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My Kind of Feminist

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Adina Bar Shalom with her father, R' Ovadia Yosef (YWN)
Now this is my kind of feminist. Speaking about her father, Adina Bar Shalom said the following: 
(W)omen’s rights within the context of Jewish law were extremely important for Rav Ovadia, a quality sorely lacking in today’s ultra-Orthodox rabbinic leadership.
 “My father used to say that every dayan should treat a woman coming to court as if she’s his own daughter,” she said. “In reality, things are very, very different. Dayanim do not think this way and cannot bring themselves to reach serious, truthful rulings. The suffering of the other does not concern them.”
 
I have been a fan of Adina Bar Shalom ever since I heard about her. But I didn’t realize just how many of her views mirrored my own. An article by Elhanan Miller in Tablet has just made me aware of that.

Mrs. Bar Shalom is the daughter of a genuine Sepahrdi Gadol, Chacham Ovadia Yosef who was Israel’s Sephardi chief rabbi back in the 70s. He was a brilliant Talmud Chacham whose encyclopedic knowledge of Halacha was recorded in voluminous detail in the many Seforim he published. As Miller notes: ‘Rav Ovadia… (is) widely regarded as the most prominent Sephardic scholar of the 20th century.’ 

Some of Mrs. Shalom’s responses surprised me. But not all of them. For example her support for changing the educational paradigm for Charedi in Israel is well known. A position that is identical to my own: 
Shas, the political movement he founded in 1984, is now controlled by an ultra-conservative rabbinic council. The movement’s educational system, Ma’ayan Hachinuch Hatorani, refuses to introduce secular studies to its curriculum, thereby condemning its students to a life of poverty, unable to integrate into Israel’s high-skilled workforce. “In 10 years’ time, our children will sue us for recklessness and neglect,” the 70-year-old said… 
 “Haredi society is reaching a crossroads,” she explained. “The boys want to study English and math. They can’t manage in the world without secular studies. You simply can’t allow them to study only religious studies; you must allow both. If we do not rise to the challenge the cost will be terrible. Young men will not want to attend yeshivas at all, and we will have thrown out the baby with the bath water.” 
Where have we heard that before! Unfortunately Shas, the Sephardi political party is now led by a fanatic that would fit in easily with extremists like Rav Shmuel Auerbach. Here is what Mrs. Shalom had to say about that: 
Shas, under the guidance of Rabbi Shalom Cohen, Rabbi Ovadia Yosef’s successor as president of the Council of Torah Sages (the party’s steering committee), is “no longer my father’s party.” 
Mrs. Shalom was not reticent about criticizing the rest of the Israeli Charedi rabbinic establishment either: 
“They are fearful and, unfortunately, not learned enough. I believe that anyone who is deeply learned can find solutions to every problem. I don’t want to denigrate anyone, but we don’t have enough brave giants. Unlike that high-school student I was speaking to earlier, a great scholar cannot try to please his friends. He must take responsibility as a leader and solve the problems of his people. If he wants to safeguard the Torah, that’s the only way. The moment he tries to please the mediocre scholars, mediocrity wins, and that’s our downfall.” 
Miller notes that she was probably talking about her younger brother, Sephardic Chief Rabbi Yitzchok Yosef.

Adina Bar Shalom is the founder of the Haredi College of Jerusalem, which caters to the sensibilities of Charedim offering separate classes for men and women. Originally created for Charedi women it has since evolved into a school for both sexes. This and her social activism earned her the highly regarded Israel Prize.

Here is another of her surprising views . Although a strong devotee of her father and being ‘fiercely loyal to him, it is nonetheless hard to imagine his having similar views on at least one issue. Here are her honest thoughts about the LGBT community - via her own personal experiences: 
 “For a woman coming from such a different world, to meet a man like that was a big ‘wow.’ I met a person whom I even loved to some degree. A nice, kind person whom I could befriend. Should his [sexual] orientation drive me away because it’s so different? That was a question I asked myself.” 
As I indicated, most of the comments made by Mrs. Bar Shalom could have been made by me. Many of which are indicative of the problems the Charedi world faces right now. I have to wonder though whether things would be different if the leaders of the past were still around… Perhaps Adina Bar Shalom hints at the answer with the following:
(T)wo years after his death, his eldest daughter observes with alarm—and a measure of disgust—as Ovadia’s legacy atrophies. 
This is true not only about Rav Ovaida’s legacy. I thinks its true about the legacy of all his contemporaries that have since passed on.  Which is not to difficult to see when comparing the legacy of Rav Shlomo Zalman Auerbach to the behavior of his son.

The Root Cause

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Malky Klein  (New York Post)
One of the major problems affecting the Orthodox Jewish World is an elitism that has resulted in a massive exit of far too many young people from observance. This is commonly known as the OTD (Off The Derech) phenomenon. In some instances ending in death to innocent young victims via suicide or drug overdoses.  This has become frequent enough that when it hits the media, I am no longer all that surprised by it.

Because of an explosion in the number births per family (a phenomenon encouraged by the right wing leadership regardless of the  consequences) there just is not enough room in the schools for all those children. I recall that not long ago a new very large elementary school that was being built in Lakewood to alleviate this problem. It was filled to capacity before the doors ever opened for the first time. 

Add to that the pressure to excel in Torah study and to be ‘the Frummest school in town’  - and you have a pretty good answer as to why we have this phenomenon. While there are many reasons why young people go OTD, in my view one of the major reasons is the inability of schools to handle any but the best and brightest of students. If someone has a learning disability, they are out of luck. If someone does not quite fit into the uniform mold that many of the schools now require, they are out of luck too.

Parents who have the so-called ‘good kids’ (meaning a certain level of intelligence, motivation, and no learning disability) will be the first to insist that those without these qualifications be rejected - seeing them as behavioral problems and as bad influences on their own children. And principals are all too eager to comply lest they lose their reputations of being a top school. With overcrowded conditions being the case – a problem that is likely going to increase as the population multiplies exponentially with each new generation, this problem will not go away.

The current situation is intolerable. There is no excuse for sending a child that doesn’t quite ‘measure up’ to a life filled with pain.  Which is often followed by going OTD. And in some cases death. 

The New York Post featured  the story Malky Klein who was raised in by Chasidic parents in the Boro Park section of Brooklyn. The short version is that because of the pain of rejection she went OTD; found relief in heroin; overdosed; and died. But as noted on Rabbi Bechhofer’s blog from a reliable source, there is more to the story: 
On the 24th of June the Jewish community lost 20 year old girl who wanted a chance in life. This innocent girl struggled through her school career with learning disabilities. When it came to getting accepted to high school she had a very hard time. Her parents had to beg to get her accepted.
Finally one school agreed to accept this girl. A few weeks into school the principal called up this girl’s parents to inform them that she is being kicked out for various reasons. One of those reasons is that this girl ate in the pizza shop instead of taking home the pizza to eat it at home. You can imagine what her other infraction were all about.
Her parents tried sticking up for her behalf but they were talking to the wall. Her parents were horrified and devastated. They begged the school to keep her until they find a different school that would accept her and keep her dignity. The school refused to listen.
This broke this poor girl completely and her parents relate from there on it was downhill. She was out on the streets with no school and found friends who finally accepted her and saw her talents. Those friends weren't in the best shape either.
However she was still in deep pain, and therefore she hooked up onto drugs which was like a bandage to her (injury). She liked the way the drugs left her feeling and it became her new escape.
Her parents tried everything in (their) power to ease her pain. She had just come home from rehab after being there for 2 years. Despite all of that she couldn't fight the demons of pain and she succumbed to drug overdose. 
This story is accompanied on Rabbi Bechhofer’s blog by a similar one featured in a publication known as The Voice of Lakewood. A young girl by the name of Yaffa Lebovitz whose ‘scholastic achievements’ were ‘unfavorable’ - had difficulty being accepted into a high school. 

One school took a chance on her. When parents in the school found out, they threatened to pull their daughters out of she was allowed to stay. Yaffa was summarily told to leave. She was told that a mistake had been made and she was never really accepted. To say she was devastated would be an understatement. After 5 years of tremendous pain she committed suicide!

I cannot agree with Rabbi Bechhofer more! There is a special place in hell for these people. Every single person who contributed to this. Which includes the gutless principal in Yaffa’s case. And the people in Makly’s case that make absurd rules like eating a pizza in a restaurant (rather than taking it home) an offense worthy of expulsion! But more so are complaining parents that pressure their schools to make these kinds of expulsions. 

What happened to the compassion that we inherited from our progenitor and patriarch  Abraham?!

Some of that blame has to be placed onto a rabbinic leadership that has failed to address the root causes of this problem. The OTD phenomenon is not new. As described in these two stories it began decades ago, long before it was finally acknowledged by the Agudah through their magazine, the Jewish Observer. Which devoted an entire issue to it. It was there largest selling issue ever. The Jewish Observer stopped publishing nearly a decade ago. That issue was published long before then.

This is not to say that nothing was done. It was. In fact a few years ago I remember Lakewood Mashgiach, Rav Matisyahu Salomon tried to deal with it by insisting before the school year began that all children must be accepted into the schools. And I’m told there are some specialized schools that do deal with these kinds of problems.

But it is all too easy to see that this is not enough. The root cause is not being addressed. Which is an educational system that is clearly not equipped to keep up with their population explosion. And the growing sense of elitism has caused a ‘solution’ that increases the kinds of things that happened to Malky Klein and Yaffa Lebovitz.

Sad to say that if something isn’t done about that - it is near certain that the problem will increase. And young people will continue to needlessly die.

A Mischaracterization of the Truth

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Conservative Rabbi Michael Siegel (CJN)
One of the most talked about issues facing the Jewish people right now is how Israel should treat Diaspora Jewry. I cannot remember a time where there was more divisiveness among our people. The issues specifically under contention are conversions to Judaism and granting non Orthodox streams of Judaism some degree of official recognition via an egalitarian space at the Kotel.  

The government of Israel has reneged on a deal made to allow an egalitarian space at the Kotel. That was because of Orthodox opposition to the legitimacy that would be conferred upon them by a committee that would be established to be preside over it consisting of rabbis from both Orthodox and non Orthodox movements. That would amount to a back door recognition.

The other issue is the Chief Rabbinate’s standardization of conversion procedures that in effect has formalized the invalidation of every non Orthodox - and even some Orthodox – conversions. A corollary  of which is that non Orthodox rabbis - and even some Orthodox rabbis - cannot be trusted to verify the Jewish status of anyone. 

I disagree with not accepting some Orthodox Rabbis’ testimony about an individual’s status as a Jew. But that is beyond the scope of this post.

I have endorsed the idea of standardization of conversion procedures. And so too has the Rabbinical Council of America (RCA) who created new guidelines (GPS) that have been accepted by the Rabbinate.

In their most recent issue, the Chicago Jewish News interviewed  2 non Orthodox rabbis that were placed on a ‘blacklist’ made by a political hack in the rabbinate. This fellow apparently on his own (according to Ashkenazi Chief Rabbi, David Lau) decided that it was necessary to list rabbis whose testimony would not be accepted.  Those rabbis were understandably upset by being placed on this blacklist – which was a stupid and disgusting thing to do.

But their explanation of why they are upset skirts the real issue. This is not about rejecting non Orthodox Jews. This is exactly about those standards which their denominations do not adhere to. It should not be a surprise to anyone that rabbinate does not accept non Orthodox conversions and therefore testimony by their rabbis about who is or isn’t Jewish.

Those 2 rabbis have been parroting the charge by other heterodox rabbis that the rabbinate is rejecting 90% of the world’s Jews by refusing to trust their testimony. Adding insult to injury - YCT ordained Rabbi Avrom Mlotek mischaracterizes this as an issue of rejecting unity.

The idea that this is about unity or rejecting 90% of the world’s Jews because they aren’t Orthodox is a misdirection of what is going on.

This isn’t about unity. There was never any unity between Orthodoxy and heterodoxy. Orthodox Judaism has rejected all non Orthodox movements from their very inception. They have made no secret of that. These 2 rabbis know that as should Rabbi Mlotek.  

I’m sure that this situation has always bothered heterodox rabbis – They believe they are legitimate. No one wants to be considered illegitimate. But they know that Orthodoxy by definition cannot accept movements that it believes violate our basic religious principles. Heterodox rabbis know that too. And so too should Rabbi Mlotek.

The Israeli Chief Rabbinate is composed entirely of Orthodox rabbis. That is how it was created long before the state itself was created. From the very beginning until this day, they are recognized by the state as the official religious authority. Recognition of other denominations is therefore simply not in the cards. No amount of push back will change that. Nor should it change in my view.

Saying that the State of Israel rejects 90% of world Jewry is therefore a demonstrable lie. There is no other way to characterize that claim. Orthodoxy does not reject any Jew, no matter how far removed they may be from Judaism.

It has always been that way. Before there was denominationalism, there was only one Judaism. There was a spectrum of observance among us that ranged from the most devout and observant to the least devout and non observant. But everyone knew what Judaism was. Which is essentially what Orthodoxy is today (Only it wasn’t called Orthodoxy since there were no denominations.)

If a Jew was not observant everyone knew what that meant. Demonationalsim changed all that. Reform decided that observance is not necessary. Conservative Judaism redefined Halacha to fit the times. One could now choose to be a non observant Jew without any guilt.  Obviously this was unacceptable to Orthodoxy - the historic and default state of Judaism

Religion in Israel is controlled by the Chief Rabbinate. Whose membreship is entirely Orthodox as it always has been. It is based on the historical fact that Orthodoxy is what Judaism originally was. There should be no surprise whatsoever that heterodox movements will be not be accepted and that any back door attempt at recognition by the Israeli government will be fought.

What about the value of pluralism? Is that not a legitimate goal of a democracy? It is and I support it. But to me pluralism does not require a legitimization of the illegitimate by a body charged with determining what Judaism is - and what it is not.

Pluralism in  a Jewish State means accepting every Jew as Jewish as defined a rabbinate that has fealty to Halacha - no matter to which denomination they belong – or even if they do not belong to any. Israel has never stopped any denomination from establishing a presence there and preaching their own gospel. That is pluralism. Forcing a religious body to recognize something to which they are ideologically opposed is not.

I just want to reiterate that I have nothing perusal against Conservative and Reform rabbis. I fully understand that their efforts are based on the principles of their denominations. 

They even share many values with Orthodoxy. Surely we can unite in common goals for the welfare of the entirety of the Jewish people. For example - lobbying congress to oppose Sunday blue laws is certainly something we can unite over. We can be close personal friends too. Friendship does not mean recognition. Rav Soloveitchik who was vehement in his opposition to heterodoxy had a very close relationship with a non Orthodox rabbi. As did the Serdei Aish before him - and more recently as did Rabbi Yosef Reinman (who is Charedi) had with a Reform rabbi.

I also strongly agree with Rabbi Mlotek’s criticsm of how some Jews on the extreme right have expressed their animosity to other – even Orthodox Jews - that do not meet up to their standards. But that does not add up to recognizing movements we consider illegitimate.  That would be a betrayal of our values. No one with any kind integrity would ever do something like that.

I would therefore ask that these rabbis  rethink how they criticize a rabbinate that is Orthodox and more importantly – to  stop distorting the truth.

The Jekyll and Hyde Story of Daniel Greer

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Daniel Greer with bail bondsman (New Haven Independent)
Heartbreak doesn’t even begin to describe it! This story illustrates better than ever that sexual abusers are not limited to ‘stranger danger’. It also illustrates that abusers can be people of otherwise great accomplishment who are bright and talented leaders in a community that looks up to and admires him. With loving families and children who also admire him and inspires them. Such is the story of Rabbi Daniel Greer.

His life is filled with accomplishment. A 1998 New York Times article about the Yale Five tells us the story. The Yale Five were Orthodox Jewish students that fought the university’s requirement that all freshmen must live in the Yale dorm which was coed. Rabbi Greer and attorney Nathan Lewin filed the lawsuit in that case.

The article focuses on his daughter’s experiences as a religious student there. It also tells us a bit about Rabbi Greer’s inspiring life. Which sounds almost like it came out of an ArtScroll biography: 
In September 1956, as Daniel Greer's fellow freshmen were dining in the Princeton University Commons, he ate every meal alone in his dorm room. An Orthodox Jew some 10 miles from the nearest Orthodox congregation, only 16 years old because he had skipped grades, Greer kept kosher throughout college with the aid of the refrigerator, a hot plate and home-cooked meals he picked up on weekend visits to his parents.
''We were brought up to believe one goes out into the world,'' says Dov Greer, Batsheva's older brother, who has also attended Yale. ''But one doesn't accommodate one's religion for one's college. All Orthodox Jews know they live in a society that has some values that aren't ours. My father's main point is that the most important thing is that you are an Orthodox Jew. ''
With degrees from Princeton and Yale Law School, Daniel Greer moved easily into the secular world. He became an associate at Simpson Thacher & Bartlett, general counsel for the Commissioner of Investigation under Mayor John V. Lindsay and a candidate for New York State Assembly in 1972. But by the late 1970's, Greer had become a rabbi and moved with his wife, Sarah, to New Haven.
Unable to find an appropriate Jewish nursery school for Dov, their oldest child, the Greers founded one. Under Daniel as chairman and Sarah as principal, the school grew to include elementary and secondary grades serving 260 students, among them Batsheva Greer, who attended from pre-kindergarten through 12th grade.
Not that she grew up sheltered. The Greers lived in a relatively poor neighborhood with a large black population; it was being revived by a nonprofit housing program led by Batsheva's father. As a teen-ager, Batsheva volunteered in a soup kitchen, took meals to house-bound senior citizens, organized an informal day camp for local children. ''And I didn't do it,'' she says with a rare flash of edge, ''as 'community service.''' 
His story doesn’t end there. The New Haven Independent reports: 
Beginning in the 1980s, Rabbi Greer oversaw the revival of the neighborhood around his yeshiva at the corner of Norton and Elm streets, renovating neglected historic homes. 
Over the years, Greer has also crusaded against gay rights in Connecticut, at times played an active role in politics and government, and advocated for keeping nuisance businesses out of the Whalley Avenue commercial corridor. He and his family earned national attention for exposing johns who patronized street prostitutes in the neighborhood, for filing suit against Yale University over a requirement that students live in coed dorms, and then in 2007 for launching an armed neighborhood “defense” patrol and then calling in the Guardian Angels for assistance to combat crime. In the 1970s, Greer also led a successful campaign to force the United States to pressure the Soviet Union into allowing Jewish “refuseniks” to emigrate here and start new, freer lives. 
One can easily imagine how the community in which Daniel Greer lived saw him. He was probably seen as a man of near heroic proportion!

