Rischa D'Araisa Season 3 Episode 21:
How Batei Din for Gittin
continue to offend and pain Geirim:
Rabbi Aryeh Klapper presents his case
https://jewishpodcasts.fm/riscahadaraaisa/21634
Rabbi Klapper, the founder of Modern Torah Leadership, joins Rabbis Bechhofer and Kivelevitz to discuss his campaign to correct what he sees a s a gross injustice.
He has submitted a draft of his essay for all Rischa listeners:
The Torah prohibits causing psychological distress to converts (ona’at hager). Most American dayyanim recognize the incredible ona’at hager that results from making converts repeatedly “prove” their Jewishness. Yet American batei din maintain a divorce policy that puts many valid converts and their descendants at risk of just such an ordeal. Here’s how.
American batei din conventionally distinguish two classes of converts when they write a get (halakhic bill of divorce). Converts who are halakhically observant at the time of divorce are identified as “ben/bat Avraham Avinu”. Those who aren’t halakhically observant at the time of divorce are identified as “HaGer/HaGiyoret”, with no father’s name.
This is intrinsically problematic – there is no reason for batei din to judge the observance level of anyone appearing before them for divorce, and batei din generally claim never to do so. But the worst part is that Israeli batei din take the absence of “ben/bat Avraham Avinu” in a convert’s get as a basis for challenging the validity of the conversion. Let me explain how this happened.
In traditional Jewish thought, “the convert” is a badge of honor, as in Maimonides’ famous letter to Rabbi Ovadiah the Convert. But in the early 19th century, Rabbi Yaakov of Lissa (Toras Gittin 129:11) creatively argued that it would sully the honor of Avraham Avinu to be identified as the father of an apostate convert. Toras Gittin suggested that such converts should instead be identified by their non-Jewish name and the name of their biological father.
The 1868 work Chayyei Aryeh (39) pointed out that using pre-conversion names and pre-conversion fathers raised all sorts of halakhic difficulties. He concludes that respect for Rabbi Yaakov prevents him from dismissing the ruling, but that it would be better to use “Hager/HaGiyoret” as the alternative.
Despite Chayyei Aryeh’s grudging acquiescence, it’s not clear whether Toras Gittin’s position had much influence on practice before the mid-20th century. We can say confidently that his position contradicts the still-standard 17th century halakhic work on documents Nachalat Shiv’ah (Mahadura Basra 31:4, inserted as note in Mahadura Kamma 41:23:4; see also the summary in Pachad Yitzchak (Lampronti) p.134), and that most books on gittin published after Toras Gittin, for example Arukh HaShulchan, gave a standard rule for converts without mentioning that apostate converts were an exception (even though apostate coverts were often brought up in two other halakhic contexts, writing sifrei Torah and wine). The still-standard late-19th century gittin manual Kav Naki (Seder Haget Rishon VeSheni 21 Note 7) cites Pitchei Teshuvah as citing a position of Toras Gittin about the case, without saying what the position is. (I have not found a relevant Pitchei Teshuvah.) Rav Gedaliah Felder’s mid-20th century Nachalat Tzvi cites Toras Gittin’s position as “there are those who say”, with a note that it applies only lekhatchilah.
However, a practice based on Chayyei Aryeh’s friendly amendment of Toras Gittin was practiced in the Tel Aviv beit din soon after 1948. We know of this practice from two sources.
The first source emerges from Chief Rabbi Shlomo Goren’s ruling in the famous “Langer case”. Rav Goren ruled that a brother and sister were not mamzerim even though their mother’s get from her first husband was dated after their birth, because that husband had not converted validly, if at all. An anonymous Israeli dayyan’s letter supporting this ruling was published as Appendix 3 of his Pesak Din HaAch v’Ha’Achot. (The houses of dayyanim identified as supporting the ruling were reportedly firebombed, hence the anonymity. The letter seems to identify its author as a member of the Tel Aviv-Yaffa regional beit din). One argument in that letter provides the information relevant to us:[1]
The get (from the mother’s first husband) is written “Avraham HaGer”, not “Avraham ben Avraham Avinu” as is customary to write on every get for a convert, as is made clear in Shulchan Arukh Even haEzer 129.
The rationale for this must be that at the time the get was arranged in beit din, (the first husband) had an established record as not being observant of the tradition, and, it seems, that he had the reputation of a ‘mumar/turncoat to avodah zarah’. A get like this - we do not connect the person genealogically with Avraham Avinu, as is explained in Toras Gittin 129:11, “because (Avraham) certainly did not identify his name with such a congregation (of apostate converts), and we do not connect his genealogy back to Avraham Avinu ob”m”. Pitchei Teshuvah Seder Gittin note 21 also follows Toras Gittin (ADK: I have not found this in Pitchei Teshuvah; see my note above re Kav Naki), and that is our practice today in the beit din for divorce in the region of Tel Aviv/Yaffa, and that was the practice of the Av Beit Din for Gittin of that time, Rabbi Yosef Halevi zt”l, who officiated that get for Avraham Borkowsky (the first husband) in the year 5711.
