and determine whether it is appropriate to apply his lenient approach in each specific circumstance.  

Conclusion - Rav Amar: A Balanced Posek

One should not receive the impression that Rav Amar is a hyper lenient Posek.  Indeed, in many of the rulings he issued to me during his visit to Teaneck, he adopted a firm stance and felt that one should not readily “cave,” even in a challenging circumstance.  For example, Rav Amar declined to permit a patient who was discharged from a hospital on Shabbat or Yom Tov, to ask a non-Jew to drive him home (to avoid the need to remain in the hospital lobby for the duration of the Shabbat or Chag).

I put forth the argument that hospitals host many infections and that recently released patients are frail and susceptible to these infections and therefore there is significant need to justify the Issur DeRabanan to ask a non-Jew to drive the released patient home.  Rav Amar felt that it was not permitted even if the patient is elderly! Rav Amar in this and other instances explained that it is important to hold firm and not injudiciously issue lenient rulings.

This made abundantly clear that Rav Amar adopts a wise and balanced approach to Halachah.  In the case of the daughter of a Jewish mother and non-Jewish father, the need to rule leniently is most compelling.  In less dire situations, we must steadfastly cling to the precious norms of Halacha, and not be too quick to rush to adopt a lenient approach.