What he is now best known for has nothing to do with any of that. He has been charged with some of the more heinous sexual crimes I have ever seen in print. He denies the charges and plans to  plead not guilty. But the evidence is overwhelming. I am not going to go into detail of what he has been accused of. It is too graphic for my taste.

Needless to say, it is virtually impossible to believe any of it  based on his accomplished life and the way he raised his children. They obviously had no clue about these accusations and probably still don’t believe them. I can’t really blame them for that. The contrast between his life accomplishments and what he has been accused of is so stark that it would be a lot easier to believe his accusers are lying and have some sort of vendetta against him. But I don’t see how the evidence – most of which has been made public can be explained.

If these accusations are true (and I suspect they are) this man is obviously very sick. Here is someone that worked all of his life to do great things and apparently had this secret life that contradicted everything he supposedly stood for.  

It is not too hard to imagine that had his accusers gone to rabbis in the community instead of the authorities, they would have been disbelieved and probably vilified themselves.

If convicted, at 77 years of age he’s probably looking at a life sentence. I cannot imagine what this has done to his family. His  wife… his children must all be devastated.

If there is a silver lining here, it is that a lesson we should all know by now is reinforced. No individual, no matter how accomplished, should be above suspicion. If there are accusations of abuse, they should be reported to authorities immediately and investigated by them. Because chances are that those accusations are true.

I don’t know if there is anything anyone can do change sexual predators. They are sick individuals that I’m told cannot be cured. They seek gratification of their sexual desires in any way they can. Which usually means finding innocent victims for that purpose.

But there are things we can do to protect our children. We must be vigilant. We must educate ourselves and our children about this issue. We must report suspicions of abuse immediately to the authorities And we must make sure to never let preconceived notions about an accused predator color our perceptions about the reliability of their accuser.

Some Thoughts about the Day

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Rav Yoseph Dov Soloveitchik - The Rav
It is always a challenge for me to post something on Tisha B’Av both relevant to what this day is about and relevant to our own time. In the past I have focused on the Holocaust. More recently I have found Rav Soloveitchik’s commentary on the Kinos.

In Kina 6, the Rav notes the pain he had when Christian clergymen during the holocaust argued that this was proof the God abandoned us (the Jewish people)  and allowed for our complete destruction. Thus claiming fulfilment of words of their bible. He was confronted by these arguments and cried not only for the destruction of the Beis HaMikdash but also for the terrible Chilul HaShem that these arguments represented. But – among other things – the establishment of the State of Israel put a stop to those arguments.

But I do have a quibble with another commentary the Rav made on Kina 20. He states the essential Christian dogma that the Jews have lost the right to the land of Israel is true to this day.

This may have been true prior to and during the Holocaust. But there are approximately 65 million Evangelical Christians that prove otherwise. They are often more pro Israel than many Jews are. Unless he made that statement prior to the mid 60s - I believe that Rav was mistaken.

Another interesting point made by the Rav is his commentary on Kina 9. Eicha is a lament about How God could do this to us. How could he destroy our Holy Temple and perpetrateso many other tragedies against us throughout Jewish history. It s a lament that implies no logical explanation. “How is it posssible?’ we ask.

That is answered in the first stanza: You have done this to yourselves. The One speaking - is God. We are responsible for our own catastrophe. And we must accept the justness of God’s decree.

Looking at what is going on in the world today, one can readily see that we are indeed doing it to ourselves. Our educational system was once able to accommodate all manner of students. Today, only the best and the brightest are accommodated. This has created a catastrophe of epic proportion in our time. The ‘kids at risk’ phenomenon barely existed back when I was in school. There was a place for every student. Today, if a child doesn’t measure up, there is no room in the school for them. All of these children are at risk and many go OTD. Or worse.

There is sex abuse and spousal abuse. There is the unsolved Aguna crisis. There is a Shidduch crisis; the OTD crisis; the constant news stories about religious looking Jews defrauding the government... and baseless hatred galore. There is more divisiveness than ever in Orthodoxy today. Which results in seriously condescending attitudes about fellow Jews to the point of embarrassing them in public. We have learned nothing from that tragedy of the destruction of the temple brought about because of baseless hatred. It’s still there.

So yes, we have indeed brought these tragedies upon ourselves. And apparently we will continue to do so. Because as a people we can’t seem to do what it takes to live up to the standards God expects of us. Although there are individuals that do live up to those standards, as a people, we fail. Which we make note of every year at this time.

When will we ever become worthy of the redemption God has promised us? Hopefully soon - quickly in our day.

Are RCA Rabbis Orthodox?

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HaRav Ovadia Yosef, ZTL - Did he support a prenup?
In what can only be called a shocking development, YWN reports that 44 rabbinic leaders in Israel have declared invalid the RCA prenuptial agreement. Tha document requires a recalcitrant husband to pay a hefty support payment in cases of unresolved divorce.  And if used the Get (Halachic divorce) is void. It is considered a get Me’usa – a forced divorce. Halacha dictates that for a divorce to be valid, it must be given willingly by the husband. If he is forced to give it – then he obviously is not doing it willingly. Which voids the Get

The RCA prenup as I understand it requires that in cases of a divorce, if the husband refuses to give his wife a Get, he is required to pay her support payments of $150 per day. That would make most recalcitrant husbands more than likely to grant their wives a Get.

This prenup takes seriously the plight of Agunos - women who cannot remarry because they are still considered married. No matter whether there is a civil divorce; No matter how long they have been separated. The RCA does not consider it a Get Me’usa because the husband, if he chooses, can pay her the fine and not give the Get. If used extensively - the incidence of chained women will be dramatically reduced.

The RCA prenup has its detractors here in America. Some rabbis have objected to this and consider the hefty fine a form of force that might make the Get void. But I have never heard any of them make the kind of hard core declaration the Israeli leaders have. Not to mention the fact that the Prenup has its share of legitimate supporters. Respected Poskim of high stature are listed that include Rav Ovadia Yosef*, Rav Zalman Nechemiah Goldberg, Rav Gedalia Dov Schwartz, and Rav Asher Weiss. The RCA now requires all of its members that officiate at marriage ceremonies to use the prenup. Crafted 25 years ago by Rabbi Mordechai Willig.

And yet the declaration signed by these prominent Israeli rabbinic leaders is sharp in its rejection. They say that children of those women that remarry based on it are Mamzerim. Which according to Halacha may not marry into Klal Yisroel. And whose offspring for all time may not do so either.

Those who signed this declaration include respected rabbinic leaders of both Charedi and Religious Zionist camps. They who were not reticent in their condemnation. From YWN
In a document obtained by the Srugim website, signed by dozens of rabbonim, including chareidim such as Eida Chareidis Ravaad HaGaon HaRav Moshe Sternbuch Shlita, Rabbi Avraham Auerbach and Rabbi Shlomo Yosef Machpud, they attack the agreement and write about it among other things: “The truth is that this marriage agreement represents the destruction of religion truly, and leads to a fear of ‘eishes ish’ and mamzerus”.
HaGaon HaRav Avigdor Nebenzahl Shlita has also penned his objections, citing a rav who permits signing such an agreement is not an Orthodox rav and one should rely upon his halachic rulings.
Former Chief Rabbi of Hebron and Kiryat Arba Rabbi Dov Lior Shlita concurs, stating the document negates halacha and may chas v’sholom lead to serious issues of ‘get me’usa’, mamzerus, and the destruction of the kedusha of the family. He adds Chief Rabbis have and remain opposed to it and a document was released during the tenure of HaGaon HaRav Avraham Kahana Shapira ZT”L and HaGaon HaRav Mordechai Eliyahu ZT”L. 
I have to wonder what the motivation behind this was to come out with this declaration now. Where were they 10 years ago when the RCA first mandated it be used by all of it members? Why now? I also have to wonder why the widely respected (from right to left) Rav Nebenzahl has virtually declared the entire RCA membership not Orthodox? Especially after the Charedi controlled Chief Rabbinate were so willing to accept their converts? This is quite the contradiction!  You can’t be denied your Orthodox status and right to Paskin and then be told your converts are legitimate.

I am not making any accusations here. The Israeli rabbinic leaders do not make frivolous declarations. They are sincere Poskim. Sincere Poskim make declarations based on Halacha. Not politics. And if there is one thing that is known about Rav Nebenzahl - it is that he is 100% L’Shma. 

And yet I can’t help but notice a small detail in the YWN report that seems to imply that this was all about. It implies a political move. The target most mentioned is Tzohar. Tzohar has been in the forefront of criticizing what they believe are excesses of the Chief Rabbinate who they say (with good reason) has been taken over by Charedim. 

Charedi leaders in Israel are obviously not pleased with Tzohar. Perhaps Tzohar's encouragement that the Israeli public sign a prenup gave these rabbinic leaders an opportunity to completely delegitimize them. Perhaps they think that delegitimizing Tzohar is an existential issue. I don’t know. But I find it difficult to believe that Rav Nebenzahl would sign a document that is sourced solely in politics 

The question is where do we go from here? What if anything is the RCA going to do about this? How will they respond? And what happens to all the women that got divorced using this prenup and remarried and had children. These are serious questions that demand answers.

I cannot believe that these distinguished rabbis in Israel did this. Surely the RCA prenup was known to them. Surely they feared Mamzerus before now? Why did they wait?

*Update
It has come to my attention that Rav Yosef's position on the RCA prenup is unclear. That he supports it is being denied by some people including family members. Others say that he supported the concept of  prenup, but not necessarily the RCA prenup. Attempts to find out exactly what his true position was have not yet borne fruit. He is listed on the linked website as a supporter. But that may have been done in error.

The Increasing Chasidization of Orthodoxy

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Picture of modestly dressed women (Forward)
These are women who send their children to ultra-Orthodox schools, despite the educational compromises in secular studies, for the sake of a proper religious upbringing.  
So says Avital Chizhik-Goldschmidt in a Forward article. The subject of which is the erasure of women from the public square. And therein lies a large part of the problem. An educational system that sees every school trying to ‘outfrum’ their completion. Which feeds this phenomenon. And many Charedi parents seem to be buying into the Frumkeit chase.

The erasure of women is not a new issue. It has been discussed many times by many people. Including me. It will not go away.

In this instance the discussion is about a new forum for women called ‘Frum Instagram’. This, says Chizhik-Goldschmidt, is how many Charedi women are trying to counter the increasing phenomenon. 

(Why do Charedi glossies like Mishpacha Magazine not publish pictures of women? The bottom line of course. They want to appeal to as wide a readership as possible in order to increase their circulation numbers. The large and exponentially growing Chasidic world will not purchase magazines that have pictures of women in them. So the publishers are more than happy to accommodate them. This allows them to charge more for their ads. As always  - follow the money!)

That many Charedi women seem to be complacent about this erasure doesn’t mean others aren’t bothered by it. Which is why Frum Instagram is so successful.  

This online forum features pictures of Charedi women in a variety of ways – all of whom are dressed by the modesty standards of their community.  In this they seem to find some sort of refuge from the wider community’s erasure of them.

This might seem like a positive development to some in that it offers an opportunity for Charedi women to see and be seen – and not hide and be hidden as though they don’t exist. I do not, however agree this is so positive.  To me this seems to be a resignation to a new reality. It does nothing to change the emergent culture of erasing women from sight.

As I have in the said in the past, this relatively new phenomenon is not really based in Halacha. That should be clear from the numerous pictures of women in Charedi publications of the past. Including the now defunct Agudah publication, The Jewish Observer. These publications featured photos of Gedolim like R’ Moshe Feinstein together with his Rebbetzin. It is really only certain types of Chasidim that consider any picture of a woman, no matter how modestly dressed, to be immodest. 

It’s true that some Charedi publications like ArtScroll still do publish pictures of women. But there seems to be fewer of them every year. Even in places that have a moderate Charedi base like the Anglo community of Ramat Bet Shemesh (A) in Israel - it is now de rigueur to never publish a picture of a woman anywhere. This policy has becomes so pervasive in right wing Orthodoxy that even an illustration of a family meal at a Shabbos table won’t have any mothers in them as was the case in a recently published book A Yiddishe Kop by Gadi Pollack.

‘Welcome to the secret social media world of Orthodox Jewish women’ says Chizhik-Goldshcmidt.  ‘Frum Instagram’ now provides an outlet for Charedi women. 

The dean of the Women’s Institute of Torah Seminary/Maalot Baltimore Dr. Leslie Ginsparg-Klein makes a very valid point about one troubling aspect of this new phenomenon: 
“Girls and women are assailed with [immodest] images from [secular] media, and there is nothing to counteract those images.” “It’s very important for girls to see modest representation, to counteract the other images they see.” 
This should be obvious to anyone with a brain. However the fact that Frum Instagram might speak to this issue is not enough. Because the message of a picture being immodest for the general public has not been countered. Even though young girls may now have images available to them counteracting the onslaught of immodest role models in our culture, this does nothing to counter the idea that even role models like this are too immodest to be published! And what lesson do are young men learn from this? That all images of women are considered immodest. 

In short, a ‘secret’ site that features images of women dressed according to the strictest standards of modesty hardly solves the problem. It adds to it, in my view.

As noted there are a lot of Charedi women that seem to have no issue with the erasure of women from the public square. (At least that’s what they say when asked about it.) But there are plenty of women that have the the following attitude. From the Forward
“Pictures have a power that words do not,” wrote Rifka Wein-Harris of Kew Gardens, Queens, a graduate of Bais Yaakov Academy. “It is so crushingly hard already in this generation to be a frum girl. The pressures of perfection and conformity are not healthy ones and they cause grave distortions…Why then are we not giving our girls the benefit of seeing the remarkable diversity of what it is to be a frum woman?” 
She’s right. But it isn’t only about what girls don’t see. It teaches boys a level of modesty far stricter than that of the greatest Gedolim of the last century!A level that doesn’t exist outside of the Chasidic world and yet is becoming increasingly pervasive.

What kind of future does this portend? Are we headed for separate buildings at weddings? Are we headed to never taking a walk with a spouse? Are we headed to Burkas (or the like)? Are we headed to marriages being arranged entirely by parents with only one short meeting between a couple before engagement? Are we headed to a world so extreme that it would be unrecognizable to many Gedolim from the 20th century - except in Chasidus? 

Most of that is actually the case in the Chaisdic world. If things keep going in that direction unchecked that seems to be exactly where the rest of Orthodoxy (or most of it) is headed.

“Zionism Equals Brutality”

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Satmar's 'fun' camp activity on Tisha B'Av (YWN)
No - the title of this post was not uttered by Islamic fundamentalists. Nor was it uttered by a Palestinian. Or an Arab or Muslim. It was not uttered by  a neo Nazi, or skinhead, white supremacist  or any other antisemite. No, my friends, This sentiment is from our own people. And by ‘our own’ I mean fellow observant Jews. Jews that are considered by many to be the ‘Frummest’ among us.  Role models whose example of Frumkeit should at be admired and even emulated. And in  fact have been emulated in some ways.

For those who haven’t figured it out yet, I am talking about Satmar. Those that think only the extremists among them, or Netrue Karta have such a vile attitude about Israel are badly mistaken. This sentiment was expressed at a Satmar summer camp on – wait for it – Tisha B’Av! FromYWN: 
Thousands of boys from the Satmar camps in the Catskills gathered at the main campus in Napanoch NY, with smiling youngsters carrying homemade signs bearing messages such as “Israeli army is not for Jews.” Rows upon rows of chairs were set up on the camp grounds, where a large stage was adorned with banners in English and Hebrew bashing the Israeli government including “Zionism = Brutality” and “Forced draft into the immoral Israel Army is nothing but an attempt to uproot our Judaism.” 
Yes friends, if you want your children to have fun activities on Tisha B’Av, send them to a Satmar Camp. Because a ‘demonstration’  like this can be ‘lots of fun’. What better way to spend the day mourning for the loss of the Beis Hamikdash than this? Isn’t that what Tisha B’Av is all about? Having fun? And what better fun could there be than bashing fellow Jews?! Even religious ones if they in any way support the state or worse  - join the army ‘God forbid’.

The State of Israel is after all Amalek. So said their veteran camp director, Rabbi David Rosenberg. He quoted the original Satmar Rebbe saying that every generation is obligated to fight Amalek. (Someone should tell that to those ‘traitor’  Charedim that are not only members of the Israeli Keneset, but have even joined the coalition government of Amalek (Israel). And someone should tell that to the Israeli rabbinic leaders that have endorsed them doing that.