The letter cites Rabbi Halevi’s practice in order to corroborate testimony that Mr. Borkovsky had remained a Christian throughout his life. This works if Rabbi HaLevi wrote “haGer” rather than “ben Avraham Avinu” only for converts who were ‘turncoats to avodah zarah’, and not for the merely nonobservant. The argument is greatly weakened by the implicit concession that Rabbi haLevi would do the same for ‘public Shabbat desecrators’. The anonymous dayyan presumably assumed that for technical reasons the latter status applies only to a small subset of the nonobservant.
In a supplement to the original letter (also published in Appendix 3 of Pesak Din HaAch v’Ha’Achot), the anonymous dayyan strongly critiques a practice that he presents as developing after Rabbi HaLevi’s time:[2]
Those dayyanim who relate frivolously to all matters relating to the validity of a get, and seek out the bediavad in order to do it lekhatchilah, and have begun to write in the get of a convert only “X Hager”, when according to the opinion of the poskim this hints that the divorcing man is not fit to be connected genealogically to Avraham Avinu ob”m because he desecrates Shabbat publicly, or worse, that he has likely returned to his previous religion – they are violating the longstanding practice of Israel, and in my opinion, they are transgressing many DON”Ts in the Torah that caution us regarding ona’at hager, because I have shown above with clear-cut proofs that lekhatchilah one must write either “ben Avraham Avinu” or else “X haGer ben Avraham”, but if it happens that a convert who comes to divorce is a public Shabbat desecrator, and thereby becomes a ‘turncoat to the entire Torah’ as is made clear in the Talmud and poskim, and all the more so if Heaven forfend he returns to his original religion - then certainly one is obligated to omit the name of Avraham Avinu in his get.
According to this, if one finds a get written for a convert that was written by a gittin expert in the era preceding ours, and in the get is written only “X haGer” – then there is great reason to consider that at the time of writing they categorized this convert as having the grave status of a public Shabbat desecrator or that he had returned to his prior religion, rather than attributing the omission of Avraham Avinu’s name to incompetence.
In other words, by 1972 some Israeli dayyanim wrote “X haGer” rather than ben Avraham Avinu even when the convert was merely an ordinary sinner.
An abridgement of the anonymous dayyan’s letter was apparently published in a New York daily newspaper. This version made no mention of Rabbi Halevi’s practice. Rabbi Ephraim Eliezer Yulis (Divrei Efraim Eliezer EH 219), Av Beit Din of Philadelphia, responded by expressing astonishment that an important dayyan would make so weak an argument. He pointed out that decisors throughout the ages had made clear that “HaGer” and “ben Avraham Avinu” were both valid for all converts, so what evidence could be brought from the use of “HaGer”?! Rabbi Yulis clearly did not believe that standard beit din practice followed Toras Gittin. It therefore seems likely that this practice was not widespread in American batei din.
Rabbi Yulis had a second criticism. The validity of a conversion is not affected by a convert’s subsequent apostasy. Therefore, how could evidence of apostasy at the time of the get, many years after the alleged conversion, prove anything about the father’s Jewishness?!
As noted above, the full version of the letter shows that the dayyan supporting Rav Goren actually used the language of the get only to support testimony that the father had never renounced Christianity at all. He did not use the language of the get as evidence that the beit din had questioned the validity of the conversion.
Rabbi Halevi’s practice is cited with at least one important extension in a 5752 decision (published in Shurat HaDin vol. 4 p. 245) by Dayyan Yosef Goldberg (a member of the Tel Aviv beit din).
The case was as follows: A woman was denied permission to marry because her maternal grandmother’s 5728 Tel Aviv beit din divorce file stated that she could not remarry until her conversion was validated. All other records of the beit din’s deliberations had been destroyed. The get itself identified the grandmother as “bat Avraham Avinu”.
Rabbi Goldberg reports that Rabbi Halevi wrote “haGer” rather than “ben Avraham Avinu” for apostate converts, and also for converts “who desecrated Shabbat publicly, and thereby became a traitor to the entire Torah”. He then cites Rabbi M. Tziyoni, a dayyan who was a signatory on the grandmother’s get, as follows:
The gaon Rabbi M. Tziyoni shlita said to me that the custom in their beit din was: We ask the convert whether he is shomer Torah umitzvot, and if he says that he was shomer Torah umitzvot – we write “ben Avraham Avinu”, and if he said that he is not shomer Torah umitzvot – we write only “X HaGer”.
