(2007/5768)

As any Kohen will tell you, it is not easy to be a Kohen.  The special restrictions the Torah imposes on a Kohen are most certainly challenging, especially in regard to restrictions on which women the Torah permits him to marry.  These restrictions are particularly challenging for those rabbis who serve non-observant congregants.  These rabbis find it challenging simply to insure that congregants choose Jews as life partners.  To further restrict a congregant’s choice due to being a Kohen is not an easy demand to make.

The difficulty is further compounded in Medinat Yisrael, where the State of Israel Orthodox Rabbinate (Baruch Hashem) has exclusive jurisdiction over personal status matters such as marriage and divorce.  Imposing restrictions on Kohanim who are not observant and whose families have not been observant for two or three generations poses an enormous challenge to Israeli Rabbanim.  There is great pressure to find room for leniency, and some Rabbanim indeed try to find such grounds.  Others apply this Halacha without special consideration of the difficult circumstances.

In this series, we shall present an example of this phenomenon by exploring the debate as to whether a Kohen may marry the daughter of a Jewish woman and a non-Jewish man.  We shall deal with a specific instance in which the district Beit Din of Rechovot ruled strictly regarding this question and the State of Israel Supreme Rabbinic Court of Appeals overturned this decision and ruled leniently due to a special circumstance.  Rav J. David Bleich voices criticism of the Appeals Beit Din’s decision in an essay published in the summer 2007 issue of Tradition.  We shall present this issue somewhat differently than Rav Bleich and will seek to justify the actions of the Appeals Beit Din.

Gemara

The Gemara (Yevamot 45a) presents two approaches regarding the status of a child born to a Jewish mother and a non-Jewish father.  Some believe that the child is Jewish but is a Mamzeir (illegitimate child) due to the fact that the child is produced by an illicit relationship.  Others maintain that the child is Jewish (see Pitchei Teshuvah E.H. 4:1) and legitimate.

Nevertheless, even the latter opinion believes that a daughter from such a union is disqualified from marrying a Kohen.  They reason that if a daughter of a Kohen Gadol and a widow is disqualified from marrying a Kohen, Kal VaChomer (how much more so) a daughter of a Jewish woman and non-Jewish man should be ineligible to marry a Kohen.  The Kal VaChomer stems from the fact that the prohibition of consorting with a non-Jew is much more severe than that of a Kohen marrying a widow.  No dissenting opinion is presented regarding the daughter marrying a Kohen.

The Gemara (Yevamot 45b) concludes that the Halacha is established that the child of a non-Jewish man and a Jewish woman is legitimate.  No mention is made, though, of the daughter’s possible ineligibility to marry a Kohen.

Rishonim and Shulchan Aruch

The Rishonim debate how to interpret the silence of the conclusion of the Gemara regarding the daughter’s disqualification to marry a Kohen.  One approach believes that the Gemara in its conclusion rejects the clause disqualifying the daughter to marry a Kohen, while a second approach argues that the conclusion found it unnecessary to address this issue, since it was not a matter of dispute in the earlier section of the Gemara.

The Beit Shemuel (4:2) summarizes the opinions as follows:  the Rambam (Hilchot Issurei Biah 15:3) permits the daughter to marry a Kohen, the Rosh (Yevamot 4:30) forbids her to marry a Kohen, and the Rif (Yevamot 15a) is uncertain about this matter.  The Ramban (Yevamot 45a) is similarly uncertain but adds that if a Kohen marries such a woman, we do not require them to divorce.  The Ramban then appends that the son of such a union is a “Safeik Chalal,” one whose status as a Kohen is in doubt.  For a thorough review and analysis of the opinions of the Rishonim on this issue, see Rav Yechiel Yaakov Weinberg’s Teshuvot Seridei Eish (3:8 in the original edition) and Rav Yaakov Breisch’s Teshuvot Chelkat Yaakov (3:22 in the original edition).

The Shulchan Aruch (E.H. 4:5 and 7:17) rules that the daughter may not marry a Kohen, in accordance with the view of the Rosh.  However, the two premier commentaries to the Even HaEzer section of the Shulchan Aruch, the Beit Shmuel (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 them to divorce.

Rav Hershel Schachter (in a Shiur delivered at a convention of the Rabbinical Council of America) related that a certain rabbi once was invited to a marriage of a Kohen to a woman whose mother was Jewish and whose father was non-Jewish.  The rabbi suggested that he could attend the meal, since by that time the couple is already married and we do not order them to divorce (as per the Beit Shmuel and Chelkat Mechokeik’s view).  Rav Schachter, though, cites that Rav Yosef Dov Soloveitchik forbade the rabbi to attend even the meal portion of the event, since by doing so he would lend legitimacy to a marriage that should not have occurred.

Acharonim

The Acharonim debate as to whether the strict opinions believe that it is a biblical prohibition or a rabbinic prohibition for a Kohen to marry such a woman.  The Mishneh LaMelech (Hilchot Issurei Biah 17:7) and Shaar HaMelech (Hilchot Issurei Biah 15:3) believe that it is a biblical prohibition.  On the other hand, the Chelkat Mechokeik (ad. loc.), Rabbi Akiva Eiger (Teshuvot Rabbi Akiva Eiger number 91), the Maharshal (Teshuvot Maharshal number 18), the Beit Meir (4:5), and the Teshuvot Rama MiPano (number 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 a biblical prohibition, while Rav Weinberg (ad. loc.), Rav Breisch (ad. loc.), Rav Ovadia Yosef (Teshuvot Yabia Omer 7 E.H. 9) and Rav Shalom Mesass (Teshuvot Shemesh UMagein 3 E.H. 55 and 58; Rav Mesass was the highly respected Sephardic chief rabbi of Jerusalem whose rulings are considered authoritative by Moroccan Jews) rule that it is a rabbinic prohibition.

This debate carries serious ramifications, as it impacts whether one should be lenient or strict regarding the implementation of this Halacha.  The opinion that it is only a rabbinic prohibition fits well with the fact that we do not compel the couple to separate if already married.  Since it is only a rabbinic prohibition, we do not impose the hardship of separating a couple that is already married.  The Shaar HaMelech, though, explains that we do not compel a divorce since by doing so we might render the Get invalid, as there are opinions that permit the couple to be married.  (Compelling a man to give a Get when he is not obligated to do so invalidates the Get, as we explain in Gray Matter 1 pp. 3-7.)  According to the Shaar HaMelech, the couple should actually divorce; he believes that the Ramban means merely that Beit Din is not authorized to compel a Get.

Conclusion

Next week, we shall present how this issue was adjudicated in the State of Israel Rabbinic Courts.