(2010/5770)

With great trepidation we begin to present the great debate of 2008 between two of the greatest Dayyanim (rabbinic judges), Rav Shlomo Dichovsky and Rav Avraham Sherman, regarding nullification of conversions.  The trepidation stems from not only the great respect owed to these outstanding Rabbanim but also from the profound implications of this debate.  In this column, we have presented quite a number of debates between Rav Dichovsky and Rav Sherman on issues of major importance.  Nonetheless, this particular debate does not impact only the Jewish status of a mother and her children in the Ashdod area but also thousands of individuals who have converted through the special conversion courts established by the Israeli Chief Rabbinate.  Thus we begin our discussion of this matter with full awareness of sensitivities to the variety of opinions regarding an issue that has great impact not only on our generation but on generations to come.

The Special Conversion Courts

The great immigration from the former Soviet Union to Israel beginning in the late 1980’s has given rise to an enormous social and Halachic problem.  A great number of these immigrants are either not Jewish or only possibly Jewish.  They were granted Israeli citizenship under Israel’s Law of Return, which grants automatic eligibility for citizenship even to one who is married to a Jew and even to one who has only one Jewish great-grandparent.  The situation of these immigrants is particularly difficult, given that Israel is a Jewish State, and, therefore, they wish to convert to Judaism.  Many also regard themselves, out of sheer ignorance of Torah, as “Jewish” before they moved to Israel, and they very much wish to be regarded as Jewish by mainstream Israeli society.  The problem is that most of these people do not wish to be observant of Torah law, which creates a serious Halachic problem.

We noted in an essay archived at www.koltorah.org that the overwhelming majority of classic and modern Halachic authorities view Kabbalat Mitzvot, acceptance of Mitzvot, as a non-negotiable component of conversion.  Thus, converting people who are not committed to observing the Torah and its commandments constitutes a very serious problem.  In an attempt to ameliorate this difficult situation, Israel’s chief rabbinate established special rabbinic courts for conversion.  According to media reports, the goal of these courts was to facilitate large-scale conversion of non-Jewish citizens of the State of Israel by somewhat relaxing the requirements of Kabbalat Mitzvot. 

The Ashdod Case of 2007

According to media reports, a convert and her Jewish-born husband were divorced according to Halachah but were denied a rabbinic court ruling that the couple were divorced.  The rabbinic court is reported to have ruled that it is highly questionable if the woman (and her children) was Jewish, and, therefore, they were not granted the document.  The rabbinic court went as far as to call into question all of the conversions administered by the special conversion authority due to the claimed lack of Kabbalat Mitzvot of the majority of those whom they converted.  The ruling went even further, arguing that the Dayyanim who sat on these rabbinic courts were disqualified to serve as rabbinic judges due to their adopting a lenient standard regarding Kabbalat Mitzvot.  Thus the Ashdod Beit Din called into question the validity of a conversion in which the individual, in fact, did commit to a Torah observant life and indeed lived as an observant Jew since the conversion.  The basis of this ruling is the requirement for the presence of a Beit Din during a conversion (Yevamot 46b and Shulchan Aruch Y.D. 268:3).

Rav Dichovsky’s Approach

The woman appealed the Ashdod Beit Din’s ruling to the rabbinic court of appeals in Jerusalem.  Rav Shlomo Dichovsky, a long time member of this special Beit Din, ruled in a number cases such as these (one such ruling appears in Techumin 29:267-280) that although he would not necessarily have administered many of these conversions, one cannot nullify the conversions BeDiEved (post facto).  While he agrees that Kabbalat Mitzvot constitutes an absolute requirement, Rav Dichovsky focuses on the fact that it is quite possible that during the actual moment of conversion, the immersion in the Mikvah, the convert sincerely accepted the yoke of Torah, even though he/she did not observe Mitzvot either before or after the conversion.  Rav Dichovsky writes, “Anyone who has been present at one time at a conversion is aware that it is a very emotional experience for all those in attendance, especially, of course, for the convert.  It is very likely that in that emotion of the moment of immersion that indeed she was fully committed to Torah observance and only later did she veer from the [Torah] path.”

