(2016/5776)

Introduction

In our previous issue, we presented limitations regarding the practical application of Mamzeirut throughout the generations, which were implemented by Chazal and continue to be applied by modern Posekim such as Rav Moshe Feinstein and Rav Ovadia Yosef. In this week’s issue, we will conclude our discussion on the morality of Mamzeirut and begin with a review of Rav Ovadia Yosef’s rulings regarding this area of Halachah.

Rav Ovadia Yosef’s Rulings Regarding Mamzeirut

While Rav Moshe served as the primary address for resolving questions of Mamzeirut in the United States, Rav Ovadia Yosef served this role in Israel. In a ruling Rav Yosef issued as a judge on Israel’s Rabbinic Court of Appeals (Teshuvot Yabia Omeir 10 Even HaEzer 13), he presents the reason the Rabbinic Court of Appeals rejected the ruling of a District Beit Din and rejected DNA as evidence of paternity.

Rav Ovadia explains that just as the consensus view among Dayanim is to consider blood tests inadmissible evidence in Beit Din, so too Dayanim should reject DNA tests as proof in Beit Din. In this ruling, Rav Yosef closed the floodgates of Mamzeirut that could have opened as a result of the acceptance of DNA as evidence of paternity[1]. Rav Yosef applies the Gemara’s principle of “Rov Be’ilot Achar HaBa’al” even against DNA evidence[2]. This has become the accepted practice of Israel’s chief rabbinate.

Another major ruling of Rav Yosef is a long response (Teshuvot Yabia Omeir 8 E.H. 12), written at the behest of the Ashkenazic Chief Rabbi Yehuda Unterman, permitting marriage of non-Karaite Jews to Karaite Jews. Karaites are a sect of Jews who more than one thousand years ago broke from mainstream Judaism, arguing that only the Written Torah is binding.

Halachic concerns for Mamzeirut have arisen in connection with the Karaites because, while their form of Kiddushin (marriage) may be valid according to Jewish law, their method of divorce does not accord with Halachah, as their Get is not in the form set forth by Chazal. Accordingly, a Karaite woman divorced by a Get administered by a Karaite court is not properly divorced and remains a married woman, so any child she bears to another man whom she marries on the basis of a Karaite Get is a Mamzeir.

Since it is impossible to determine who, throughout the generations, remarried on the strength of such invalid divorces, Rema (E.H. 4:37) casts the suspicion of possible Mamzeirut on all members of that community. Radbaz (Teshuvot 73 and 796), however, did permit marriages between Karaites and Rabbinate Jews on the grounds that the Kiddushin of the Karaites are also invalid according to Halachah, as they are deemed to have taken place without witnesses. Karaite witnesses of the Kiddushin are disqualified according to Halachah due to their heretical views and observance of Yamim Tovim on the wrong dates[3]. Thus, according to Radbaz, Mamzeirut is not attached to a child of a woman who married, divorced, and then remarried in accordance with Karaite practice, since she is regarded as never having been married at all.

Rav Ovadia Yosef argues at length in support of Radbaz’ ruling, and his ruling has been adopted by Israel’s chief rabbinate. In a similar fashion, Rav Yosef ruled that Ethiopian Jews are not considered Mamzeirim, despite the fact that their Gittin did not conform to Halachah (Teshuvot Yabia Omeir 8:11).

Continuing the Tradition – Rav Gedalia Dov Schwartz, Rav Shlomo Amar and Rav Asher Weiss

The newer generation of Posekim has continued in the path set by its predecessors. Rav Gedalia Schwartz, the Av Beth Din (chief justice) of the Beth Din of America and the Chicago Rabbinical Council, continues in the path set by Rav Moshe. Rav Schwartz, a true paradigm of an extraordinary Torah scholar, an exemplary Yerei Shamayim and gentleman of the highest order, is often called upon to adjudicate potential situations of Mamzeirut. I have posed at least a dozen such questions to him in the past twenty years.

Rav Schwartz rules in the tradition of Rav Moshe Feinstein regarding Mamzeirut (as well as other areas of personal status). In one memorable case, Rav Schwartz spared two children from the status of Mamzeirut (their mother married the children’s father without having received a Get from her first husband) based on the fact that the mother’s first marriage was conducted by a Conservative rabbi. Rav Schwartz ruled that this rabbi was Halachically an invalid witness due to his membership in the Rabbinic Assembly (the Conservative rabbinic organization), despite the fact that the rabbi observed Jewish law[4]and told me that he believed in Rambam’s thirteen principles of faith, in accordance with Rav Moshe Feinstein’s ruling that we presented in our prior issue.

In another case, Rav Schwartz ruled leniently regarding a woman who told me that her mother remarried without a Get. The daughter reported that her mother told her that she had married in a secret[5]Chuppah in Vilna during the early 1970’s and then subsequently remarried another man without having received a Get from her first husband. The daughter was from the second marriage and wondered if she was a Mamzeret.