Why? Here’s why: 
Several campers addressed the crowd, explaining why the draft was destructive to yeshiva students. 12 year old Moshe Glantz, a grandson of the Satmar Rebbe of WIlliamsburg, had harsh words for the Israeli government and its Charedi supporters while Moshe Lefkowitz, son of respected Satmar askan Beri Lefkowitz, spoke passionately in English for the benefit of the members of the media who attended the protest. Lefkowitz explained how the State of Israel was created for the sole purpose of transforming Charedim into “simple heretics”. 
If there is any doubt about Satmar’s pure unadulterated hatred of fellow Jews - this should end it. They consider Israel’s founders and current leaders to be Amalek. They consider Charedi rabbinic leaders in Israel supporters of Amalek. And they are directly responsible for motivating all of the animosity against Charedi soldiers that has resulted in harm to them.

They have a right to believe that the State of Israel is illegitimate; that it is a violation of the ‘3 oaths’ mentioned in the Gemarah (forbidding a Jewish state to be established in the holy land). But they do not have a right to foment hatred that so often results in violent protests of even fellow religious Jews. Which they do in spades in the name of their founder.

I would love to see the following next year. I’m sure there will be a sequel to this. There ought to an a organized counter protest right in front of them – at the site where this ‘fun day’ took place. It ought to be attended by as many Orthodox Jews as possible. Jews of all stripes. Charedim, Centrists, and even the left wing.

Thousands of people ought to show up there next Tisha B’Av at this camp ‘demonstration’. The media should be informed. They should say, ‘Stop!’ ‘You are wrong!’ ‘You are causing a massive Chilul HaShem.’ ‘It endangers the Jewish people.’ ‘This kind of baseless hatred caused our exile and will only prolong it!’ ‘Palestinians –Especially Islamic fundamentalists will be only too happy to use this as propaganda aimed at the destruction of the Jewish State.’ ‘That may be your end game, but should it ever come to pass (God forbid) there would in all probability be a bloodbath!’

Satmar has to be shown that their views are rejected by the rest of the Torah world. And the world needs to be informed of that. Their constant claim that their view about Israel is the only authentic Jewish view is a lie! (Albeit one they actually believe).

Agudah’s rabbinic leadership should be in the forefront of such a protest. They should actually be the ones calling for it. Unfortunately this will never happen. Agudah leaders will never protest Satmar to this extent. That’s because they in fact do see them in a generally favorable light. Exemplars even - of Jewish behavior. That they disagree with their extreme views about Israel is just a Machlokes L’Shem Shomayim. I would agree if it just about a philosophic disagreement. But events like this go so far beyond disagreement that they must be stopped! I don’t understand why they don’t see that.

Hat tip: Levi Bergovoy


From Exemplary to Embarrassing

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Typical Lakewood resident taking a walk with his children (NJRTN)
A fascinating but not so flattering glimpse into the world of Lakewood can be found in a four part series in the New Jersey Real TimeNews.

Not long ago the New York Times featured an article that described Lakewood’s Ultra Orthodox Jewish community in glowing terms. The descriptions of the generous charitable contributions by that community even though they barely could make their own ends meet - was beyond admirable. Truly a Kiddush HaShem.  But now as a result of recent arrests for defrauding government assistance programs like Medicaid, its image has been tarnished - going from exemplary to embarrassing.

Lakewood is a dream come true for lovers of Torah study. Its primary Yeshiva, Beth Medrash Gavoha (BMG) has no peers in this country. It is the ‘Harvard’ or ‘Yale’ of Yeshivos. Having been founded by Rav Aharon Kotler as a pure transplant of the European Yeshiva model of full time Torah study only. It began with as few as 10 students in the 40s and has now grown to over 6500 students. Torah study there is of the highest caliber!

And along with it, the town of Lakewood has had a population explosion. What was once a sleepy resort town is now the 4th largest city in New Jersey.

The residents of Lakewood are mostly right Wing Orthodox Jews (although there is a small Modern Orthodox community there that actually predates BMG). And there are also still enough non Jews there that allow for a public schools system.

The arrests of prominent community rabbis for defrauding the government has shaken that community and tarnished its reputation.

On the plus side - that has resulted in the following event organized by… 
‘The Vaad, the committee of elders who lead the Orthodox community that… Earlier this month, nearly 1,000 people attended a community meeting organized by the Vaad with a panel of experts who explained who was eligible for government benefits – and what to do if a family has been collecting government assistance they did not deserve.’
"This is a time to look at yourself in the mirror and say, 'Am I eligible for these programs?,'" Rabbi Moshe Zev Weisberg, a member of the Vaad, told the crowd. This crisis in Lakewood is an opportunity for the community to reexamine itself, the rabbi said. "We need to look inside," Weisberg said.  
How did this happen? A variety of factors contribute to it. In my view, first is the fact that the Frum families are very large. Supporting them even without tuition worries can be backbreaking even for those families that have decent incomes: 
Lakewood has one of the fastest growing birth rates in the world. The dramatic increase in young Orthodox Jewish families, which often have multiple children, moving into town drove the birth rate to 45 births per 1,000 people in 2015. That is four times the state average.  
Add to that the cost of Jewish education and it should be no surprise that the financial burden on a lot of families is dire: 
The Orthodox Jewish community's more than 30,000 children largely do not attend the public school system even though their families are among the property owners paying taxes in support of the system. 
This does not give license to anyone to steal. And for the most part, Lakewood Orthodox Jewish residents don’t do that. But it does give rise to searching any and every avenue in the law to maximize what the government is willing to pay legally to recipients that qualify. Lakewood has become pretty adept at doing that.

In theory there is nothing wrong with that. But it is a slippery slope from taking advantage legally and into taking advantage illegality. Financial pressures are so great that doing something like understating income in order to qualify for government aid becomes a tempting way to alleviate their financial burden. Especially when ‘everybody’s doing it’.

And then there is the public funding of part of their educational costs. Lakewood’s parochial schools take full advantage of the public funding available to them. Because of their Lakewood’s large Orthodox Jewish population their votes have resulted in the following: 
The Jewish community has made their voices heard in a big way at the polls. Members of the Orthodox community make up the majority of the school board.
In 2012, the Lakewood School District began spending more on transportation for students than it does for standard K-12 classroom instruction. Much of the transportation funding is spent on the busing of Orthodox children to private schools.
Special education spending has also undergone a seismic shift. Lakewood has a high number of children classified as special needs students. Unlike many other districts, Lakewood pays to send a high number of its special needs students to private Jewish schools. Lakewood spends more private-school tuition for special education students than almost any other district of its size in the state. 
Again - nothing wrong with doing things legally. But it should be easy to understand why this has degenerated into some antisemitic acts by disgruntled non Jewish  residents:
Friction arises as a result of change. In Lakewood, this means the town leads the state in a less enviable category: hate crimes. 
This is how a dream can turn into a nightmare. I only hope that the city fathers can turn the tide there and change the paradigm. Because as things stand now things can only get worse.

We Have a Drinking Problem

There has been much talk in the media about the near epidemic level of opiate poisoning. Overdoses of heroin, an opiate, has been in the news a lot lately. Recently this problem has hit home. 20 year old Malky Klein, the daughter of a devout Chasidic family living in Boro Park, died of a heroin overdose. 

But opiate consumption is not the only problem we have. Consumption of alcohol is a problem too. And it long predates the opiate problem.  

In certain ways alcohol consumption is an even bigger problem. True the deaths due to alcohol poisoning are not as common (...or as commonly reported - I don't know which is the truer statement). But it is a bigger problem in the sense that alcohol consumption is a widely accepted social activity. (Among adults legally. Among minors illegally).

Not only is it socially acceptable, it is even encouraged in some Orthodox circles at least one day a year on Purim. Although many Rabbis and Roshei Yeshiva have put the brakes on their students doing it then, many have not and still encourage it. 

That it is legal and socially acceptable makes it ‘cool’ to get ‘high’ among young people.  The buzz one feels upon getting high is what getting drunk is all about. Which can be a lot of fun in the moment. But at the end of the day it all too often causes Chilul HaShem.

I see it all the time at weddings. Young Yeshiva students will sometimes get so drunk that they become wild and oblivious to people around them. Bumping into them and even knocking them down in wild dance.  

When challenged by a sober guest, about their wild dancing they will respond that they are performing the Mitzvah of being M'sameach Chasan V'Kalla - making the Chasan (and Kallah if she’s there) happy. These drunken Yeshiva students are selfish and insufferable. And yet, unfortunately, I occasionally see their Rosh Yeshiva or Rebbe either joining them in dance or showing their tacit approval of their ‘exuberance’.

In some cases, if the booze isn’t there (either because of hotel rules or the wishes of the host), these Yeshiva Bachurim will sneak in their own bottle. They don’t seem to care about the rules. Their interpretation of being M'sameach Chasan V'Kalla overrides those ‘stupid’ hotel rules! For them, getting drunk at a wedding is what weddings are all about, it seems. And their Roshei Yeshiva either approve – or don’t care.  This behavior crosses all Hashkafic lines. I’ve seen it among MO types and Charedi types.

Let me hasten to add that not all Yeshiva Bachurim are like that.  I can personally testify that I do see many Yeshiva students that are not like that. Telshe being one of them. I have never seen a Telshe Bachur behave in this way. 

I am not sure what percentage of Yeshiva Bauchrim get drunk. But clearly enough of them do to make it a source of Chilul HaShem. I can’t tell you how many times people have come over to me at a wedding and said something like, ‘I am never going to send my kids to a Yeshiva if this is how their students behave.’ I don’t blame them.

At the end of the day, this is a manifestation of pure selfishness. which ends up showing their true character. 

This phenomenon has spread into other areas recently. It seems to have become pervasive in certain summer camps. Here is how Yeshaya Dovid Braunstein of Lakewood feels about it – as expressed at YWN:

The topic I want to address is alcohol-drinking in camps. But not just any camps. I am referring to the elite “yeshiva / learning” camps. I have decided to leave the names of these camps out and hope that this letter alone will hopefully awaken the masses.
Please don’t start telling me that this is a minor percentage, because it’s not. This is a roaring problem that is largely being ignored and not being taken seriously by the people running these camps. I humbly question why the Roshei Yeshiva of these boys allow them to go to any of these camps as it’s no secret regarding the alcohol consumption at these camps. In fact, I have had many conversations with leading Roshei Yeshiva about this, and they just shrug their shoulders.
Just last night a bunch of these camps joined together to go to a well known amusement park. The day was capped off with a concert and a band with singing and dancing. I don’t think your readership needs to see the footage of the drunk boys staggering all over the place, so I’ll hold that for round two – If immediate action isn’t taken.
What are these camp owners waiting for? Do we need a few boys to die of alcohol poisoning before people boycott these camps? Why is the “zero tolerance for a smartphone” enforced but the drinking epidemic being ignored?
 
The description of what’s going on at these ‘learning camps’  sounds eerily similar to what I experience at weddings. But the problem does not begin in camp. As one YWNreaders noted in a rather harshly worded comment: 
Let me give you a little detail in what happens: The rule in all of these camps are NO DRINKING. But what happens is, you have these bachurim who are so used to getting drunk in their homes, in their shuls, in their Yeshivas, that they go behind the camps back and drink in the bathroom, in the forest….etc.

He ends his comment by placing the blame where I think it rightly belongs: in the laps of the parents, Roshei Yeshiva, high school principals, Shul Rabbis. (I would add peer group pressure as well.) This – he says – is where the drinking starts. In their homes, their Yeshivos, and in their Shuls every Shabbos at the Kiddush!

I think he’s right. The fact happens to be that we are responsible for our children’s behavior. When we aggrandize alcohol consumption in conversations among ourselves, talking about how smooth various brands are or how single malt scotch is better then blended whiskey, or how great a 12 year old bottle of scotch is , what do we expect our children to learn from that? Certainly not that getting drunk in public and behaving like animals is a Chilul HaShem. 

Instead they want to emulate their role models. And believe it or not, parents are usually the most important role models in a child’s life. 

It gets more serious when alcohol consumption becomes an addiction. Why that happens is beyond the scope of this post. I will only say that it a form of self medication to relieve the emotional pain suffered by people that are clinically depressed. A growing phenomenon all by itself which can be due to the variety of factors often discussed here. 

The bottom line is that either way, this problem needs to be taken seriously. And it isn’t.  At least not enough. I know it is a complex problem that intertwines with other problems. But the difficulty of finding a solution does not absolve us of the responsibility of finding one. 

The Letter

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Rav Aharon Feldman
Yet another troubling missive. This time from 2 prominent Charedi leaders: Rav Aharon Feldman and Rav Shlomo Miller. They have shown their  disdain for the State of Israel in a letter to students that will be spending time in a Yeshiva in Israel. This letter which has been published in the Baltimore Jewish Life - explains in detail how to qualify for deferments from the Israeli army.

I don’t really have an issue with telling American students to be careful about that. They have a right to know how to legally qualify for a deferment and to be careful not to make any mistakes. What is troubling to me is how they end the letter.

They call the Israeli army dangerous to one’s Mitzvah observance and spiritual health. They include Nachal Charedi in that warning. 

I don't know that much about Rabbi Miller other than the fact that he is a highly respected Rosh Kollel in Toronto, a Kanoi who has in the past been a zealous defender of Charedi values. But I know a bit more about Rabbi Feldman who is the main subject of my complaint. 

How sad that an American educated Rosh HaYeshiva who has in the past published some fine Jewish literature for the English reading public… a man who is the head of a Yeshiva known to facilitate their students attendance at a fine University in Baltimore - has such animus towards the institution responsible for the safety of all Israeli residents. Including the very students he urges to avoid going into that same army.

All Jews living in Israel for any length of time - or even those of us that don’t - should have an immense degree of Hakoras Hatov (gratitude) to the army. Gratitude for the sacrifices that even the most secular of soldier offers. Let alone the thousands of Hesder boys who both now give - and in the past have  given - six years of their lives alternating Torah study with army service (often taking the most dangerous assignments in groups). Does he really believe that the Hesder boys are endangering their spiritual health and dropping out of observance?!

Furthermore, to say that Nachal Charedi is included in this warning is truly mind blowing. How can he say that about all the devout Jewish soldiers serving in those units now? By saying something so outrageous he has unwittingly justified all of the verbal and sometimes physical attacks heaped upon religious soldiers in certain Charedi circles.

Even if I were to concede that every thing he says is true (which I absolutely reject!) where is the recognition of what the IDF is all about? Protecting not only these Yeshiva students but his own grandchildren living there? 

I suspect that having lived in Israel for so many years prior to his return to the US has something to do with his attitude. There is little doubt in my mind that this is how most Charedi leaders in Israel think. Israel is the devil. The army is the devil’s lair. Stay out!  Rabbi Feldman surely absorbed this mentality during his years there and brought it back with him when he returned to  Baltimore to become the Rosh HaYeshiva of Ner Israel. It remains unchanged.

To be clear, I have no illusions about the secular nature of the IDF. It is not a Yeshiva. Nor do I question the fact that there are influences there that can negatively impact one’s observance. But the fact is that there are two very clear options that cater successfully to observant Jews: Hesder and Nachal Charedi. 

Nor is it true that the regular army will necessarily hurt your spirituality. There have been countless idealistic religious American enlistees into the regular IDF that have served admirably. Their spirituality was not negatively affected at all. I strongly suspect that those whose religiosity is negatively affected already had issues with their observance and spirituality long before they ever set foot into the army. 

I wish I could say I’m surprised. But I’m not. This is not the first time Rabbi Feldman has bashed the state. Or in this case one of its important components.  He did it in a book published 7 years ago entitled, Eye of the Storm. Therein he engages in a polemic against the state that is little more than an angry one sided rant characterizing it as having no redeeming value.

Rav Aharon Lichtenstein took him to task for it at the time: 
(W)hen we note that the source and precedent cited (by Rabbi Feldman) had not merely sought to justify criticism but to be stirred to hatred; that “the parts which are not Jewish” did not allude to unhalachically converted pseudo-Jews but to presumed ideological aberrants; and when we realize that these include a very significant segment of the Israeli yishuv, as well as its Diaspora supporters–many of us will, understandably, be shaken. 
Rabbi Feldman’s lack of any expression of gratitude to the Israeli army reflects the mindset of far too many Jews on the right. It is certainly OK to criticize when appropriate,. If one believes there is something wrong, they have not only a right - but an obligation to say so. Especially if they are a public figure like Rav Aharon Feldman. But to do so without expressing the legitimate gratitude the army deserves is to slight every single soldier in Israel that ever gave life and limb to protect the Jewish people. It is also a slight to their families. And I protest it.

Progress on Issues of Sexual Abuse

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Images from JCW website
It never fails to shock me when people that are otherwise so respected – having earned it due their many contributions to the community - end up among the lowest, most disgusting people on the face of the earth.

But it shouldn’t really shock me by now that a prominent person ended up as a pedophile whose secret life involved sexually abusing many children. There have been so many.

There was Nechemya Weberman a once respected Chasid with ties to Satmar, who was viewed with admiration as a ‘therapist’ for ‘at risk’ Chasidic teens. He is now serving a 103 year sentence for abusing a young female ‘patient’.

There was recent arrest of Daniel Greer, once a hero to his community for all he legitimately contributed - not only to his community but-  to all of Jewry. He now awaits trial being charged with some of the more heinous sexual crimes I have ever seen in print. There are so many stories like that. I should be used to it by now. But I’m not. 

This has once again happened in Israel with a man that was seen as an icon in his community. Rabbi Aharon Shlomo Lisson, a Chabad Mechanech from Beitar Illit, has been sentenced to seven years in prison for sexually abusing three brothers (from 2009 to 2014). 

Yankie Rainitz, a  survivor with the courage to identify himself tells the story (in Hebrew) of the sexual abuse he suffered from Rabbi Lisson on his Facebook page . It has been translated by Manny Waks.  

