(2013/5773)

Kol Torah is proud to present the final article in a three part series by Shmuel Kadosh, an outstanding Talmid Chacham and scholar. In the prior weeks, we discussed the Ge’onim’s ruling that Jews who apostatize are not Jewish, and Rashi’s fierce response which maintained the apostate’s Jewish identity. In this final section, we will discuss how this debate continued in discussions about the status of Conversos (pejoratively referred to as Marranos) and into the present day.

V. The Codes

Rambam, like Rashi, maintains that an apostate is fully Jewish in all respects. He therefore rules (Mishneh Torah, Hilchot Ishut 4:5) that even one who worships idols willingly can effectuate fully valid marriages that require a divorce to terminate. Similarly, Rambam states that a Yevamah requires Yibum or Chalitzah even if the Yavam is an apostate (Mishneh Torah, Hilchot Yibum 1:6).

Rav Yosef Caro (1488-1575, Spain & Israel) follows Rambam in holding that an apostate is fully Jewish, and therefore rules that the marriage of an apostate is valid (Shulchan Aruch, Even HaEzer 44:9), that Yibum or Chalitzah is required even when the Yavam is an apostate (ad loc. 157:4), and that the children of an apostate are fully Jewish (ad loc. 44:9).

Rema (Rav Moshe Isserles (1520-1572), Poland), in his glosses to the Shulchan Aruch presents a more skeptical view of the apostate’s status. He holds that after the fact, a Yevamah who remarried without Chalitzah is not required to exit her marriage when the Yavam is an apostate, if she did not know at the time of her second marriage that her deceased husband had a brother. A Yevamah that is aware that her future husband has an apostate brother can enter into a conditional marriage that will be retroactively annulled if her husband dies with no children, obviating the need for Yibum or Chalitzah from her apostate brother-in-law (ad loc. 157:4).

Most interestingly, at the end of the laws pertaining to conversion to Judaism, Rema rules that an apostate who returns to the Jewish community is required by Rabbinic decree to immerse in the Mikvah and accept Divrei Chaveirot (commitment to fully observe Torah Law), before three individuals. (Shulchan Aruch, Yoreh Dei'ah 268:12). This ritual clearly parallels the convert’s entry into Judaism, which similarly involves immersion in the Mikvah, and the acceptance of the Mitzvot before a Beit Din of three. This requirement for a “reconversion” is further evidence of the Rema’s hesitation to characterize the apostate as fully Jewish.

VI. The Debate Regarding Conversos

The status of apostates was once again fiercely debated in Spain, Portugal, North Africa, and Italy in the 14th through 16th centuries. These communities were asked to decide the status of Conversos – Jews in Spain and Portugal who had been living as Christians, often for many generations. The responsa do not only address the first generation of Conversos who converted to Christianity, but also the status of their grandchildren and beyond. Posekim were asked about the Jewish status of those living as Christians for three or four generations, but who had a tradition that they were of Jewish descent.

Rashbash (Rav Shlomo ben Simeon Duran (1400-1467), Algiers), the Chief Rabbi of Algiers, maintained that Jewishness is irrevocable, and that the Conversos were fully Jewish. (Responsa Rashbash 89). The central proof text to his ruling is the Talmud’s discussion regarding the Ten Lost Tribes (Yevamot 16b). Rashbash argues that without the specific rabbinic decree abrogating the Jewish status of the descendants of the lost tribes, we would still be concerned that they are Jewish, even after living as gentiles for many generations. This demonstrates that Jewishness passes on even if one is not living a Jewish lifestyle.

Rabbi Yaakov ibn Habib (1455-1515, Spain & Greece), best known as the author of Ein Ya’akov, adopts a compromise position (Responsa of Rabbi Eliyahu Mizrachi 47). He argues that anyone who was born to practicing Jewish parents (i.e. “born in holiness”) is Jewish. However, the Jewish status of the descendants of an apostate is contingent upon the circumstances of their parents’ apostasy. The offspring of one who was coerced to convert are Jewish, whereas the children of one who converted willingly are gentiles.

Rav Habib bases his ruling on a distinction Rambam makes between one who willingly and consciously flouts Torah law, and one who is not observant out of ignorance, or because that is how he was raised. The former individual is a Mumar, apostate, and receives all of the punishments designated by the Torah for sinners. The latter individual is a Tinok SheNishbah (literally, an infant who was taken captive) and is not held responsible for his sinful behavior because he does not know any better (Mishneh Torah, Hilchot Mamrim 3:3). Rabbi Habib argues that such a distinction applies to the children of Conversos. Those whose parents converted willingly are not Jewish, whereas those who converted under duress have the status of a Tinok Shenishbah and are fully Jewish.

Maharshdam (Rav Shmuel de Medina (1505-1589) Salonika, Greece) takes a harder line than the previous two Teshuvot and rules that the descendants of Conversos are not Jewish (Responsa Maharshdam, Even HaEzer 10). In arriving at this conclusion, the Maharshdam relies upon the opinion cited by the Sefer HaIttur and subsequently by the Tur (Even HaEzer 44), which says that the marriages of an apostate are not binding. Although the Tur says this opinion is “not clear,” it must not be a completely rejected opinion or the Tur would not have cited it.

Maharshdam explains that the entire basis for the “apostates are still Jewish” school of thought is the Talmud’s statement (Sanhedrin 44a) regarding Achan, that “even though he sinned, he is still Yisrael.” But Achan committed only one sin - stealing from the consecrated property. Therefore, this source cannot be used as the basis for holding that an apostate - who violates all the commandments - is Jewish. Moreover, the ruling (Yevamot 47b) that the marriage of a backsliding convert is valid is similarly limited to circumstances where the convert sinned only occasionally - but not if he apostatized.