Rabbi Goldberg contends that because the grandmother’s get identified her as “bat/ben Avraham Avinu”, she must have claimed to the beit din that she was at least somewhat Shabbat-observant. He then makes a technical argument that the grandmother’s claim is a valid basis for affirming the granddaughter’s Jewishness, even if it cannot be verified, and even though the officiating beit din had left the grandmother’s own status in doubt.
The practice reported by Rabbi Tziyoni represents a significant expansion of Rabbi haLevi’s practice, and corresponds to the practice criticized by the anonymous dayyan. It also shows that the beit din’s decisions were not based on any serious investigation. Rabbi Goldberg in fact never suggests that the language of the get proves anything about the grandmother’s actual practice; rather, he uses it to show what the grandmother must have told the beit din about her practice.
The anonymous dayyan and Rabbi Goldberg each used an argument from get-language in support of ruling that the parties in front of them were eligible to marry. However, Rabbi Shimon Yakobi, legal adviser to the Israeli beit din system, used a radical extension of this argument for an opposite end in his 2010 book ביטול גיור עקב חוסר כנות בקבלת המצוות (Nullification of Conversion Owing to Lack of Sincerity When Accepting the Mitzvot).
Rabbi Yakobi asserts that the standard practice of Israeli batei din by 2010, as evidenced by several get manuals, was to write “ben Avraham Avinu” for converts who were shomrei mitzvot (observant of the commandments), and “haGer” for converts who are not. He then contends that beit din records show that the vast majority of Israeli gittin written for converts post-1996 (when batei din began keeping computerized records) used “haGer” rather than “ben/bat Avraham Avinu”. Finally, he uses these statistics to support a decision by Rabbi Avraham Sherman of the Beit Din HaGadol that had retroactively declared thousands of Rabbinate-authorized conversions presumptively invalid. (Rabbi Sherman’s own grounds for his decision are beyond the scope of this article. Regardless, his decision served notice that he and his supporters would not refrain from challenging Orthodox conversions even many years later. In other words, it put all converts in permanent fear of challenges to their own or their descendants’ Jewishness. I can attest that it had this effect based on contemporary phone calls to the Boston Beit Din and many conversations in subsequent years. Sometimes the ends justify the means; but it would take ultimately important ends to justify such an enormous violation of ona’at hager.)
Rabbi Yisroel Rosen reports that Rabbi Yakobi’s statistics were disputed by Rabbi David Bass and Rabbi Mordekhai Brully (ואוהב גר, p. 217). They noted, for example, that according to his chart, the Beersheva beit din had not written any divorces for converts at all! The solution was that the Beersheva beit din wrote ben Avraham for all converts – in other words, that practice in Israeli batei din had not in fact standardized.
Moreover, Rabbi Yakobi’s argument treats later non-observance as halakhic evidence that the original conversion was insincere. As Rabbi Yulis noted, there is no necessary connection between these phenomena.
Finally, Rabbi Yakobi’s argument treats a beit din’s decision about the get as evidence of the convert’s actual level of observance. We saw above that according to Rabbi Tziyyoni, his beit din simply accepted the convert’s self-report. Rabbi Rosen reports that according to Rabbi Bass and Rabbi Brully, many batei din probably made judgments based solely on converts’ clothing.
But whether or not one regards Rabbi Yakobi’s arguments as sound, the reality is that he treated a get that identified a convert as “X haGer/Giyoret” as a basis for challenging the validity of the conversion. Moreover, he found a dayyan who explicitly stated that the language of a get is intended to reflect such a concern.
In אבני משפט 4:13 (cited by Rabbi Yakobi in ftnt. 328), Rabbi Mordekhai Ralbag records the following rule, which he presents as based on the practice of Rabbi Shlomo Fisher’s beit din:
If the divorcing man or women are converts who observe the mitzvot – one should write ben/bat Avraham Avinu.
But if they do not observe mitzvot, and there is a concern that at the time of conversion they did not intend to accept the yoke of the commandments and the conversion is not good and they are Gentiles – one must hint at this in the get, and therefore one should write only their names and conclude with “the convert”.
This rule makes the language of a get a clear basis for challenging the validity of a conversion. Rabbi Ralbag does not present this as an innovation, but rather as established law; in other words, he regards a get that is written “HaGer” to be evidence that the beit din saw reason to question the validity of the conversion. Rabbi Ralbag was appointed by his brother in-law, Chief Rabbi Dovid Lau, to head the beit din system in Yerushalayim (the appointment is on hold because the Attorney General has charged that the process was nepotistic, but Rabbi Ralbag is certainly an intellectually impressive and influential dayyan).