JCW, an organization dedicated to fighting sex abuse published a translation of that post on its website as well as the translation of a powerful Hebrew editorial about this by COL, the largest Chabad website in Israel.

Yankie’s story is devastating beyond words. I wish I could say I have never heard anything like it. But his story has become an all too familiar one. He described in detail when - as a 12 year old 8th grader – how he was groomed by this highly respected rabbi (and secret predator). He was eventually made to think his sexual abuse was a personal reward from his teacher, highly spiritual in nature, and the best thing in the world that could have ever happened to him. Multiple times. Until Yankie aged out. Lisson then went on to his next victim – Yankie’s younger brother. Also 12 by that time.

How is it possible that such accomplished people are actually so evil? I am inclined to think they do not believe they are doing anything wrong. They actually believe that they are expressing love. They keep it secret because they know what society will think about it if they find out. But in his own warped mind they thinks they are doing something wonderful for both their young victim and themselves. The world just doesn’t understand that level of love. That is the only way I can understand how someone so accomplished and so contributing to the world could do something like this.

But it doesn’t really matter what he thinks. The damage is real and so severe that it causes lifelong emotional distress to the survivor that often reads to depression dung abuse and even suicide.

In almost all cases like this, the survivor undergoes abuse in two phases. Once from the abuser and the second time from a community in denial of even the remostest possibility that such a respectd figure could do something like that. So as Yankie points out in his Facebook post, they turn on the survivor.

It took a lot of courage for COL to publish an editorial like this. Which JCW translated and featured on its website. One can see by their opening words how seriously they are taking this. It is - as JCW notes - unprecedented: 
What you are about to read is not a standard article. It will not increase respect for Chabad Chassidim or the community. Many of you may believe that our dirty laundry should not be aired in public. But the city is burning. If there ever was a moment to put our honor aside, this seems to be the moment. 
Yankie’s description of abuse as well as his excruciating experiences at trail is a must read. As is the Chabad editorial.

In a related event, Ha’aretz reports that the rabbis of Bnei Brak are finally  coming to term with their community’s sex abuse issues: 
In a rare gathering that took place Saturday night in Bnei Brak, ultra-Orthodox (Haredi) rabbis and activists spoke publicly for the first time on the issue of pedophilia in the community, providing a glimpse into how attackers and victims are dealt with. 
I still believe they have a way to go before they are fully on board with protocols established by survivors in conjunction with the police and therapists specializing in abuse. But they have come a long way since the days of denial and sweeping abuse under the rug.

For example, Rabbi Chananya Chollak [chairman of the Ezer Mizion aid organization]. Made the following startling admission: 
Unfortunately, assaults on children are nothing new. Almost every week there’s an incident, in our community as well, to our great regret. There was a story in Bnei Brak a while back. Twenty-eight children were assaulted within 10 days, three of them girls who were hospitalized.  
Rabbi Shlomo Levinstein, of the Mishmeret Hakodesh Vehahinukh (“Guardians of Holiness and Education”) organization, said the following:
“When we know who the attacker is, there is sometimes an option to deal with it in the community. We know how to do this, either through the Mishmeret Hakodesh or through Rabbi Chananya Chollak … We have ways of sending people for treatment and we do so with a waiver on medical secrecy. When we don’t know who did it, we call the Israel Police.”
He added, “Our community has all sorts of sensitivities that don’t exist in other populations. When police are called, the detectives don’t know our language and can sometimes ask things that a child wouldn’t know what they want of him. Sometimes we arranged to have children questioned in Rabbi Chollak’s office, and that’s acceptable to the police...” 
I believe this is a big step in the right direction. That they still require speaking to rabbis first is at least being done in conjunction with the police. Hopefully this ‘joint’ effort will bear fruit  and will significantly reduce the incidence of sexual abuse.

I do however have strong concerns about the following comment he made: 
(T)he first thing that must be done is to protect the children – that is, to warn them not to speak to strangers. 
This approach implies that strangers are the ones to be wary of. We now know that abuse most often comes from someone they know and respect.. As was the case in the above mentioned cases. If they do not make sure that this message is clearly imparted to their young people, they have not really prepared them at all.

Speaking Loudly and Carrying a Big Stick

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No, I do not think World War Three is around the corner. Although it might seem like it to some pundits who have criticized the President’s tough words with respect to North Korea. This is unlike predecessor administrations that have tiptoed around North Korea’s aggressive nuclear policies. Policies that are in violation of past negotiated agreements with the US. Trump has been very clear about the consequences of an attack against any part of the US or its possessions. Guam the target of North Korea’s belligerent words being one of those. 

Trump may not have used the word ‘nuclear’ but it was surely implied in his warning to them: 
“North Korea best not make any more threats to the United States,” “They will be met with fire and fury like the world has never seen.” 
These words are similar to those used by President Harry Truman in 1945. He spoke them just before he ended World War II by mass murdering hundreds of thousands of Japanese civilians at Hiroshima and Nagasaki in what was the first - and thus far only - use of nuclear weapons.

The reactions to Trump’s warning were predictable. Democrats called them irresponsible and said it could lead to a catastrophic war with hundreds of thousands of casualties.

So too were a few of Republican responses. Like John McCain for example. Although I voted for him and agree that he is an American hero (and am very sorry to hear of his cancer diagnosis) it is clear to me that he hates the President for insulting him by casting aspersions on his hero status. I don’t really blame McCain for feeling that way. But I take his all his criticism of the President with a huge grain of salt because of it. He has been in the forefront of undermining Trump at every turn. So much so that he voted against his own party by voting down further action on repealing and replacing Obama’s Affordable Health Care Act (Obamacare).

(For the record, I am not one of those that thinks Obamacare is so bad. I actually agree with the Democrats on this and think it ought to be repaired, not repealed and replaced. I mention this only to show that McCain, a man who claims to want to repeal and replace, has done his best to undermine every attempt by his party under this President to that. His motive for voting that down is  transparent - despite his ‘explanations’.)

Back to North Korea. I completely agree with the President here. One might think he has gone rogue again – against the advice of his own administration. Which would not be out of character for him. But as a spokesman for the State department said at a briefing yesterday, the entire administration is ‘one’ on this issue. I think Secretary of Defense James Mattis demonstrated that unity with the following:     
North Korean leader Kim Jong Un should "take heed" of the United Nations Security Council's "unified voice," referring to recent sanctions issued against the nation, and called for the country to "cease any consideration of actions that would lead to the end of its regime and the destruction of its people."   
There is no doubt in my mind that the US is ready, willing, and more than able to annihilate North Korea and its people in a single nuclear moment - if they chose to do so.  But they won’t use nuclear weapons because they won’t have to. The US has enough conventional weaponry to do the job handily. 

Why is this happening now? Unless one is living under a rock it is clear that North Korea’s Kim Jong Un has abandoned all sanity (as if he ever had any) and has proceeded full speed to develop North Korea’s nuclear capability. He has done this to the point where he now has Inter Continental Ballistic Missiles (ICBMs) capable of reaching the American mainland as far as Chicago. And he has developed a nuclear warhead small enough to place on top of those missiles.

The US - through its skillful UN Ambassador Nikky Haley - has convinced the entire security council (including both Russia and China - its political patron) to unanimously place a boycott on trade with this regime until they abandon their nuclear program.

Kim Jong Un has responded by threatening to attack the United States with one of it missiles in retaliation to the boycott. That is what generated the Trump administration response. Unlike his predecessor, if Trump’s line in the sand is crossed, the consequences for North Korea will be dire. It will – as Mattis promised - be destroyed.

Democrats are making this sound like the beginning of World War Three. Their thinking is that China will not allow its influence there to be ended without a fight. Which might result in a nuclear conflagration that would end civilization. But I do not believe they will risk going to war with the United States with an erratic leader like Trump calling the shots.

The China of today is not the China of Mao Tze-tung, the patron saint of China. There was little for China to sacrifice in Mao’s time. China is a modern country today with a thriving economy that - while still officially communist has modified it to the point that it is doing business with the West. To the benefit of its people whose lives have been immensely improved because of it. China is not interested in challenging a man who they think might go nuclear in response. Literally.  I do not believe that hanging on to North Korea is worth it to them. They will in my view let it go if push comes to shove.

There might be some saber rattling threats by China about not destroying its ally, But in my view, that will be the extent of their response. Besides - the fact that they support the boycott shows that they fear a nuclear armed North Korea as much as the rest of the world does.

What about South Korea? They truly are at risk. War with the North will probably result in heavy casualties for them. But with the help of the US, they will prevail. This war will not have the same outcome as the last Korean war. It will be quicker with far more casualties inflicted on the North by orders of magnitude until they are destroyed!

Kim Jong Un has called the President’s threats a bluff. I guess he thinks Obama is still in office.

My hope is that someone will shake some common sense into Kim Jong’s head. And make him realize that there is a new sheriff in town who will not let his red lines to be crossed without consequences. And that his very existence, that of his country, and his people are at stake. He has to know that war with the US means annihilation.

Lest anyone think that Trump’s real goal has been regime change all along, Secretary of State Rex Tillerson has made clear that this is not the case. The goal is only is to denuclearize North Korea. But along with this ‘carrot’ the US is now threatening a ‘stick’. And the US has some pretty big sticks  and a President willing to use them.

I just wish the critics of the President would look aside at his boorishness, his name calling, his tweets, his insults, and all those other things that make him the most embarrassing President in US history.

Trump is right on this issue and we ought to say so. And not let our animus cloud our judgment. Saying we will be more secure by backing off or ignoring North Korea  - is the policy of the past. It hasn’t worked. The entire world knows that now.

I agree with Senator Lindsay Graham - a frequent and harsh critic of the President. He knows that when someone is right – he is right. Even if he hates that person, which - as a close friend of McCain and himself having been insulted by Trump - he surely does. Here is what he said: 
“There are two scenarios where we would go to war with North Korea,""If they attack Guam or some other American interest or our allies, or if they try to keep developing an ICBM with a nuclear weapon." ( Trump will) "never allow North Korea to have an ICBM missile that can hit America with a nuclear weapon on top.” 
While Graham said he wants to check with Japanese and South Korean intelligence on Kim Jong Un’s nuclear weapon process, he added that he hopes diplomacy will be the solution, because sanctions have not worked. 
“We have two bad choices, that is to let them get a missile to hit America or to go to war to stop them,” Graham said. “China should have two bad options. Either deal with a nutjob in your backyard or realize there’s going to be a war in your backyard.” 

Barking Up the Wrong Tree

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Attorney, Rabbi Dov Halbertal
One would think that a man who once argued that Israel should separate ‘church and state’ would not have had the kind of outburst he had at Hebrew Univesity. It's counter intuitive. But That is exactly what happened. Rabbi Dov Halbertal, an attorney that at one time lectured at the school apparently went into a tirade over women saying Kaddish at a a couple of Mincha Minyan there. According to Israel Hayom, Halbertal said:
…women could not say kaddish in an Orthodox synagogue, that the university was turning into a Reform synagogue 
I can understand why he said that. But I see no problem with a woman doing that. Although I am generally opposed to violating a particular Shul’s practice, there is no clear violation of Halalcah in doing so. I have ample anecdotal evidence of women saying Kaddish in a mainstream shul without anyone protesting it. Including the rabbi.

But according to Rabbi Halbertal a woman saying Kaddish is a clear violation of Halacha. He accused the school of turning into a Reform synagogue! This happened twice and created a real scene the second time: 
Halbertal proceeded to shout at the women and demanded that they get out. Some of the other men joined him, while others objected and told him he was embarrassing the women, which was a worse offense than their saying kaddish. The shouting and arguments continued for several minutes. 
The issue here was not that there was no Mechitza. This happened in the hallway – a temporary location while their Shul is being renovated. There is no requirement of a Mechtitza outside of a Shul. A couple of women joined the Minyan  but stepped back when some of the men protested. 

That should have ended it. Women wanted to say Kaddish and they should have been allowed to do so without a fuss. Even if one believes that a woman is forbidden to say Kaddish, embarrassing them with this kind of tirade is a far bigger problem. He had no call to do it. One can – and certainly should - rely even on a Daas Yachid (a singular Halachic opinion) of high caliber like the Tzitz Eliezer before embarrassing another human being.

I don’t know why an educated person that cares about his fellow Jews would do something like that, unless it is out of ignorance. But I can’t believe he doesn’t know that there are Poskim that permit it. Perhaps he felt he was simply fighting the advance of feminism with his outburst. I don’t know. But this was not the place to do it. In my view Halbertal’s protest was a setback.

It isn’t feminism that is the enemy. The ‘enemy’ is when it is inappropriately applied. Such as I areas of women in the rabbinate. Or ‘Partnership Minaynim’.  

Rabbi Halbertal was widely known to frequent the home of the late Gadol, Rav Elyashiv. So it is pretty clear where his sympathies lie. He is Charedi. Can this be the reason for his zealotry? Was he just trying to establish his Charedi credentials? Who knows. But in this case he was wrong, eve by Charedi standards. And if I were him I would apologize to those women; to all the people that witnessed it; – and to the school for calling them Reform.  And he should do so publicly since this incident has hit the media.

Racist or Antisemite? No. Responsible? At Some Level, Yes.

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Demonstrators clash in Charlottesville (CNN)
Once again Trump’s ineptitude is being misinterpreted. From the Boston Globe, here is what happened: 
The city of Charlottesville was engulfed by violence Saturday as white nationalists and counter protesters clashed in one of the bloodiest fights to date over the removal of Confederate monuments across the South.
White nationalists had long planned a demonstration over the city’s decision to remove a statue of Robert E. Lee. But the rally quickly exploded into racial taunting, shoving, and outright brawling, prompting the governor to declare a state of emergency and the National Guard to join police in clearing the area. 
From ABC News this is the response from President Trump: 
President Donald Trump is condemning "in the strongest possible terms" what he's calling an "egregious display of hatred, bigotry and violence on many sides" after clashes at a white nationalist rally in Charlottesville, Virginia. 
As he was leaving  the press conference where he stated this, he was asked by a reporter whether he wanted the support of those people. He turned away without answering her - with a look of disgust on his face. Some might take this as indicating that he does not want to disavow their support. I see it as being so disgusted by the question that he didn’t deem it worthy of a response. He is obviously sick and tired of being called a bigot at any level. It’s too bad that he keeps doing things to reinforce that image. And that there is a media willing to assume the worst.

One of the many things that is predictable about the President is his ineptitude at expressing his views on a variety of issues. His critics are focusing on the following portion of his response: ‘violence on many sides’.  He seemed to be equating the anti bigotry counter demonstrators with the racists demonstrators. Some are saying that this is yet another example of Trump’s latent bigotry and antisemitism.

It is true that he seemed to be blaming the violence on both sides. But does that mean he sees them in equal terms? I don’t thinks so. To use this as a proof that in the deepest recesses of his mind he is a bigot and somehow supports these people flies in the face of a lifetime of racial and religious tolerance. For example as it applies to antisemitism there is no possible way that a father who so dotes over his Jewish daughter, and values his Jewish son in law as much as he does – that he could at the same time be some kind of antisemite . It goes against all common sense.

I say this as a Jew - someone who those antisemites would lynch if they could get away with it! If anyone should be disappointed at Trump’s reaction it should be me. But I can’t jump on the ‘Trump is a racist and antisemite’ bandwagon because I just don’t think he is. 

As an aside, I’m glad that at least his daughter came out and said what her father didn’t. From Business Insider
"There should be no place in society for racism, white supremacy and neo-nazis," Ivanka Trump  tweeted  on Sunday morning. 
Unfortunately it isn’t only his critics that interpret him that way. It is the very bigots that he condemned. They see it as some sort of ‘sly’ support that he said  ‘violence on many sides’ - in effect blaming the counter protesters as much as the bigots. Thus somehow supporting the bigots.  But that is ridiculous on its face. He clearly condemned racism. That he didn’t call out the specific racists is in large part due to his ineptitude, in my view.

That said I have to ask, does the President share any responsibility in what happened in Charlottesville, Virginia? In a very limited and unintentional way, yes I think he does.  On the one hand those Neo Nazis, racists, and white supremacists did not become racists because of Donald Trump. They have been racist before they ever heard of Trump.

On the other hand, once they became aware of Trump and his campaign, many of them believed they had been given license to be more proactive in expressing their views. They supported a man they believed might be one of them but in the ‘closet’ about it. And now that he is in office, their license to express those views has been multiplied

The protests in Charlottesville were about the city removing a statue of Confederate General, Robert E. Lee. This was a perfect opportunity for them to stage a protest. Protesting the removal of a Southern icon would bring them support they would not otherwise get.

They applied for a permit, got one, and held their rally. This was met with a counter demonstration.

That there are counter demonstrations  against bigotry is just fine. People have a right express their views. But when things turn violent – it is not fine. Things escalated to the point of violence and death as some deranged bigot decided to drive his car into the crowd of counter demonstrators, killing one person and injuring 19 others.

I am not blaming the victims here. But I have to wonder what would have happened had there been no counter demonstration. If those racists and neo Nazis would have been ignored, no one would have gotten hurt. And there would have hardly been any media publicity about it.

Now I take a second place to no one when it comes to opposing bigotry in all its forms. As a Jew and subject of their hatred that should be obvious. That it exists in even relatively minuscule numbers in this country is unacceptable. It ought to be eradicated. And the President isn’t helping. His ineptitude as demonstrated here once again - does the exact opposite.

But neither does it help when there are counter protests that have the potential for violence. Had anyone asked me, I would have said ‘don’t do it’. Ignore them. Let them have their demonstration. No decent human being will be swayed by these bigots.