Rav Schwartz, in response, invoked the Gemara (Yevamot 47a) which relates the following incident: A man who was accepted as a legitimate convert in the Jewish community confided to Rabi Yehuda that a Beit Din was not present at the time of his conversion (and therefore his conversion is invalid). Rabi Yehuda asked if there were witnesses who could corroborate his assertion. The gentleman responded “no.” Rabi Yehuda asked if he had children. The man answered “yes.” Rabi Yehuda then said, “You are believed to disqualify yourself but not your children.”

Rav Schwartz noted that if the mother had no witnesses to support her claim that she was married with a Chuppah, then she lacks Halachic credibility regarding her daughter’s personal status. Moreover, Rav Schwartz explained that it was highly unlikely for a Chuppah conducted in Vilna in the early 1970’s to have been performed in accordance with Halachah. Thus, Rav Schwartz concluded that the daughter was not a Mamzeret[6].

In Israel, former Sephardic Chief Rabbi Rav Shlomo Amar and Rav Asher Weiss continue the tradition of Rav Ovadia Yosef. Examples of Rav Amar’s rulings in regards to Mamzeirut may be found in his Teshuvot Shama Shelomo (4:E.H. 2 and 6 and 5:E.H. 5), and examples of Rav Weiss’ approach to Mamzeirut appear in Teshuvot Minchat Asher (1:72-75).

When a Solution is Unavailable

Although Chazal and later Posekim have attempted to limit Mamzeirut, they did not entirely eliminate its application. See, for example, Teshuvot Igrot Moshe (Even HaEzer 1:53), where Rav Moshe was unable to avoid ruling that a certain individual is a Mamzeir. Rav Moshe was presented with the following tragic question: A husband had refused to give a Get to his wife, and the woman subsequently remarried in a civil ceremony and had a child with her second husband. A rabbi proposed to Rav Moshe that perhaps the child is not a Mamzeir, because the couple engaged in intense fights and the husband was incarcerated immediately following the first marriage. The rabbi proposed that the first marriage should be considered invalid because had she known that her husband woul  d engage in such serious misbehavior, she never would have married him. Rav Feinstein rejected this proposal as untenable and ruled that the child is certainly a Mamzeir. Rav Feinstein wrote that the proposal is "certainly incorrect because any problem that arises subsequent to the marriage cannot serve as a reason to view the marriage as having been entered on a fraudulent basis."

Rav Yosef Dov Soloveitchik is quoted as clarifying (in a speech which is presented in Jewish Action Summer 2011) that Judaism has historically been and continues to be responsive to the needs of both the community and the individual. However, the Rav taught, Judaism has its own orbit and its own speed, and it responds to a challenge with its own criteria and principles. The Rav followed the rabbinic traditions of his grandfather, Rav Chaim, who believed in striving for leniency based on the personal needs of the inquirer. However, even Rav Chaim’s skills had limits. When you reach the boundary of Halachah beyond which you dare not pass, you must say, “I surrender to the will of the Almighty[7].

Conclusion

The issue of Mamzeirut weighs very heavily on those involved with matters of personal status, such as Get administrators. It is our responsibility to on the one hand honor and ensure fidelity to God’s law to the best of our ability, while at the same time try to be kind and sensitive to people’s needs. We must and do take extraordinary pro-active steps to avoid Mamzeirut[8] and leave no stone unturned in our efforts to resolve questions of Mamzeirut.

Our moral conscience drives us to strive to discover that someone is not a Mamzeir whenever it is Halachically justifiable to do so. However, just as not every physician is able to cure every patient and must bow to the divine decision, we are not always able to find a Halachic basis to relieve someone of the status of Mamzeirut. We wholeheartedly share the approach of Rav Dr. Wurzburger that “Compliance with the demands of the highest possible moral authority, which combines omnibenevolence and omniscience, is bound to lead to the best possible consequences, even in situations where divine imperatives clash with our ordinary ethical rules that generally bring about the greatest good.”

[1] For a longer discussion of this issue, see Gray Matter 3:168-181.

[2] Rav Yosef Shalom Eliashiv issued a similar ruling (Kovetz Teshuvot 1:134).

[3] Karaite Jews did not accept the set calendar established by Hillel. Instead they still establish the months by witnesses’ sighting the new moon.

[5] Religious ceremonies were forbidden in the former Soviet Union.

[6] Rav Moshe Feinstein (Teshuvot Igrot Moshe Even HaEzer 4:22 and 24) rules similarly in comparable circumstances.

[7] There have been, similarly, some situations which I have submitted to Rav Gedalia Schwartz where he was unable to arrive at a lenient ruling. In addition, a number of years ago I was notified by the London Beth Din that a particular woman was a Mamzeret.

[8] Extraordinary examples of this are the Rabbanim who travel throughout the world to ensure that all who need Gittin have their needs settled in accordance with Halachah.