A Matter of Choice

By: Blu Greenberg 

The spiral effect of September 11 was enormous. As in any disaster, the unknowns added to the chaos and pain. One such matter concerned potential iggun for the widows. By day three, even before the full shock and horror had crested, I had received several calls: what was JOFA going to do about the agunot of the World Trade Center? Hearing the edge in my own voice, I answered that it was premature, absurd to raise the issue; the search for survivors had barely begun; widows were not interested in talking about get; there would be no agunot because the rabbis always came through in large scale disasters. “You’ll see,” a friend countered, “they may not be able to – they may not have a choice.”

Perhaps I had dismissed the matter too quickly. In the ensuing days, stories circulated of a man who jumped from a high floor so that his body would be found; another called his rebbe just before the building imploded to authorize a get. I wondered at how they managed to focus on their wives’ vulnerability amidst their own terror. Their actions reminded me of Rashi’s commentary on the talmudic passage (Yevamot 122a), “ ‘In a time of danger’: like one who was thrown into a pit and called out that whoever hears his voice should write a get to his wife.…”

What is the issue here? A Jewish marriage is terminated through death or divorce, and these men had died in the building. But Jewish law contains a remarkable principle, hezkat hayyim – the presumption of life. Until we know with certainty a person has died, we should not abandon hope. Perhaps he was waylaid by robbers in the forest, or taken captive. Perhaps his ship went down but he was rescued to a distant shore and would eventually return. Hezkat hayyim is an optimistic, life affirming principle. Direct testimony is required to verify death.

In the WTC attack, as in ancient catastrophes, there was no chance for witnessing. While circumstantial evidence was powerful, it did not meet the classic halakhic requirements of body identification or direct testimony. Despite this, I felt confident there would be no agunot from the WTC attack, for in response to catastrophe, the rabbis always found a way. After the Shoah, they released thousands of women whose husbands did not reappear. Widows of the missing submarine Dakar crew were similarly released. The Israeli rabbinate takes precaution to prevent iggun when young IDF husbands go to battle. And, indeed, the agunot of 9/11 are being released, with compassion, one by one by one. No, the problem with iggun today is not the man who perishes in a burning building or in a crash over the ocean; the problem is the recalcitrant husband around the corner. 

Now let us return to my caller’s comment, “They may not have a choice,” for therein lies the crux of the matter. Rabbis do have a choice – to rule leniently or stringently within halakhah. As in any legal system, they can follow precedents of narrow or broad construction. This explains why, in earlier times, in cases of presumed drowning in “endless waters” some poskim1 found adequate evidence to free an agunah while others deemed similar evidence to be insufficient.2 In the WTC case, choice is what enabled one beit din to release an agunah based on a wife’s testimony that her husband called her from work at 9:00 a.m., while another rabbi pressed for DNA evidence. From talmudic times onward, the system has tilted toward leniency. Notwithstanding its own principle that a coerced get is invalid, the Talmud itself (Yevamot 106a) introduced the concept of kofin oto, “we (the beit din) coerce him (to give a get) until he says, ‘I want to do so.’ ” Evidentiary rules were relaxed to allow leniency. In every age, rabbis admonished each other to choose the compassionate, lenient path.

I believe we can learn from the rabbinic response to the WTC tragedy, and bridge that response to the primary problem today, the recalcitrant husband. While the situations are quite different – verification of death versus a living husband – the element of choosing stringent or lenient precedents is the same. Just as the rabbis chose to be lenient so as Under rabbinic discussion today is the revival and broader interpretation of methodologies that serve precisely that purpose: hafka’at kiddushin (annulment of the marriage by the beit din), wider latitude in declaring witnesses to the marriage ceremony invalid; get zikkui (the court authorizing a get on behalf of the husband) and kiddushei ta’ut (nullification ab initio of the marriage). There are more than ample precedents to enable release of a woman from the lock-hold of a dead marriage, and there is more than one beit din courageous enough to apply these methodologies creatively.

Sorely lacking today is respect by batei din and rabbis for the work of other batei din. Tradition mandates mutual respect, especially where leniency operates to free a woman. And here is where the community comes in. It is not the task of the community to make halakhic decisions, but it should be its task to press for mutual respect and compassionate leniency. In doing so, we can make the difference between eradicating forever the blight of premeditated, willful iggun — or carrying injustice forward into history. We, too, have a choice! 

1. Among them are Terumat ha-Deshen, the Mordekhai, and Shevut Ya’akov. See for example the latter, part 3, siman 110.

2. All base themselves upon Yevamot 121a, that “endless waters” create the conditions for iggun.

 

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