To the extent that there was a will to express opposition - it should have verbal or in print – away from the site. If that had happened the three people that died (directly and indirectly) would still be alive and there would not have been an estimated 34 total injuries. There is a right time to protest where violence is justified. In my view this was not one of those times.

An Initial Analysis of Rabbi Moshe Sternbuch’s Teshuva on the Beth Din of America’s Prenuptial Agreement

Guest Contribution by Rabbi Michael J. Broyde

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Rabbi Michael J. Broyde
Rabbi Mark Dratch, Executive Vice President of the RCA sent me their recent declaration in response to recent challenges by prominent Israeli rabbis to its prenuptial agreement. The RCA declaration reads as follows: 
Recent claims challenging the halachic validity of the Rabbinical Council of America's Prenuptial Agreement threaten women by undermining the single most effective solution to the agunah problem.
While we recognize the diversity of halachic opinion, the Rabbinical Council of America, the leading organization of Orthodox rabbis in North America, stands proudly behind its Prenuptial Agreement authored by Rabbi Mordechai Willig, shlit"a, and endorsed by leading rabbinic authorities in the United States and Israel, including: Rabbi Ovadia Yosef, zt"l; Rabbi Zalman Nechemia Goldberg, shlit"a; Rabbi Yitzchok Liebes, zt”l; Rabbi Gedalia Dov Schwartz, shlit"a; Rabbi Chaim Zimbalist, shlit"a; and Rabbi Asher Weiss, shlit"a. Copies of their endorsements are available at http://theprenup.org/rabbinic.html
"Despite any detractors, we will continue to advocate for the use of the Halachic Prenup," said Rabbi Elazar Muskin, president of the RCA. "Combined with continuing education and advocacy, we hope to not only ease the plight of agunot but to erase this terrible disgrace from our community." 
Following that Rabbi Michael Broyde sent me a lengthy response to Rav Moshe Sternbuch’s critique of the aforementioned prenup. Rav Sternbuch is by far the most important figure challenging it. An appropriate response should not be limited by space.  It is with that in mind that I am happy to publish Rabbi Broyde’s response to Rav Sternbuch - even though it is by far the longest post  (20 pages) to ever appear on this blog. His words follow a brief description of Rabbi Broyde's credentials. 

Rabbi Michael J. Broyde is a Professor of Law at Emory University and the Projects Director of its Center for the Study of Law and Religion.  He served for many years as a chaver [member] of the Beth Din of America and was the menahel [director] for a period of time as well and was very much involved during that time in the BDA Prenuptial Agreement  He has written more than a dozen articles on various prenuptial solutions to the agunah problem in America, starting with his discussion of the New York Get Law in Tradition in 1995, including a book on the agunah situation in America and more recently an article in the Hebrew Torah journal Techumin on a different kind of prenup named the Tripartite agreement and many other articles.  This article is forthcoming (with some additional footnotes and other small changes) in the Jewish Law Annual: Toronto Conference Volume and Michael Broyde is grateful to the Jewish Law Association for granting him permission to post this prior to formal publication.

I.       Introduction


Prenuptial agreements have been widely hailed both within the Jewish law community (and even by popular media outlets) as a compelling solution to the modern agunah problem of husbands refusing to grant give their wives Jewish divorces even after the functional dissolution of their marriages.[i]  These agreements vary widely; some are simple, others more complex; some merely commit both spouses to adjudicating the giving of a get in a particular beit din, while others go further in providing failsafe mechanisms designed to ensure that the husband gives and that the wife accepts a get in a timely manner.[ii] 

Perhaps the most commonly used document – certainly within the American Modern Orthodox community – is a prenuptial agreement developed by the Beth Din of America in cooperation with the Rabbinical Council of America and in consultation with prominent rabbinic authorities in the United States and Israel.[iii]  This document, hereafter referred to as the “BDA Prenup”, attempts to solve the contemporary agunah problem by (1) committing both spouses to binding arbitration before the Beth Din of America over the issue of the giving of a get, and (2) providing that once the couple separates, the husband will be obligated to pay the wife $150 per day until the giving of a get in fulfilment of the husband’s Jewish law obligation to support his wife during their marriage.[iv]  The first mechanism authorizes the Beth Din of America to oversee the divorce process, thereby avoiding the issues of forum shopping and spousal disagreements over which beit din to appear in, which lie at the root of many agunah cases.[v]  The second mechanism creates an incentive for the husband to quickly comply with any order from the Beth Din of America to give his wife a get, since delaying the giving of a get results in his being liable for the liquidated amount of daily spousal support provided for in the document – an obligation that can if necessary be enforced in state court.[vi]

The BDA Prenup is structured this way so as to not directly coerce or even legally pressure a husband to give his wife a get, and instead formalizes and enforces the husband’s preexisting but civilly unenforceable Jewish law obligation to provide his wife with a reasonable standard of living.[vii]  This indirect incentive for the husband of a permanently separated couple to formalize their divorce by giving a get is important because Jewish law requires that a get be given by a husband willingly.[viii]  Thus, if a state court were to order a husband to give his wife a get under threat of sanctions for contempt, a get given pursuant to such an order would be invalid under Jewish law.[ix]  The same is true when a beit din improperly applies coercive measures to compel a husband to divorce his wife; the get is invalid, and the couple remains married in the eyes of Jewish law.[x]  While Jewish law does authorize the use of certain measures to pressure husbands to agree to divorce their wives, these measures can only be utilized in situations where in the eyes of the beit din the husband is legally obligated to grant his wife a get.[xi]  There are very many cases, however, in which many rabbinic authorities would agree that it is wise, prudent, and appropriate that a couple be divorced, but where there are not clear adequate grounds for imposing on the husband a halakhic duty to give a get or, therefore, for applying direct pressure to convince him to do so.[xii]  Moreover, it is generally accepted that a get might be considered to have been given under duress even if the husband had previously agreed to subject himself to some kind of coercive penalty for refusing to grant his wife a divorce.[xiii]  Since it is imprudent to utilize a mechanism that could produce gittin that might possibly be invalid, the BDA Prenup does not utilize the self-imposed penalty model to help prevent the agunah problem. 

Instead, the BDA Prenup is carefully structured so as to avoid the critical concern of a coerced get.  The BDA Prenup memorializes a Jewish husband’s halakhic obligation to support his wife.  During the course of a couple’s peaceful cohabitation as husband and wife, this obligation is fulfilled without notice, as the couple shares finances, pays for their home, groceries, clothing, and other necessities together in a collaborative and cooperative way.  The Prenup merely makes clear that if a couple permanently separates and thus concludes their ordinary course of keeping a marital home together, the husband remains obligated to provide a specific amount of daily spousal support to the wife for as long as they remain married in the eyes of Jewish law – that is, until he gives her a get.  The husband is left technically free to withhold a get, but if he chooses to do so, he must bear the burdens and duties of marriage by continuing to support his wife at the agreed-upon rate.  Since husband’s who are not living with or maintaining any actual relationship with their wives are unlikely to want to shoulder the financial responsibility of supporting them in a reasonable standard of living, the BDA Prenup’s spousal support provision provides a strong incentive for the giving of a get soon after the functional dissolution of a marriage.[xiv]    

When utilized, the BDA Prenup has proven to be a highly effective tool for insuring that timely giving of a get.[xv]  Additionally, it has been upheld as legally binding and enforceable by American courts.[xvi]

The BDA Prenup is not without its detractors, however.  In 2015, Rabbi Moshe Sternbuch, a prominent halakhic authority for the hareidi community in Israel issued a ruling strongly critical of the BDA Prenup.[xvii]  This article explains why Rabbi Sternbuch’s analysis of the issue is not persuasive.  Part II provides a brief overview of the five principal arguments offered by Rabbi Sternbuch for why the BDA Prenup does not succeed in avoiding the problem of a coerced get, and for why the Prenup – and prenuptial agreements in general – are a bad idea as a matter of communal religious policy.  Part III presents responses to each of Rabbi Sternbuch’s claims in order to explain why the BDA Prenup rests on solid halakhic foundations. Part IV concludes with some closing observations regarding several important and interesting methodological and jurisprudential issues raised by Rabbi Sternbuch’s responsum, which have broader relevance to Jewish law analysis and decision making in areas far beyond gittin and the agunah problem.  

II.    Rabbi Sternbuch’s Teshuva


In the summer of 2015, Rabbi Moshe Sternbuch, the Av Beit Din of the Edah Chareidit in Israel, circulated a responsum criticizing the BDA Prenup that explains why, in his view, the Prenup amounts to “a literal destruction of the faith, and an obstacle that creates concerns about adultery and multiplies mamzerim among the Jewish people.”[xviii]  Rabbi Sternbuch’s position rests on several grounds, some legal, others factual, and still others rooted in extra-legal policy concerns.  This section explains each of these objections to the Prenup.

1.      Later Authorities Rejected the View of the Rema on which the BDA Prenup Relies


Rabbi Sternbuch’s first objection to the BDA Prenup is that its apparent reliance on the view of R. Moshe Isserles, that a get given under the cloud of a previously-accepted, self-imposed penalty for withholding the get can be considered valid once given, is misplaced.  On this question, R. Joseph Karo ruled that such a get is invalid, and that therefore the husband should be formally released from this prior commitment prior to his giving of the get.[xix]  Rema, however, clarifies that in his view, “if [the husband] accepted fines upon himself in case he later refuses to divorce [his wife], this is not considered coercion, for the giving of the get is a separate issue, and he can [if he wishes] pay the [self-imposed] fines while refusing to grant the divorce.”[xx]  The Rema himself notes that such a get is valid only after the fact, and that ideally, a get should not be given until any liability the husband may have due to self-imposed penalties for refusing to grant his wife a divorce is legally waived.[xxi]  Moreover, Rabbi Sternbuch notes that some later authorities have disagreed with even the Rema’s post hoc validation of a divorce granted under such conditions.[xxii]  These authorities include the Mishkenot Yaakov[xxiii] and Arukh Hashulkhan,[xxiv] all of whom object to the possibility that a get given by a husband in order to avoid liability for self-imposed penalties for get refusal.[xxv]

After noting this rabbinic opposition to the Rema’s view, Rabbi Sternbuch makes a methodological point.  Given the gravity of matters of marriage and divorce in Jewish law, it is improper for contemporary decisors to resolve the dispute between R. Moshe Isserles and his interlocutors in favor of the former’s more lenient ruling.  “In our generation, where we are orphans of orphans, which scholar has the strength to stick himself out and uphold this prenuptial agreement based on the rulings of the Rema and Chazon Ish, and to determine a matter of marital law, which is among the most stringent [areas of law], and not be concerned for accounting for all these other later decisors [who disputed the Rema’s view].”[xxvi]

2.      A Husband’s Consent to the Terms of the BDA Prenup is Not Binding


Rabbi Sternbuch next argues that the a get given under the pressure of the BDA Prenup’s spousal support provision is a legally invalid coerced get because a husband’s signing the Prenup prior to the marriage does not actually create a binding obligation to abide by its terms at the time of divorce.  Since at the time he grants the get the husband is not halakhicly bound to uphold the terms of the Prenup, any beit din’s enforcement or threatened enforcement of the spousal support provision amounts to a coercive penalty to which the husband did not previously consent.  Consequently, such pressure is best characterized not as the “self-imposed penalty” (kones es atzmo) allowed by the Rema, but as overt, non-consensual financial coercion of the husband, which surely invalidates the get.[xxvii] Thus, even if one were to grant the legitimacy of relying on R. Isserles’s post hoc validation of a get given under the cloud of a self-imposed penalty for not granting a divorce, a get given through use of the BDA Prenup remains invalid. 

Rabbi Sternbuch supports this position by referencing a ruling issued by R. Samuel de Medina, the Maharashdam.[xxviii]  The Maharashdam dealt with a case in which a husband willingly took an oath to uphold the decision of an arbitrator appointed to mediate between himself and his wife.  The arbitrator ultimately ordered the husband to divorce his wife.[xxix]  The Maharashdam ruled that if the husband was compelled to carry out the arbitrator’s order, this would be considered a coerced get, and would therefore be invalid.  He reasoned that this case was different from one in which a husband accepts a specific self-imposed penalty for refusing to give a get, where the get could be considered valid after the fact according to some authorities.  In this case, the Maharashdam said, the husband’s earlier oath to respect the arbitrator’s decision did not bind him because “perhaps at the time he swore he never considered that the arbitrator might order him to divorce her.”[xxx]  In other words, according to this view, a self-imposed penalty is only binding if the specific penalty was known at the time the commitment was made, or if the person making the commitment considered that he would later be subject to a specific order as a result of his present commitment. 

Based on this, Rabbi Sternbuch concludes that the husband is not bound by the spousal support penalty provision of the BDA Prenup because “it is possible that [when he signed the Prenup] before the marriage, he never considered that they would later separate – and it was only in reliance on this assumption that he agreed to obligate himself [to pay the spousal support].”[xxxi]  If the husband’s earlier acceptance of the terms of the Prenup is consequently not binding upon him, then, if he divorces his wife in order to avoid having to pay the assessed spousal support, he is effectively being coerced to give a get under the pressure of a penalty that he did not actually accept upon himself.  A get given under such circumstances, Rabbi Sternbuch writes, is invalid even according to the Rema.[xxxii] 

3.      The BDA Prenup’s Spousal Support Provision is Functionally a Coercive Penalty


Rabbi Sternbuch further argues that a get given under the cloud of the BDA Prenup is invalid because all parties to the process understand that the spousal support provision is designed to put direct, halakhicly-unacceptable pressure on the husband to give the get.[xxxiii]  Rabbi Sternbuch notes that in his view, the Prenup relies on a ruling of the Torat Gittin, who held that a get given in order to avoid liability for some self-imposed penalty is not considered coerced and is not invalid so long as the giving of the get and avoiding the liability are not expressly made to be contingent on each other.[xxxiv]  The reason for this ruling, Rabbi Sternbuch writes, is that so long as there is no express relationship between the giving of the get and the avoidance of liability for the penalty, one cannot truly say that the threat of the penalty is being used to pressure the husband to give the get.  Instead, the penalty exists for some other reason, and the husband only happens to incidentally avoid the liability by giving the get.[xxxv]  Moreover, while all parties to the arrangement may understand the quid pro quo that is at play, the Torat Gittin holds that “the issue depends on what is said rather than on what the parties intend.”[xxxvi]  Thus, Rabbi Sternbuch writes, supporters of the BDA Prenup rely on the Torat Gittin since on his view the pressure created by the spousal support provision does not invalidate the get because the agreement never expressly connects this obligation to the giving of the get.[xxxvii] 

Rabbi Sternbuch, however, thinks that any reliance on the Torat Gittin to support the BDA Prenup is misplaced.  He bases this conclusion in an explanation/qualification of the ruling of the Torat Gittin offered by the Chazon Ish.  According to the Chazon Ish, the ruling of the Torat Gittin does not apply in cases where “every party knows in his heart – without explicitly saying so – that their intent is to coerce him into giving a get.”[xxxviii]  In such cases, since the understood function of the threatened penalty is to pressure the husband into giving a get, and consequently, that fact that two are not formally connected is of little moment.  Such a get is effectively “forced,” and, the Chazon Ish says, therefore invalid.[xxxix]

According to Rabbi Sternbuch, this is precisely what is taking place when the BDA Prenup is used to secure a get.  The husband gives the get in order to avoid liability for the spousal support payments.  While the text of the Prenup assiduously avoids connecting the giving of the get to the release from the spousal support liability, the husband, wife, and beit din all understand that that is exactly what is at play.[xl]  Indeed, that is precisely why the Prenup was drafted and signed prior to the marriage.  According to Rabbi Sternbuch, therefore, the BDA Prenup represents just the sort of case in which the Chazon Ish held that the ruling of the Torat Gittin does not apply, and is therefore invalid.[xli] 

4.      The BDA Prenup’s Spousal Support Obligation is Unreasonably High


In addition to Rabbi Sternbuch’s arguments that the BDA Prenup does not satisfactorily alleviate the problem of a coerced get, he further asserts that the Prenup’s liquidated spousal support amount is far too high, and is therefore self-defeating.[xlii]  He observes that the liquidated spousal support payments provided for in the Prenup obligate the husband to pay the wife one-hundred-and-fifty-dollars per day from the time that the couple permanently separates until such time as the marriage is dissolved by his giving her a get.  Rabbi Sternbuch notes that “a reasonable person does not have the means to pay such a sum.”[xliii]  According to Jewish law, he writes, “when a person does not have the means to pay a debt, he is absolved from paying it, and it is prohibited to imprison him for this or to apply other means of coercing [payment].”[xliv] 

The halakhic principle to which Rabbi Sternbuch refers is indeed well established in Jewish law.  The Torah provides for a variety of protections for debtors against their creditors, including prohibitions against a lender’s entering a borrower’s home to seize personal property as security against repayment of a loan, and against a creditor’s holding the debtor’s clothing previously given as security for repayment of the debt if the borrower needs the clothing.[xlv]  Moreover, the Torah only provides for the involuntary indentured servitude of a debtor in the case of a thief who is unable to repay the value of the property he stole; no such provisions for coercion or punitive measures against debtors unable to repay their loans are contemplated.[xlvi]  The Talmud reinforced these rules,[xlvii] and while it does recognize that repaying a debt is a mitzvah, and that a beit din may whip a debtor who is capable of repaying a loan but refuses to do so,[xlviii] it does not provide for such measures in cases where the debtor has no ability to pay.[xlix]  Indeed, post-Talmudic authorities have ruled that it is a violation of Jewish law to impose coercive measures against debtors who simply do not have the means to repay their debts.[l]