Rav Dichovsky (following Rav Kook, Teshuvot Da’at Kohein number 153, cited in last week’s essay) even proves his argument from the fact that the entire Jewish People converted at Mount Sinai, as stated by the Rambam (Hilchot Issurei Bi’ah 13:1-3).  This conversion was recognized as valid by none other than Hashem, even though we (or at least some of us) worshipped the Eigel HaZahav only forty days after that great moment! 

Rav Sherman’s Criticism

 Rav Avraham Sherman strongly rejects Rav Dichovsky’s approach.  He argues, “The test of Kabbalat Mitzvot is not measured by that moment he makes the oral declaration that she accepts the Mitzvot, as Rav Dichovsky states.  The true test is the factual circumstances, the lifestyle of the convert before the moment of immersion.  Her shared life with a man who is removed from Torah and Mitzvah observance and her living in a society that does not observe Torah and Mitzvot, reflect what occurred at the moment of acceptance of Mitzvot.  There is no logic and one cannot even consider removing that specific moment from the continuum of a secular lifestyle devoid of a religious life of Torah and Mitzvot and declare that at that moment there was a revolutionary movement of entering the Jewish religion, its principles, beliefs and Mitzvot, when a moment after the conversion there is no expression and actualization of the religious movement that occurred as it were in her heart.” 

Rav Moshe Feinstein’s Ruling

Interestingly, Rav Moshe Feinstein (Teshuvot Igrot Moshe Even HaEzer 3:4) grappled with this issue in a 1968 ruling regarding a situation in Winnipeg, Canada.  A non-Jewish man was converted, apparently by an Orthodox rabbi, and married a Jewish woman in an apparently Orthodox ceremony.  The rabbi, however, did not require a Berit Milah, since the man had already been circumcised.  This stands in contradiction to Halachah, which regards this as an unresolved matter of dispute and thus requires ritual removal of blood (Hatafat Dam Berit) in order to avoid the dispute (Tosafot Shabbat 135a s.v. Lo Nechleku and Shulchan Aruch Y.D. 268:1).  The couple divorced civilly, and the husband disappeared and could not be located in order for him to give his wife a Get.  Since the local rabbis felt that it was impossible to obtain a Get for the wife, they asked Rav Feinstein if it was possible to invalidate the marriage by declaring the conversion null and void due to the man’s lack of Kabbalat Mitzvot. 

Rav Moshe writes that if an Orthodox rabbi administered the conversion, one should assume that he properly performed the ceremony in accordance with Halachah, even though the fact that he did not require Hatafat Dam Berit reflects poorly on his fidelity to Halachah.  Nonetheless, since in this case, “We saw that he did not refrain from the Torah’s prohibitions even one day,” it appears that he never accepted the observance of Torah and Mitzvot.  Rav Moshe, though, raises the possibility that perhaps, at the moment of immersion, he sincerely accepted Mitzvot, an argument similar to Rav Dichovsky’s. 

Rav Moshe seriously considers this as a possibility, as we find cases in Halachah in which we are concerned that a person experiences an immediate change of ideology.  Rav Moshe cites the ruling of the Shach (Y.D. 1:8) validating the Kashrut of an animal slaughtered by a Shocheit who subsequently converted to another religion later that very day.  The Shach assumes that the fact that he converted later that day does not reflect that the slaughterer was an apostate earlier in the day at the time of the slaughter (which would invalidate it).  Rav Moshe, however, notes that the Shach rules accordingly only because before the slaughter, the Shocheit was a Torah-observant Jew.  Thus, in a conflict between the Chazakah (status quo) prior to the slaughter and after the slaughter, the Shach rules we follow the prior Chazakah (Chazakah DeMeiIkara). 

Accordingly, Rav Moshe suggests that since the husband was not observant either before or after the conversion, one may assume that at the time of conversion, he remained the same as he was before and after that moment, and that it is obvious that the husband’s acceptance was insincere and therefore invalid, an argument similar to Rav Sherman’s.  Rav Moshe was inclined to invalidate the conversion but noted opinions that apply a current status quo retroactively (Chazakah DeHashta) only in a case in which the status quo was bolstered by a Rov (behavioral assumption created by what occurs in a majority of cases).  Thus, since no such Rov exists in regards to the case of the husband’s conversion one might not be able to project the husband’s non-observance of Halachah post conversion to what occurred at the time of conversion. 