As we discussed earlier, Rambam (Mishneh Torah, Hilchot Ishut 4:5) holds that a Jew who worships idols willingly effectuates fully valid marriages that require a divorce to terminate. Maharshdam deflects this ruling by asserting that Rambam required a divorce to leave the marriage only out of doubt, but that Biblically, the marriage was invalid.

Maharshdam concludes his Teshuva by invoking the distinction implied in Rav Sa’adia Ga’on’s responsa between those who were “born in holiness” and those born to apostates (Responsa Sha'arei Tzedek 3, 1:54). Maharshdam argues that those who are born in holiness are Jewish even if they subsequently apostatize. In contrast, those born to apostates are not considered Jewish.

VII. Modern Attitudes Towards Apostates

Despite the definitive ruling by the Shulchan Aruch affirming the apostates’ Jewish status, contemporary Halachic authorities still debated whether they were truly Jewish. This section will discuss two responsa that address the issue.

The Klausenburger Rav (Rav Yekutiel Halberstam (1904-1994), Poland & Israel) addressed the status of an apostate in an encyclopedic responsa written in 1971 (Responsa Divrei Yatziv, Even HaEzer 62). He was asked about the status of the Kena’anim, a group of Israelis who sought to disaffiliate with Judaism and identify with the pre-Israelite origins of the Jewish people. The Kena’anim argued that all of Judaism was a product of the Diaspora (for example, the Torah was given outside of Israel), and therefore sought to abolish all Jewish ritual, including circumcision and the Hebrew alphabet.

Rav Halberstam corrals together all of the sources that cast aspersion upon the Jewish status of the apostate or his offspring, from the Ge’onim through the responsa concerning Conversos. From these, he concludes that there “are many opinions among the Poskim that a sinner has the status of a complete gentile.”

In addition to all of the precedent, Rabbi Halberstam advances a few original interpretations of Biblical verses to prove that the apostate is a gentile. In Devarim, Moses states: “Perhaps there is among you... one whose heart turns away from the Lord... And the Lord will separate him for evil, from all the tribes of Israel” (Devarim 29:17-20). These verses clearly state that one who turns away from God (i.e. an apostate) is “cut off and separated from Israel”- that is, he is not a Jew. Similarly, the verse in Shemot (19:5) states: “Now, if you hearken to my voice, and keep my covenant, you will be precious to me from among all the nations.” This implies that one who does not listen or observe is not more precious to God than the other nations, meaning that he is a gentile.

The final Teshuvah we will discuss is from Rav Moshe Feinstein (1895-1986, Russia & United States). He was asked about a Holocaust survivor who married in the Displaced Persons camps in Austria shortly after the War (Responsa Igrot Moshe, Even HaEzer 4:83). When her first child was born, her husband was reluctant to circumcise him. After some discussion, her husband told her that his reluctance stemmed from the fact that he apostatized a few years before they got married. After learning this information, the wife wanted to leave the marriage, but her husband refused to give her a Get. The questioner wanted to know whether he could rely on the Tur and invalidate their marriage because the husband apostatized prior to the marriage.

Rav Moshe emphatically rejects all of the prior sources that state that an apostate is a gentile, and rules that the wife cannot remarry without a Get. He argues that the Talmud considered it obvious that an apostate was still Jewish; therefore, it never stated that explicitly. The only cases addressed by the Talmud are the extremes of this issue. For example, with regard to the lost tribes, the Talmud asks whether their descendants are still Jewish, even one thousand years after they stopped living as Jews. Similarly, the Talmud discusses whether a convert whose conversion was deficient is still Jewish if he reverts to his gentile ways. However, at no point does the Halachah recognize the conversion to another religion of someone who was born and lived as a Jew.

VIII. Conclusion

As the Israeli Supreme Court recognized in the Brother Daniel case, the basic question that these sources grapple with is the nature of Jewish identity. If you view Judaism as a set of beliefs and practices, then abandoning those beliefs should mean that you are no longer Jewish. However, if, as Brother Daniel argued, Judaism is an ethnicity, then it is passed down from parent to child irrespective of faith.

The flip side of the debate about apostasy is found in the contemporary Israeli debate about conversion. One side claims that a prerequisite to conversion is a full Kabbalat HaMitzvot, acceptance of the Mitzvot, because it believes that joining the Jewish people means embracing Jewish belief and practice. The other side claims that it is sufficient if the convert identifies with the Jewish people and their plight. It is interesting that normative Halachah seemingly adopts contradictory positions with respect to conversion and apostasy, emphasizing the primacy of practice and faith through Kabbalat HaMitzvot for the former, while claiming that Judaism is an irrevocable ethnic identity for the latter.

Postscript

The Israeli Supreme Court ultimately decided that Brother Daniel would not be allowed into Israel under the Law of Return. The meaning of Jew in the Law of Return was to be defined by what the average person in the street thought was a Jew – and a monk in a robe with a cross was the farthest from the popular conception of a Jew that one could get. Although Jewish law recognized Brother Daniel as Jewish, the Jewish people did not.

Brother Daniel eventually made Aliyah as a regular citizen, and lived out the rest of his days in Israel, as had been his lifelong dream. When he died in 1998, he was buried in the Catholic cemetery in Haifa. His brother Aryeh, who lived in Bustan HaGalil, recited Kaddish for him, while his fellow monks read from the New Testament.

We once again thank Mr. Shmuel Kadosh for his outstanding and most enlightening contributions to Kol Torah.