Based on this, Rabbi Sternbuch argues that when a wife, relying on the BDA Prenup, seeks to compel her husband to pay the required unreasonably high spousal support amount – an amount that he surely cannot afford – in order to put pressure on him to give the get, “this involves coercing him to give her money that he is not obligated to pay in order to get him to divorce her.”[li]  When a get is given under such circumstances, Rabbi Sternbuch writes, “it is a get that was given because they coerced him financially without legal basis, which according to all opinions is an invalid coerced get.”[lii]  Rabbi Sternbuch reinforces this conclusion by citing the rulings of R. Avraham Yeshayahu Karelitz, R. Yomtov Lippman Heller, and R. Yechiel Michel Epstein.[liii]  According to Rabbi Sternbuch, these decisors held that “even if financial coercion is not used to directly compel the giving of a get, but they merely force him to pay money that he is not legally obligated to pay, and the husband himself decides for himself that he will divorce her in order to save himself from this coercion – this is a coerced get.”[liv] 

According to Rabbi Sternbuch, this is precisely what takes place when the spousal support provision of the BDA Prenup is used to convince a husband to give a get.  Since the one-hundred-and-fifty-dollar daily support amount is exorbitantly high and beyond the means of any normal husband, the husband is not legally obligated to pay this debt and cannot legally be compelled to do so.  Consequently, a beit din’s use of this spousal support obligation to indirectly pressure the husband to give the get in order to avoid having to pay amounts to illegal financial coercion, and any get given under the cloud of such pressure will be considered coerced and invalid.[lv]
 

5.      Prenuptial Agreements Will Result in More Divorces


Rabbi Sternbuch concludes his teshuva by noting that even without his aforementioned halakhic concerns, adopting the BDA Prenup is a “breach in the House of Israel” that increases the rate of divorce among Jews.[lvi]  In marriages not governed by the Prenup, Rabbi Sternbuch argues, it is often the case that when a husband refuses to give a get, the wife ultimately agrees to reconcile with him in order to avoid being left an agunah.[lvii]  However, as a result of the Prenup, wives are able to force their husbands to divorce them, and this “is likely to undermine Jewish marriage” entirely.[lviii]

Rabbi Sternbuch acknowledges that in fact the Prenup provides that a husband will only be liable to pay the required spousal support – and thus will only be subject to pressure to give a get – in cases where the beit din concludes that reconciliation between the couple is not possible.  However, he nevertheless maintains that the Prenup will cause “a multiplicity of unjust divorces, likely even in cases where reconciliation is appropriate” because “the wife and her family work to force the beit din to not advise the couple to [reconcile] so as to force the husband to divorce her.”[lix]

He concludes that while the BDA Prenup is only helpful for the very small minority of women whose husbands genuinely chain them to their marriages unlawfully, but at the same time it will also ruin the institution of Jewish marriage.[lx]

III.Analysis


1.      The BDA Prenup is a Spousal Support Agreement, not a Self-Imposed Penalty


At the core of Rabbi Sternbuch’s criticisms of the BDA Prenup lies a fundamental misunderstanding of the halakhic underpinnings of the document, and the mechanism it seeks to use in order to ensure that Jewish divorcesare given in a timely manner once a marriage has irreconcilably broken down.  Rabbi Sternbuch appears to believe that the BDA Prenup is grounded in the view of the Rema, who rules that a get given under the color of a self-imposed penalty is valid, at least after the fact. 

Most of Rabbi Sternbuch’s challenges to the BDA Prenup proceed from the assumption that the Prenup is in fact based on the Rema’s ruling, and that it works utilizing the mechanism of kanas atzmo ­– a self-imposed penalty – in order to bring pressure on a husband to give a get.  He first contends that one cannot construct a Prenup relying on the Rema’s view in light of the fact that several important later authorities disagreed with the Rema’s ruling and instead held that a get given under the pressure of a self-imposed fine are invalid even after the fact.[lxi]  Next, Rabbi Sternbuch argues that the Prenup’s spousal support mechanism is not actually binding because, based on the view of the Maharashdam, prior consent to an uncertain future penalty is not binding.[lxii]  Rabbi Sternbuch further contends that the Prenup’s spousal support provision functions as an implicitly  coercive penalty that essentially directly pressures a husband to give a get, which invalidates the get even where the penalty was previously accepted by the husband.[lxiii]  Moreover, Rabbi Sternbuch argues that the Prenup’s support provision of $150 per day is not binding because it is so unreasonably high that no husband to afford to pay it.[lxiv]  This contention supports Rabbi Sternbuch’s view that the BDA Prenup’s spousal support provision is a kenas penalty, since in his mind it bears no reasonable relationship to the actual financial means of ordinary husbands to provide for their wives’ normal cost of living. 

In fact, however, the BDA Prenup does not rely on the view of the Rema that a get given under the cloud of a self-imposed fine is valid after the fact.  Instead, the Prenup builds on a mechanism developed by R. Samuel ben David Moses Halevi in his Nachalat Shiva.[lxv]  According to the Nachalat Shiva, a husband may legally bind himself to support his wife at the customary and reasonable rate common in the couple’s community.  Most importantly, because this kind of commitment merely memorializes the husband’s preexisting Jewish law obligation to support his wife, it is not regarded as a “penalty” or “fine,” and does not fall within the scope of the Rema’s ruling regarding the validity of a get given under the cloud of a self-imposed “kenas.”  Consequently, if a wife were to secure her husband’s willingness to give a get by offering to forgive her rights to these support payments, the get would not be regarded has having been given under the coercive pressure of a penalty, but would instead be the result of a freely made bargain between husband and wife over the enforcement of the latter’s legal right to the promised spousal support.[lxvi]   

Since the BDA Prenup is structured as a spousal support agreement for the time and place in which it is used, it is not subject to the concerns raised by Rabbi Sternbuch, which apply only to self-imposed penalties for get refusal and not to spousal support agreements.  It is important to point out, moreover, that while Rabbi Sternbuch is correct in noting that several important halakhic authorities have questioned and qualified the applicability of the Rema’s ruling regarding the post hoc validity of a get given under pressure of a self-imposed penalty, no authorities have noted their disagreement with the basic position of the Nachalat Shiva that the existence of a spousal support obligation cannot be regarded as coercive and does not jeopardize the halakhic acceptability of a get.

Rabbi Sternbuch, of course, argues that the Prenup cannot be read as a spousal support agreement, and must be understood as a kenas penalty because, in his view, the Prenup’s provision for payments by the husband to the wife in the amount of $150 per day in an unreasonable amount of spousal support.[lxvii]  We note, however, that Rabbi Sterbuch’s assessment of the BDA Prenup’s spousal support provision appears grounded in factually incorrect assumptions about typical incomes and costs of living for the Jews living in Orthodox communities in the United States, who the BDA Prenup is intended to serve.  His analysis may accurately reflect his own reality in Har Nof, Jerusalem, and of the economic realities of the Israeli hareidi community in general, which is in general quite poor.  According to a 2010 report by Haaretz, more than half of the Israeli haredi population lives in poverty, and the average gross monthly income of haredi families is only NIS 6,100, or approximately $1,500.[lxviii]  Under such conditions, it is easy to understand why Rabbi Sternbuch would characterize the BDA Prenups spousal support formula of $150 per day as an amount that no ordinary person could manage to pay.

But the BDA Prenup was not written for or expected to be used by Israeli hareidim, and in fact the economic situation of Orthodox Jews in the United States is dramatically different from that of their hareidi brethren in Israel.  Even a very cursory review of average incomes, home prices, and standards of living in regards to food, clothing, shelter, recreational activities, education, transportation, and the like in areas of the United States inhabited by Modern Orthodox Jews who typically utilize the BDA Prenup shows that the $150 per day spousal support provision is reasonable in light of the typical means of American Orthodox Jewish husbands and the needs of American Orthodox Jewish wives. 

Consider, for instance that the average household income in Manhattan’s Upper West Side, Riverdale, Teaneck, Woodmere, and Scarsdale – all areas with strong concentrations of Orthodox Jews – ranks in the 99th, 86th, 69th, 94th, and 98th percentile, respectively, when compared to national averages in the United States.  Average home prices in these neighborhoods hover around $700,000.[lxix]  Moreover, Jews in these communities almost exclusively send their children to private Orthodox Jewish elementary and high schools, typically paying anywhere from $10,000 to $25,000 per child per year.[lxx]  Most of these families own at least one, if not two or more cars; many take regular expensive vacations to foreign destinations; pay upwards of $5,000 per person to attend holiday programs in exclusive hotels; consume expensive specialty food products and eat out at restaurants; and wear above average clothing.[lxxi]   The standards and costs of living in many of America’s Modern Orthodox communities is very high.  As Dimitry Shapiro has noted, “it’s very much the case that if you are in the Modern Orthodox community and you’re making $200,000 or even $300,000 a year, you’re struggling.”[lxxii]

Given the reality of Modern Orthodox incomes and lifestyles in the United States, it is not unreasonable to demand that the average husband making a six-figure salary make spousal support payments of $150 per day, or just under $55,000 per year.  The American Modern Orthodox community is wealthy even by wealthy American standards while the Israeli hareidi community is poor even by Israeli standards.  This understandably contributes to Rabbi Sternbuch’s sense that $150 a day is an outrageous sum of money that no husband can reasonably be expected to pay.  An examination of the data, however, shows quite clearly that this is simply not true in the United States, where Orthodox Jewish men earning high salaries certainly can be expected to afford to make such payments in fulfilment of their halakhic obligations to support their wives. 

The reasonableness of the BDA Prenup’s spousal support provision in its American Orthodox context is further supported by cost of living realities in the kinds of communities that the Prenup is designed to serve.  Table 2 reproduces a sample cost of living chart prepared by Professor Leon Metzger.[lxxiii]  The chart aggregates daily cost of living data for thirty-eight different zip codes across the United States with heavy concentrations of Orthodox Jews.  The graph clearly shows that in these neighborhoods, the average daily cost of living for an individual female – including housing, food, clothing, transportation, health insurance, and other basic needs hovers around $150, the daily spousal support amount prescribed by the BDA Prenup.[lxxiv] 

Given the actual economies of Orthodox Jewish life in the United States, it is in fact quite reasonable to set an American Orthodox Jewish husband’s halakhic obligation of spousal support at $150 per day.  Moreover, it is critical to understand that in light of the reasonableness of this amount given economic realities, the BDA Prenup’s spousal support provision is not, as Rabbi Sternbuch incorrectly surmises, a form of kenas, or penalty – self-imposed or otherwise.  It is instead a formal memorialization of a Jewish husband’s mezonot obligation, his legal duty to provide his wife with a reasonable standard of living.[lxxv] 

The suitability and halakhic viability of the BDA Prenup in the American Jewish context – and its admitted unsuitability to the very different economic realities of Israeli Jews – is reinforced by the fact that the Beth Din of America has actually drawn up a separate prenuptial agreement to be used by Israeli couples.[lxxvi]  This agreement is virtually identical to the standard BDA Prenup used in the United States, but with one critical emendation.  In the place of the BDA Prenup’s provision for $150 per day in spousal support, the Israeli version states

I hereby now (me’achshav), obligate myself to support my Wife-to-be from the date that our domestic residence together shall cease for whatever reasons, at the rate of $75 per day or the shekel equivalent . . . in lieu of my Jewish law obligation of support so long as the two of us remain married according to Jewish law . . .[lxxvii]

The Israeli version of the Prenup thus directly recognizes the central component of Rabbi Sternbuch’s critique.  It knows quite well that the $150 per day spousal support payment prescribed by the standard Prenup is an unreasonably high amount as applied to Israeli Jews.  For this reason, the standard version that is the subject of Rabbi Sternbuch’s criticism is not supposed to be used by Israelis; the alternative Israeli version of the Prenup, with its more reasonable $75 spousal support provision is intended to be used instead.

The BDA Prenup, in other words, is a spousal support agreement, not a self-imposed penalty; for that reason, the Prenup is not reliant on the Rema’s ruling regarding the validity of a get given under the cloud of pressure created by a self-imposed kenas, and is therefore not susceptible to Rabbi Sternbuch’s criticisms stemming from that premise.  Indeed, it was precisely in order to avoid entanglement with the issues surrounding the Rema’s ruling that the original prenuptial agreement developed by the Rabbinical Council of America in the early 1980s was abandoned in favor of the BDA Prenup currently under discussion.  The earlier document included a liquidated damages clause that did constitute exactly the kind of self-imposed penalty to which Rabbi Sternbuch’s criticism would apply.[lxxviii]  The current BDA Prenup, however, abandoned the liquidated damages penalty mechanism, and instead opted to utilize the approach of the Nachalat Shiva, structuring the document as a spousal support agreement that avoids these concerns. 

It is worth noting that this response to Rabbi Sternbuch’s criticism of the Prenup’s spousal support provision does raise one important question regarding the prenup that is worth considering.  Specifically, it highlights the fact that due to the Prenup’s prescribing a uniform $150 per day for spousal support, the halakhic and practical feasibility of the BDA Prenup may well be limited to communities – like those American Orthodox communities previously discussed – where this amount is a reasonable measure of wives’ cost of living and husbands’ ability to pay.   Rabbi Sternbuch is likely correct that using the BDA Prenup with its $150 per day spousal support provision in a place were typical incomes could never sustain such liability and where people regularly live quite reasonably on much less money would result in the Prenup being considered a self-imposed fine, and therefore subject to the halakhic vagaries associated with the previously discussed ruling of the Rema.  This means that BDA Prenup does not provide a universal solution to the contemporary agunah problem.  It can be reliably utilized only in times and places in which the $150 per day financial obligation it places on the husband can be regarded as a reasonable amount of for spousal support rather than a fine.

One potential way to expand the usability of the BDA Prenup might be to construct a new document in which the spousal support provision was not set at a fixed number, but was instead indexed to some official government averages for income and cost of living in the time and place in which the couple was domiciled prior to the dissolution of their marriage.  While such a provision could be drafted with the right economic and legal expertise, this does not change the basic fact that the BDA Prenup as currently formulated works both halakhicly and legally to ensure that husbands give their wives Jewish divorcesin a timely manner.  It is perhaps true that a more universal version of the Prenup indexed to local income and cost of living levels might satisfy Rabbi Sternbuch and induce him to recognize that the Prenup is a spousal support agreement rather than a self-imposed fine.  Nevertheless, the current formulation works well for the communities for which it was designed, and perhaps if it ain’t broke, we’d be better off not trying to “fix it.”

2.      The BDA Prenup Does Not Directly Coerce the Giving of a Get


In light of the fact that the BDA Prenup operates as a memorialization and enforcement mechanism for the husband’s prior and independent mezonot obligation to support his wife rather than as a self-imposed penalty, Rabbi Sternbuch’s claim that the Prenup is invalid because it directly coerces the giving of a get is likewise misplaced. 

It is a well-established halakhic principle that a get given under financial pressure is valid so long as the financial pressure on the husband is not a direct quid pro quo for the giving of the get, but is instead an independently valid legal obligation incumbent on the husband that the wife offers to relieve in exchange for the giving of the get.[lxxix]  This principle is found in a number of medieval rabbinic responsa.  For instance, in one case, a husband had been imprisoned by gentile authorities for offenses unrelated to his refusal to grant his wife a get.  The local Jewish community refused to intervene with the authorities on the husband’s behalf until he gave a get to his wife, and on these terms, the husband consented to the divorce.  R. Joseph Colon ruled that such a get was not invalid, since the community had not coerced him to give but, but had instead merely refused to render assistance unless he did so.[lxxx]  In another case decided by R. Isaac ben Sheshet, a recalcitrant husband who had been imprisoned for failure to pay his debts agreed to give his wife a get after her family offered to pay his debts in exchange for the divorce.  There too, the get was found to be valid because the husband had been imprisoned on account of unrelated debts, not because he had refused to divorce his wife, and therefore the granting of the divorce was formally his own free-willed – albeit highly prudent – decision.[lxxxi] 

As in these cases, the BDA Prenup merely spells out and makes legally enforceable the husband’s prior halakhic obligation of spousal support.  Releasing him from this potentially onerous financial liability if a get is given, or directing that the amount be paid if it is not, is therefore not direct coercion to compel the giving of a get.   

3.      The BDA Prenup is Good Policy, and Does Not Undermine the Institution of Jewish Marriage


Rabbi Sternbuch’s criticism that the BDA Prenup helps encourage divorce by placing husbands and wives in unequal bargaining positions in the event of marital discord, and therefore undermines the foundations of the institution of Jewish marriage fails for at least three important reasons.[lxxxii] 

First, Rabbi Sternbuch seems to assume that from the perspective of Jewish law and thought, the financial and marital relations between husbands and wives should be structured in a certain way, and he is therefore critical of the terms of the BDA Prenup which in his mind alter this ideal state.  The premise is incorrect.  The terms of marriage in the Jewish tradition are primarily contractual.[lxxxiii]  While some non-financial aspects of marital relationships are dictated by Jewish law,[lxxxiv] there is no ideal model in halakha for the correct disposition of financial rights and responsibilities within a marriage. Jewish law does embrace the default terms found in the standard ketubah, but Jewish law also permits couples to agree to change these standard marital terms as they see fit, as has been the practice in many communities – and is still the practice in some communities today.  The terms of the BDA Prenup, which Rabbi Sternbuch criticizes for undermining the proper allocation of rights and duties in a Jewish marriage, are just such a change.  It may not be written into the ketubah itself, since in Ashkenazi communities the ketubah has taken on a formal, ritual character and its terms are not altered, but the Prenup is simply the kind of agreed-upon structing of the marital relationship between husband and wife that has been a mainstay of Jewish marriage for centuries.  Simply put, there is no essential or ideal form of Jewish marital relationships; whatever agreements a couple signs with respect to financial matters is per se proper and binding. 