At some recent point, American batei din changed their practice to the one criticized by the anonymous dayyan; that is to say, they began writing “haGer” for converts who were not fully observant. Their intent was probably to match the official standard in Israel (although we saw above that Israeli beit din practice never actually standardized.) In my experience, decisions as to how to identify converts in American gittin are made in the casual manner Rabbi Tziyoni reported, by asking the convert (or sometimes the spouse of the convert) whether he or she is observant at the time. (Most likely some batei din decide based on clothing or appearance.)
Converts are not told why the question is being asked. They are not told that an honest answer may lead the Israeli Rabbinate to treat their divorce documents as evidence against the validity of their conversions.
In many cases, the beit din itself may not realize this. But it is nonetheless true, for two reasons. First, some prominent Israeli dayanim regard later nonobservance as probative halakhic evidence that the initial conversion was insincere. (For a while, Rabbi Leib Tropper’s Eternal Jewish Family used bribery and intimidation to spread this position in the United States. The exposure of some of his many scandals has discredited it for now, but that may not be permanent.) Second, some prominent Israeli dayanim assume that the language of the get reflects genuine concern about the validity of the conversion.
The Israeli nonprofit ITIM, headed by Rabbi Seth Farber, has repeatedly sued the Rabbinate to prevent them from using the divorce process as an occasion to reopen question of Jewish status. Doing so is now illegal, but it remains unclear whether the practice has ceased. Regardless, there is no bar to the Rabbinate using the divorce documents of converts as evidence in an initial inquiry into Jewish status, such as when converts from abroad apply for Aliyah.
In other words, distinguishing between “haGer” and “ben/bat Avraham Avinu” in gittin puts converts in permanent danger of challenges to their own or their descendants’ Jewishness.
American batei din have a moral obligation to return to the simple halakhah, which requires no such distinctions in the get. We should regardless not be asking anyone about their religious practice when they come for divorce, , all the more so converts, all the more so without being transparent about the stakes. Asking such questions raises anxieties in every convert about every imperfection in their halakhic practice and violates ona’at hager. We certainly must not continue a practice that raises unfounded doubts about many legitimate conversions, aids and abets those who seek to invalidate conversions we regard as perfectly legitimate, and makes many converts and their descendants permanently insecure.
[1] בגט כתוב 'אברהם הגר', לא 'אברהם בן אברהם אבינו' כנהוג לכתוב בכל גט של גר, כמבואר באהע'ז סימן קכ'ט. הנימוק הוא, משום שבשעת עריכת הגט בביה'ד הוא היה מוחזק כבלתי שומר מסורת, וכנראה, שהוא היה מוחזק למומר לע'ז, ובגט כזה אין אנו מיחסים אותו אחרי אברהם אבינו, כמבואר בספר תורת גיטין בסימן קכ'ט אות י'א: 'דבקהל כזה בודאי לא ייחד כבודו ואין מייחסים אחר אברהם אבינו ע'ה'. וכן איתא ב''פתחי תשובה' בסדר גיטין אות כ'א כהתו'ג, וכן אנו נוהגין כיום בביה'ד לגיטין במתא ת'א-יפו, וכך היה נוהג האב'ד לגיטין באותה תקופה הרב ר' יוסף הלוי זצ''ל, שסידר גט זה לאברהם בורקובסקי בשנת תשי'א.
[2] אלו הדיינים המתיחסים לכל דבר הנוגע לכשרות הגט בקלות הדעת, ומחפשים את הבדיעבד לעשותו לכתחילה, והתחילו לנהוג לכתוב בגט של גר רק 'פלוגי הגר', ולפי דעת הפוסקים מרמז זה שהמגרש איננו ראוי להתיחס לאברהם אבינו ע'ה משום שהוא מחלל שבתות בפרהסיא או יותר גרוע מזה יתכן שחזר לסורו – הם עוברים על מנהג ישראל מקדמת דנא, ולדעתי, עוברים הם על הרבה לאווין בתורה שהוזהרנו על אונאת הגר, כי בארנו עד כה בראיות חותכות שלכתחילה חייבים להזכיר את שם אברהם אבינו או לכתוב 'פלוני הגר בן אברהם' כנ'ל, אלא אם קורה שהגר הבא להתגרש הוא מחלל שבתות בפרהסיא, וע'י זה נעשה מומר לכל התורה כולה כמבואר בש'ס ופוסקים, וכל שכן אם חס ושלום חזר לסורו - אז בודאי חייבים להשמיט את שמו של אברהם אבינו בגט שלו. ולפי זה, אם מוצאים גט של גר שנכתב על ידי מומחה לגיטין מן התקופה שקדמה מלפנינו, וכתוב בגט רק 'פלוני הגר' – יש חשש גדול שתפסו את הגר בשעת כתיבת הגט בעבריינות חמורה של מחלל שבתות בפרהסיא או שחזר לסורו, אבל אין לתלות בוקי סרוקי בהשמטת שם אברהם אבינו.