Rav Moshe, however, permitted the woman in question to remarry without a Get due to a Sefek Sefeika, a double doubt – perhaps the conversion is invalid due his insincere acceptance of Mitzvot, and perhaps the conversion is invalid due to the failure to perform a Hatafat Dam Berit.  Most relevant to our discussion is that Rav Moshe considers Rav Dichovsky’s argument and regards it as a Safeik (unresolved question).  Thus, Rav Moshe grants some validity to both Rav Dichovsky’s and Rav Sherman’s arguments.  In practice, it would seem that one should regard a case of a conversion administered by Orthodox rabbis in which the convert engaged in wholesale violations of Halachah both before and after the conversion as a Safeik, possibly invalid, following Rav Moshe Feinstein. 

Invalidating the Rabbinic Courts

However, Rav Sherman’s arguments invalidating the members of the special conversion Batei Din appears to be incorrect.  Rav Sherman does not cite Rav Moshe Feisntein’s (Teshuvot Igrot Moshe 1:60) “limited justification” of those rabbis who adopt a lenient approach to conversion.  Even though Rav Moshe does not endorse the lenient approach, he does not even consider ruling that those rabbis who adopt the lenient approach are disqualified from serving as Dayyanim.  Moreover, in Teshuvot Igrot Moshe Y.D. 1:159, Rav Moshe refrains from counseling a practicing rabbi to spurn the lenient approach to conversion, “since there are many rabbis who accept converts such as these and thus I do not pronounce a prohibition [to perform such a conversion]….You should use your best judgment on how to act in this situation”. 

Rav Moshe understood the pressure faced by Orthodox rabbis serving less-than-Orthodox congregants, and while he does not endorse converting someone who, in all likelihood, will not observe Mitzvot, he does not condemn it either.  Orthodox rabbis are faced with the same quandary as to how to service the great numbers of non-observant Jews in the State of Israel.  While there are certainly different approaches to this issue, and the majority opinion favors the strict approach, those rabbis who adopt the lenient approach are nonetheless following a legitimate minority opinion in Halachah and should not be condemned as disqualified from service as a Dayyan. 

Moreover, even Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 1:35), who strongly advocates the strict approach to Geirut and criticizes those who adopt the lenient approach as violating Lifnei Iveir (causing others to sin), does not state that those who adopt the lenient approach are invalidated as rabbinic judges.  Moreover, the Dayyanim of the special conversion courts, to a great extent, are following in the footsteps of Rav Uzziel (cited in last week’s essay), who famously advocated a lenient approach to conversions.  It is shocking to find Rav Sherman condemning the rabbis of the special conversion courts as rejecting “all Halachic authorities.”  Rav Sherman himself considers Rav Uzziel as a legitimate Halachic authority, as he cites him on page 43 of his lengthy responsum.  Even Rav Moshe Shternbuch (Teshuvot VeHanhagot 1:611 and 4:230) does not rule decisively that the lenient rabbinic court judges are disqualified, since “they believe they are performing a Mitzvah.”   Indeed, Rav Gedalia Axelrod, a Rabbinic court judge in Haifa who adopts a very strict stance towards conversion standards (see his essay in Shurat HaDin volume three), rules that the lenient rabbis are not disqualified from service.  Rav Sherman adopts the harshest stance towards these lenient rabbis and seems to adopt a position that is beyond mainstream Halachic thought. 

Conclusion

The debate as to whether to recognize a conversion conducted by Orthodox rabbis for a convert who did not observe Torah either before or after conversion is regarded by Rav Moshe Feinstein as Safeik, possibly invalid. However, conversions performed by Orthodox rabbis who adopt the lenient approach conversion are not automatically disqualified. If one converted by a panel of rabbis who adopt the lenient approach observed Torah before and after the conversion, Rav Moshe Feinstein deems the conversion as unquestionably valid.