Secondly, while Rabbi Sternbuch may be correct that the BDA Prenup does not on its face put husbands and wives in the same financial position in case of divorce, it does so only in cases where a husband is already committing the injustice of withholding a get despite the functional dissolution of the couple’s marriage.  Two of the greatest Jewish law authorities of 20th century America affirmed the essential idea that justice demands that a husband give his wife a get following the effective end of their marriage.  R. Yosef Eliyahu Henkin ruled that

If a husband and wife separate, and he no longer desires to remain married to he and she desires to be divorced from him, then in such cases it is a mitzvah to divorce, and Jewish law commands him to do so. . . .  One who withholds a get because he desires money without any rightful entitlement is a thief; he is worse than a thief, since his conduct violates a substantive prohibition (abizrayhu) related to the taking of human life.[lxxxv]

Likewise, R. Moshe Feinstein affirmed that:

In the matter of a man and a woman who for these past years have not had peace in their home, since the beit din sees that it is impossible to make peace and rectify between them . . . it is compelling that they should be divorced, and it is prohibited for either side to withhold a get– not the man to chain the woman to the marriage, or the woman to chain the man to the marriage, and certainly not over financial matters.[lxxxvi]

The upshot of the positions expressed by both R. Henkin and R. Feinstein is that once a marriage has fallen apart and reconciliation is no longer reasonably possible, divorce is appropriate and indeed obligatory.  In such circumstances, justice demands that a get be given, and any refusal to do so on the part of the husband is unethical, unrighteous, and unjust.  While Rabbi Sternbuch takes issue with the perceived unfair imbalance of power between husband and wife in divorce proceedings created by the Prenup, this problem only arises because of the husband’s refusal to give a get, which tempers sympathy towards the husband’s claim of power imbalance – particularly if he voluntarily agreed to such imbalance as a way to induce this woman to marry him.

Finally, the most important response to Rabbi Sternbuch’s policy objections to the BDA Prenup focuses once again on the major differences between Jewish life in Israel, where Rabbi Sternbuch lives, and in the United States, where the Prenup was drafted and intended to be used.  Put simply, unlike in Israel, where battei din function as part of the state’s legal system and enjoy the support of Israeli law enforcement institutions, rabbinical courts in the United States and other places in the diaspora have no official jurisdiction or power.[lxxxvii]  Israeli battei din have exclusive coercive jurisdiction in matters of divorce; rabbinical courts oversee and control the divorce process, and no divorce can be granted without the approval of rabbinic authorities.[lxxxviii]  More importantly, rabbinical courts in Israel have the legal power to hold husbands who refuse an order to give a get in contempt of court.[lxxxix]  In the United States, however, there is no way to force any unwilling spouse to appear before a beit din, and there is no way for rabbinic courts to administer a get without the agreement of both husband and wife.  In practice, this permits all manner of misconduct by parties going through divorce proceedings, and presents opportunities for husbands (and to a lesser extent, wives) to use their refusal to give (or accept) a get in order to obtain more favorable financial settlements in the divorce.

This uniquely disasporic situation explains why prenuptial agreements like the BDA Prenup are rigorously endorsed by numerous halakhic authorities for use in the United States, but not for use in Israel.  It is important to make sure that Jewish divorces are given and administered.  In the United States this entails reliance on prenuptial agreements, which have proven to be the most effective and halakhicly principled way to address the agunah problem.  Rabbi Sternbuch may not be entirely wrong in his policy critique of the Prenup insofar as his claims relate to conditions in Israel.  But the situation among American Modern Orthodox Jews – who already experience a divorce rate that is likely much higher than in Rabbi Sternbuch’s own community – is very different.  In that community, policy favoring divorce when divorce is indicated by the functional end of a marriage demands that the means of affecting a halakhicly valid and efficient divorce are made available and utilized.  The BDA Prenup provides just this sort of means.[xc]

There is, in this regard, some resonance of the Talmudic[xci] observation הא לן והא להו (“this is for your community and this is for their community”): the BDA Prenup is designed for a certain diasporic community with three characteristics: (1) The secular community has already endorsed the norms of easy “no fault divorce,” (2) the rabbinical courts have no mandatory jurisdiction and (3) the community is fairly wealthy.[xcii]  Eliminate these three and the agreement is no longer applicable.

IV.Conclusion


Halakha, like any other system of law that seeks to be both principled and pragmatically functional in the real world, is fact-driven.  Legal rules and principles are only one part of the jurisprudential equation that produces a particular judgment; in additional to legal norms, one has to consider the facts of each case in order to correctly determine what the law requires and entails.  The same set of legal rules, if applied to substantially different factual scenarios, will therefore produce different but nevertheless equally correct results.  This appears to be the case in the matter of Rabbi Moshe Sternbuch’s criticisms of the BDA Prenup.

When it was adopted, the BDA Prenup won the approval of many leading halakhic authorities, including the late great Jewish law authorities R. Yitzchok Liebes and R. Ovadiah Yosef, and it continues to enjoy the support of many of today’s major rabbinic authorities, including R. Zalman Nechemia Goldberg, R. Gedalia Dov Schwartz, R. Osher Weiss, R. Chaim Zimbalist, and many of the RosheiYeshiva of the Rabbi Isaac Elchanan Theological Seminary at Yeshiva University.  These numerous and highly regarded scholars of the past and present generation have not approved of the Prenup because they disagree with the analysis of the issue presented by Rabbi Sternbuch; and he did not level his challenges to the Prenup because he disagrees with their halakhic position. 

Supporters of the Prenup agree with Rabbi Sternbuch’s fundamental point that we should not administer a get under the cloud of pressure created by a self-imposed kenas penalty previously agreed to by the husband.  Likewise, it is clear from Rabbi Sternbuch’s teshuva that he too agrees with the basic position of the Nachalat Shiva that a spousal support agreement concretizing a husband’s halakhic obligation to support his wife and providing for reasonable levels of support payments in case the couple separates without a get having been given does not invalidate a get given in order to avoid making such payments.  Instead, Rabbi Sternbuch’s teshuva merely argues that in his own time and place – Har Nof in the year 2015 – the $150 per day payments prescribed by the Prenup are too large to be considered anything other than a penalty.  What Rabbi Sternbuch’s teshuva fails to recognize, however, is that given the economics of Modern Orthodox life in the United States, the Prenup’s $150 per day spousal support provision is quite reasonable and should be viewed as a form of spousal support rather than as a penalty.

V. A Brief Personal Postscript: Some Concluding Speculative Political Thoughts about the BDA Prenup

I am a very comfortable supporter of the BDA Prenup (So much so that for many years I was the emergency contact number on the actual form itself in case people filling it out needed help).  The BDA Prenup is the only real and effective solution to the agunah problem.  It works in almost all cases, and it solves actually almost all problems in the United States.  Everyone and anyone who cares if they are given a get when their marriage end in divorce ought to use it.  The alternatives to it are either less effective, less accepted or untested and unproven.[xciii]  Challenges to the BDA agreement need to be responded to and the practices of our community in this regard defended.  I hope this paper has effectively done so with regard to one challenge.

However, all is not rosy in this regard.  The BDA Prenuptial Agreement is, I suspect, being challenged on three fronts simultaneously, albeit by three different groups that have three totally different agendas and goals (and are certainly not coordinating their efforts).  Responding to all three of these challenges and their impact is the challenge of those who believe in the value of the prenuptial solution to the agunah problem.

The first group (and the focus of this article) is made up of a small number of halachic authorities who question the validity of the BDA Prenup as a matter of halacha, and that is the focus of this paper.  This school of thought – almost exclusively based in Israel – is a collection of halachic authorities who suspect that the payment process is problematic in the PNA, or are uncomfortable with any PNA attempt to oust the rabbinical courts from their mandatory jurisdiction or feel that the PNA otherwise undermine the sanctity of marriage.  This group issues statements in the name of halacha as they understand it to the effect that Jewish divorces issued under the shadow of the BDA Prenup might not be valid.[xciv]  They will continue to do so. but as this article shows, this analysis is not persuasive as a matter of technical halacha, and the jurisdictional issues are ultimately not relevant in America since absent a PNA, only secular court has jurisdiction.  This challenge can be well addressed.

The second group are members of the Orthodox community members who are unsatisfied with the solution to the agunah problem advanced by the BDA Prenup: indirect financial pressure to give a get which is enforced by secular law.  This group wishes for an autonomous, internal solution to the agunah situation without reference to civil law and which is self-effectuating and not contractual.   
The BDA Prenup is none of these, and at most their support of the BDA Prenup will thus be weak and frequently it is even less than that.[xcv]  In this groups view, the existence of the agunah problem is a philosophical blight on the halachic system.  As one commentator in this community noted “Why in the 21st century must we turn to the civil authorities to solve the problems associated with our Jewish laws? It is time for the international religious leadership to come up with a universal fair solution.[xcvi]” The BDA Prenup is not this solution and never will be.[xcvii]

The third group is secular and hardly has the agunah problem on its radar screen, although its work can make the current BDA Prenup impossible to enforce.  An important collection of serious legal and political minds are seeking to limit religious arbitration, particularly in the area of family law.  Some of them are motivated by a sense that religious arbitration abuses women, some by a desire to restrict inroad by Sharia law, some by a general secular law arbitration theory and some by yet other ideas and ideals.[xcviii]  Whatever motivates this group – and it is a diverse collection[xcix]– secular law limitations on all prenuptial agreements could be looming in many states in ways that would vastly diminish the value of the BDA Prenup.  (This is why there is already special BDA prenuptial agreements for California[c] and Canada.[ci])  

Attempts to restrict religious arbitration abound and many other proposals in many states might well be next.  There is a distinct fear that the general access to religious arbitration on family law matters will be restricted in the US, as it already is in parts of Canada.  This could pose a very serious challenge to the BDA Prenup and should provide impetus to making sure that the BDA Prenup is regularly examined and updated to make it consistent with the state of the art American arbitration law as well as halacha.

The current article focus on the technical halachic issues are important, but, they pose the least important challenge to the future of the BDA Prenup.  Changes to the civil law of the United States with regard to arbitration law pose a much more serious challenge as such changes to the law could make even currently valid BDA Prenup invalid at some future point, as changes in the law in Ontario did for all such previously valid prenuptials with arbitration agreements in that province of Canada.  The solution to that challenge is beyond the scope of this article, but this challenge also is manageable with reasonable foresight and proper planning.



Footnotes


[i]See, e.g., Rabbi Shlomo Weissmann, Ending the Agunah Problem as We Know It (August 23, 2012), https://www.ou.org/life/relationships/ending-agunah-problem-as-we-know-it-shlomo-wiessmann/; Halakhic Prenuptial Agreements: Agunah Prevention, The Jewish Orthodox Feminist Alliance, https://www.jofa.org/Advocacy/Halakhic_Prenuptial_Agreements_Agunah_Prevention; Shlomo Brody, Can Prenuptial Agreements Prevent “Agunot”?, The Jerusalem Post (November 15, 2012), http://www.jpost.com/Jewish-World/Judaism/Can-prenuptial-agreements-prevent-agunot; Beverly Siegel, Sign on the Dotted Line, Tablet Magazine (March 6, 2015), http://www.tabletmag.com/jewish-life-and-religion/189149/sign-on-the-dotted-line; Mark Oppenheimer, Where Divorce Can Be Denied, Orthodox Jews Look to Prenuptial Contracts, The New York Times (March 16, 2012), http://www.nytimes.com/2012/03/17/us/orthodox-jews-look-to-prenuptial-contracts-to-address-divorce-refusals.html
[ii] For examples of some prenuptial agreements designed to address the agunah problem, see https://www.jofa.org/Advocacy/Halakhic_Prenuptial_Agreements_Agunah_Prevention;
[iii] The text of this agreement can be found at http://theprenup.org/pdf/Prenup_Standard.pdf.  A list of rabbinic endorsements supporting the viability of this document under Jewish law can be found at http://theprenup.org/rabbinic.html
[v]See Michael J. Broyde, Marriage, Divorce and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America 163 n.24 (2001); Irving Breitowitz, The Plight of the Agunah: A Study in Halacha, Contract, and the First Amendment, 51 Maryland L. Rev. 312, 327 (1992).
[vi] The legal enforceability of the BDA Prenup was upheld by a Connecticut court in Light v. Light, 2012 WL 6743605 (Conn. Super.).
[vii]See Maimonides, Mishnah Torah, Hilchot Ishut 11:2.
[viii]See Mishnah, Yevamot 14:1; Maimonides, Mishnah Torah, Hilchot Gerushin 1:1-2.
[ix]See Michael J. Broyde, Marriage, Divorce and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America 69 (2001); Chaim Malinowitz, The New York State Get Bill and its Halachic Ramifications 27 J. of Halacha & Contemp. Society 5 (????); Michael J. Broyde, The 1992 New York State Get Law, 29 Tradition 5 (Summer 1995).
[x]See Babylonian Talmud, Gittin 88b; Shulkhan Arukh: Even Haezer 134:7.
[xi]See id.  See also Tzvi Gartner, Problems of a Forced Get,9 J. of Halacha & Contemp. Society 118 (1985).
[xii]See Irving Breitowitz, The Plight of the Agunah: A Study in Halacha, Contract, and the First Amendment, 51 Marland L. Rev. 312, 332-35 (1992).
[xiii]See Shulkhan Arukh: Even Haezer 134:4.
[xiv] For a discussion of this mechanism and its historical usage, see 1 J. David Bleich, Contemporary Halakhic Problems 155-159 (1977).
[xv]See https://www.getora.org/faqs-about-the-prenup.
[xvi]See Light v. Light, 2012 WL 6743605 (Conn. Super.).
[xvii]See R. Moshe Sternbuch, Condemnation of the BDA Prenup (hereinafter Sternbuch Teshuva), available at https://www.scribd.com/doc/273292099/Rav-Moshe-Sternbuch-condemns-prenuptial-agreements?secret_password=tfA9agf8H8M7dDE9Hk4N.
[xviii] Sternbuch Teshuva at 2.
[xix] Shulkhan Arukh: Even HaEzer 134:4.
[xx] Rema to Shulkhan Arukh: Even HaEzer 134:4.
[xxi]See id. (“And it is proper to be concerned for this view in the first place and absolve him of the penalty.  But if he already divorced her because of this – and even if he divorced her due to the force of an oath he previously took to divorce her – the get is valid since originally no one coerced him.”).
[xxii]See Sternbuch Teshuva at 2.
[xxiii]See Responsa Mishkenot Yaakov, no. 38.
[xxiv]See Arukh Hashulkhan: Even Haezer 134:28-29.
[xxv]See also Pitchei Teshuva: Even Haezer 134:10; Sternbuch Teshuva at 2.
[xxvi] Sternbuch Teshuva at 2.
[xxvii]See Sternbuch Teshuva at 2-3.
[xxviii]See Responsa Maharashdam, Even Haezer, no. 63.
[xxix]See id.
[xxx]See Sternbuch Teshuva at 2.
[xxxi] Sternbuch Teshuva at 3.
[xxxii]See Sternbuch Teshuva at 3.
[xxxiii]See Sternbuch Teshuva at 3-4.
[xxxiv]See R. Jacob Lorderbaum, Torat Gittin 134:4.
[xxxv]See Sternbuch Teshuva at 3.
[xxxvi] Sternbuch Teshuva at 3.
[xxxvii]See Sternbuch Teshuva at 3.
[xxxviii]See Sternbuch Teshuva at 3-4.
[xxxix]See Sternbuch Teshuva at 4.
[xl]See Sternbuch Teshuva at 4.
[xli]See Sternbuch Teshuva at 4.
[xlii]See Sternbuch Teshuva at 4.
[xliii] Sternbuch Teshuva at 4.
[xliv] Sternbuch Teshuva at 4.
[xlv]See Mishnah, Bava Metzi’ah 9:13.
[xlvi]See Babylonian Talmud, Kiddushin 14b; Maimonides, Mishnah Torah, Hilchot Avadim 1:1.
[xlvii]See Babylonian Talmud, Bava Metzi’ah 113a-116a.
[xlviii]See Babylonian Talmud, Ketubot 86a.
[xlix]See, e.g., Responsa Rivash, no. 484; R. Joel Sirkis, Bayit Chadash to Arbah Turim: Choshen Mishpat 97:28.
[l]See, e.g., R. Isaac Ben Sheshet, Responsa Rivash, no. 484.
[li] Sternbuch Teshuva at 4.
[lii] Sternbuch Teshuva at 4.
[liii]See Sternbuch Teshuva at 4.
[liv] Sternbuch Teshuva at 4.
[lv]See Sternbuch Teshuva at 4.
[lvi] Sternbuch Teshuva at 4.
[lvii]See Sternbuch Teshuva at 5.
[lviii] Sternbuch Teshuva at 5.
[lix] Sternbuch Teshuva at 5.
[lx]See Sternbuch Teshuva at 5.
[lxi]See supra Part II.1.
[lxii]See supra Part II.2.
[lxiii]See supra Part II.3.
[lxiv]See supra Part II.4.
[lxv] For a discussion of this mechanism and its historical usage, see 1 J. David Bleich, Contemporary Halakhic Problems 155-159 (1977). See also Michael J. Broyde, Marriage, Divorce and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America 13-15 (2001).
[lxvi]See generally Nachalat Shiva 9:14.
[lxvii]See supra Part II.4.
[lxviii]See Zvi Zrahiya, More Than Half of Israel’s Ultra-Orthodox Living in Poverty, Haaretz (Nov. 7, 2010), http://www.haaretz.com/israel-news/business/more-than-half-of-israel-s-ultra-orthodox-living-in-poverty-1.323309.
[lxix] Collecting data from http://newyork.homelocator.com and entering zip codes 10024 (Manhattan’s Upper West Side), 10471 (Riverdale), 07666 (Teaneck, New Jersey), 11598 (Woodemere, New York), and 10583 (Scarsdale) strongly suggests what many in the Jewish community know all too well: Modern Orthodox communities have high housing prices (on average $700,000) and very high incomes (99, 86, 69, 94, and 98th percentile, respectively, relative to the rest of the United States).
[lxx] For an informal, but perhaps the most extensive collection of tuition data for Jewish day schools around the United States, see https://docs.google.com/spreadsheets/d/1jJF9icyyd5jMqY-pm06QbJqqAKXe0b9X-1-DOzbo4yk/edit#gid=0.
[lxxi]See Chaim I. Waxman, Is Modern Orthodoxy Thriving? Don’t Be So Sure (Nov. 13, 2014), http://blogs.timesofisrael.com/modern-orthodoxy-thriving-maybe-not/.
[lxxii] Dimitry Shapiro, For U.S. Orthodox, Upper Class Incomes Often Not Enough (Feb. 5, 2015), http://www.timesofisrael.com/for-us-orthodox-upper-class-incomes-often-not-enough/
[lxxiii]See infra Table 1.
[lxxiv]See id.
[lxxv]See Maimonides, Mishnah Torah, Hilchot Ishut 11:10-11.
[lxxvi] This Israel-specific version of the BDA Prenup is on file with the author.
[lxxviii] For a copy of this earlier prenuptial agreement, see Menachem M. Bayer, The Jewish Woman in Rabbinic Literature, Vol. 2, at 223 (1986). 
[lxxix]See Irving Breitowitz, The Plight of the Agunah: A Study in Halacha, Contract, and the First Amendment, 51 Marland L. Rev. 312, 328 (1992).
[lxxx]See R. Joseph Colon, Responsa Maharik, no. 123.
[lxxxi]See R. Isaac Ben Sheshet, Responsa Rivash, no. 127.
[lxxxii]See supra Part II.5.
[lxxxiii]See Michael J. Broyde, The Covenant-Contract Dialectic in Jewish Marriage and Divorce Law 53, in Covenant Marriage in Comparatie Perspective (John Witte & Eliza Ellison, eds., 2005).
[lxxxiv]See Maimonides, Mishnah Torah, Hilchot Ishut 11:2-5.
[lxxxv] Adut l’Yisrael 143-144, reprinted in Kol Kitvei HaRav Henkin 1:115a-b.
[lxxxvi] Igrot Moshe, Yoreh Deah 4:15
[lxxxvii]See Michael J. Broyde, Marriage, Divorce and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America 43-58 (2001).
[lxxxviii]See The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, S.H. 165 arts. 1-2.
[lxxxix]See Heather Lynn Capell, After the Glass Has Shattered: A Comparative Analysis of Orthodox Jewish Divorce in the United States and Israel, 33 Tex. Int’l L.J. 331, 337 (1998); Erica R. Clinton, Chains of Marriage: Israeli Women's Fight for Freedom, 3. J. Gender Race & Justice 283, 289 (1999).
[xc] Let me add that I have not discussed in this article the various Israeli prenuptial agreements as they are outside of the bailiwick of both Rabbi Sternbuch’s critique and this defense.  It goes without saying, however, that Israeli PNA entitled “The Agreement for Mutual Respect” is as valid as the Beth Din of America agreement is, and can be subject to the same critique about the details of the support numbers.  Assuming that the amounts are reasonably correlative to support levels in Israel, that agreement is halachically identical to the BDA Prenup.
[xci] Bava Metzia 107a and Bava Batra 147a as well as many other places in the Babylonian Talmud.
[xcii] This formulation was first suggested to me by my friend Rabbi Alan Berkowitz in the course of his reading a draft of this paper.
[xciii] This is an important conceptual point.  “Less accepted” solutions are those that produce a divorce process that significant segments of the halachic community would not accept, and this is unwise.  “Less effective” solutions are those that do not work in a significant number of the cases that actually beguile the community and “untested and unproven” are those solutions that might work in theory, but reasonable people are unsure if that actually work in practice or in theory.
[xcvii] I respond to this criticism in my book Marriage, Divorce and the Abandoned Wife in Jewish Law (Ktav, 2001), but the criticism remains accurate in its description.
*Updated to a more readable format

Ruling With their Heart - Not their Head

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Rabbi Shlomo Riskin
Why do they do it? Why do some Orthodox rabbis - good men that have done so much for Judaism go so far off the rails that they are practically thrown out of Orthodoxy? I think it is because they are so kind hearted they simply do not know how to say no. They therefore go to great lengths to justify anti Halachic behavior out of pure compassion. Practically blinded to the clearly forbidden nature of what they permit or excuse. Often these rabbis are otherwise people who have done much for Klal Yisroel. But their Achilles heel is the very compassion that has given them the courage and determination to do great things.

There are two prominent Modern Orthodox rabbis that have done just that with the laws regarding the clearly forbidden act of homosexual relations. And both have used the words of Torah or its sages into permit or excuse it.

Rabbi Asher Loptin in what I am absolutely convinced is a sheer act of compassion has endorsed same sex marriage using the Torah’s admonition in Breishis (2:18) of ‘Lo Tov Hayos HaAdam Levado’ (It is not good for man to live alone). While that has always been interpreted as a Godly command to mankind  that they should marry, Rabbi Lopatin has interpreted to apply to people of the same sex living together. Thus implying that same sex relationships are preferred by God over living alone. Incredible as that may seem, I spoke to him about that and this is what he actually believes. He is not trying to deceive anyone with some sort of exegetical trick. His legitimate compassion for people with same sex attraction has over ridden his common sense and the universal interpretation of those words.

The latest rationaliization comes from another great rabbi, Shlomo Riskin, who has done so much for Klal Yisroel. I believe that he too is guided by a compassion so strong that it overrides unambiguous Halacha. In an interview with a Hebrew language publication he has in effect ‘Kashered’ homosexual relationships among people with same sex attraction. His rationale (...and he is not the first to use it) is the use of the Talmudic principle of Oness Rahcmama Patrei – when someone is forced to sin, a benevolent  God’s absolves them of any guilt. And since gay people are hard wired to be attracted to the same sex, they are considered to be ‘forced by nature’ to violate the prohibition and therefore absolved of any guilt in an act the Torah otherwise prohibits as a capital offense.

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Rabbi Asher Lopatin
I get their compassion. I truly understand where they are coming from. But I must join withothers that have pointed out the error of their ways. You cannot rationalize away sinful behavior by saying you can’t help yourself. Unless you have a break with reality and are delusional, one has to follow Halacha no matter how strong the inclination is to sin.

We all sin because we all have inclinations to do so – each in our own way. Sometimes the desire is so great that it overcomes us. Every individual faces their own specific Halachic challenges in life. Most good people overcome them. But occasionally even good people are overcome by their desires. When we sin we know we have sinned and that is what Teshuva is for. But in no way should we rationalize it or justify it.  Because if we did, we could in theory rationalize all sin away – at least in those cases where no one else is hurt and our desire to sin overcomes us. 

Clearly this is not what Chazal meant when they said Oness Rachmana Patrei. Being forced to sin by one’s own inclination is not he kind of force Chazal was talking about. Any time free will is involved, sinning becomes a choice. No one but your own mental state is forcing you to sin. 

This does not mean that an individual’s psychological makeup is not factored in. It certainly is. If a someone's  emotional makeup is so overwhelming that overcoming sin is near impossible, and then somehow they overcome it, they are considered a Tzadik - the most righteous of individuals.  But that does not make the sin any less sinful nor does in absolve anyone from responsibility if the do succumb.

The Halacha is clear. A man lying with a man as if he were a woman is an abomination punishable by death (under certain conditions that are impossible to meet in our day.)There is no running away from that. There is no rationalizing it.

I am not going to condemn these rabbis because their heart is in the right place. But they are clearly wrong - ruling with their hearts. Not their heads.

That said, I too have compassion for people with same sex attractions whose only viable option to satisfy those sexual urges is sinful behavior. As I’ve said in the past, I don’t know if it is nature or nurture (or both) that makes some people that way. But it seems pretty clear that they are that way permanently. 

I don’t judge them. I don’t look into what people do in their bedrooms. What they do in private is between them and God. I am not God’s accountant. But as a legal matter  there is no question about a behavior that is spelled out in the Torah as specifically as this is. 

I have said many times, the proper Jewish attitude is to hate the sin and not the sinner. But it is certainly not to cleanse the sin as permissible in instances where our God given gift of Bechira - freedom of choice.  Saying that one’s psychological makeup absolves one of sin simply does not make any sense. No matter how strong their psychological inclination is to do so.

A Shocking Press Conference

My worst  fears about the President are proving to be true. He is an incompetent President who is guided by whim and little else.  The latest and perhaps the most egregious manifestation happened yesterday at a press conference that was supposed to be about rebuilding this country’s infrastructure – something has the support of both political parties. Instead he could not help himself and spoke about the violent clash between white supremacist hate groups (which included swastika carrying Neo Nazis and members of the KKK) and counter protesters.

It was an astonishing reversal of his unequivocal condemnation of those hate groups the day before. Yesterday he decided to double down on ‘blaming both sides’. Thereby leaving the impression of moral equivalency between hate groups and those protesting them.

The President was rightly attacked for those comments by a wide variety of people on both sides of the political aisle from all walks of life. There is no moral equivalency between the two sides. Hate groups pure are evil. Counter protesters were on the right side of the issue.

The President added fuel to his fire by saying that there some good people on both sides. That it wasn’t only hate groups protesting but good people. People that simply were protesting the removal an iconic Confederate statue. And not motivated by hate.

I’m sorry. Anyone that stands with Neo Nazis for any reason is not a good person, even if they were there to express a legitimate grievance that had nothing to do with hating anybody. You don’t stand with Nazis for any reason.  If you do, then you are standing with evil. That a President can come anywhere near to saying something like that, let alone saying it outright, is beneath the dignity of his office in unprecedented ways. It besmirches not only his own reputation, but that of its people and this this nation whose principles reject racism and bigotry.

I am still stunned that this man was elected President. And yet he is.

That said, if we examine the truth, I have to agree that there was violence on both sides. And I even suspect that it may have been started by the ‘good guys’ – those who were there to protest the Nazis. They in effect played right into the hands of those neo Nazis who came prepared for violence – hoping it would come so that could bash a few heads in. They got their wish and that is exactly what happened.

I say now as I said then. Had the counter protesters asked me, I would have told them to stay home. But they came. Some of them came for a fight – to physically fight evil with violence. Now I’m sure that is most of them came to protest the neo Nazis peacefully with some very loud voices. But a small segment of them were not going to stand by idly and let these hate groups march. They attacked them. I don’t think that there can be any argument about that. I believe the Charlottesville police department actually confirmed that.

So in effect, Trump is technically right. But saying that in this context where it will be seen as granting these hate groups moral equivalency with the counter protestors is a foolish and stupid thing to do. Because that is clearly the reaction of every observer. Including people like former KKK leader David Duke who was one of the few people that praised the President’ for having the ‘courage’ to tell the ‘truth’! This will no doubt embolden these hate groups to carry on their racist crusade for ‘white America’. Which is what their protest last week was really about. That was evident by their repeated refrain of ‘Jews will not replace us!’ –as they marched carrying torches. Which was reminiscent of images recorded during the Holocaust of Nazi soldiers carrying torches marching in Germany.  


Being right about a particular fact does not justify what Trump did. He seems incapable of seeing the bigger picture.  He does not seem to have the intelligence to make those kinds of judgments.  Or worse he is doing it to retain the ‘hate group’ vote – as some have suggested.  

I happen to think it is the former. Because he has not recanted his unequivocal condemnation of those hate group that he made the day before. He reiterated it when challenged by a reporter yesterday.  He also made clear that the driver that rammed his car into the crowd of counter protesters killing one young woman is a murderer. But that was almost beside the point of his rant which sent the message of moral equivalency. It was equally foolish to criticize people that were there to protest these hate groups, most of whom came there to do that peacefully.

I continue to be disgusted by this am more embarrassed by his presidency than ever. His oversize ego is so huge he actually believes he can do no wrong and that every word out of his mouth is a pearl of wisdom. He thinks that every word he utters should be taken as gospel.  A man that insults his enemies with lies, half truths, and innuendo - never taking the blame for anything that goes wrong. Frankly I don’t know how his children put up with him. Nor can I understand how his chief of staff  John Kelly can continue in that role after this.

And yet, as much as I would like it to be so, I don’t think Trump has committed any high crimes and misdemeanors for which he can be impeached - and then removed from office. I don’t believe that Special Counsel, John Brennan will find what everyone is hoping he will – a smoking gun showing that Trump himself  colluded with the Russians to undermine his opponent during the election.

This man is here to stay for the rest of his 4 year term. Let us pray that he will be defeated in the next election. We will just have to hold our collective noses until then and hope the country will survive. I think it will. We are stringer than one man – even the President.  The polls show his approval ratings at historic lows for any President. If that is any kind of indicator, he will be defeated in a landslide. On the other hand, polls have been shown to not be very unreliable predictors of how people will vote. Hillary Clinton will tell you that. God help us all.

What is Modern Orthodoxy?

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YCT head, Rabbi Asher Lopatin (Image from NJJN)
Open Orthodox no more. So says Rabbi Asher Lopatin in a recent interview in the New Jersey Jewish News. He objects to the use of that term as a description of his school, Yeshiva Chovevei Torah (YCT). This is because of the controversy it has generated. And yet he says  that his liberal philosophy is exactly that of Open Orthodoxy but that term detracts for the mission of the school.  In a personal conversation I had with him a while back he expressed the same sentiment to me. He then said he just wants his Hashkafa to be known as liberal Orthodoxy. But now he seems to prefer being known simply as Modern Orthodox. In any case he has dropped the term Open Orthodox from all of YCT’s literature.

I understand why he feels this way. Open Orthodoxy has been attacked so many times that it is in danger of losing its identity as an Orthodox institution. And for good reason.  It isn’t so much that his mission is problematic.  I even agree in theory with a mission that tries to be as inclusive and ‘open’ as possible.

My only difference with him is in how he pursues his mission.  Specifically that being inclusive does not mean including ideas and innovations that are not compatible with centuries of Jewish tradition. And that have been widely rejected by legitimate Poskim across the entire spectrum of Orthodoxy. There are some things that are just not ‘open’ to us as Orthodox Jews. Much as we’d like them to be.

The truth is that the fact that Rabbi Lopatin has not changed his philosophy but has simply chosen not to be called Open Orthodox any more - preferring the term Modern Orthodox - does not really help him. To paraphrase Shakespeare, a rose by any other name is still a rose.  It isn’t the name that is problematic, it is the philosophy behind it. Or more specifically in this case how it is applied.

What is a bit concerning to me that it is unclear whether he wants to co-opt that term exclusively for his Hashkafa or just want to be in the general category of Modern Orthodoxy. If it is the former then I have a problem with it. Even if I grant that YCT is still in the fold, it is unfair to co-opt that name for his movement to the exclusion of all others. Modern Orthodoxy is a broad definition that encompasses much more that the extreme left that Rabbi Lopatin and his yeshiva represent. It encompasses a right wing as well. Not a Charedi right wing. But a Modern Orthodox right wing. Whose Hashkafa is perhaps better known as Centrism.   A Hashkafa to which I subscribe.

A Centrist is someone that embraces modernity in positive ways as long as it is compatible with Halacha and tradition. To a Centrist there is nothing inherently evil about secular culture and much of it can be used to enhance our lives in variety of ways. We embrace secular studies as either a function of Torah Im Derech Eretz (TIDE) or Torah U’Madda (TuM). This is in contradiction to our Charedi  brothers who see secular knowledge as not much more than a means towards a livelihood at best. They see secular culture as wasteful at best or even inherently evil. To the extent that they participate at all it is for purposes of health or utilitarian benefit.  Secular knowledge it is seen as a means towards a livelihood at best and not valued at all otherwise.

Clearly therefore (at least to my mind) being a Centrist is being Modern Orthodox. Centrists are therefore entitled to be called by a name that described what we are: Modern and Orthodox. Centrists embrace modernity same as the left. What makes us Centrists is that we share many of the values of the right. We are in essence in the center Hashkaficly.

Why is a name important? Names are important because Orthodox Judaism has evolved to the point that there are many groups with different Hashkafos and therefore different identities. Those of us that are of limited background and seek truth can then find out what each Hashkafa  is about and choose which one they believe they are closer to. And it is useful to know that there are modern Hashkafos as well as right wing Hashkafos – each with their own different segments to choose from.

Gone are the days where we were all one people with a single worldview. Times have changed and Orthodox has changed with them. Who is the ultimate possessor of Truth? I think we will have to wait for Moshiach to find that out. In the meantime the best we can do is serve God in ways that we believe He best wants us to. For that is the ultimate purpose of Judaism.

Islamic Terrorism, Charlottesville, Lakewood, and Antifa

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This morning’s news does not come as a shock. Which is itself a shocking statement considering what that news is. Once again. Unfortunately this happens so frequently that it no longer shocks anyone. Islamic terrorists decided to murder innocent victims for God. This time ISIS actually took credit for it. Meaning that it was not just inspired by them but was carried out by them in their Islamic ‘Milchemes Mitzvah’ (better known Jihad) to achieve a world run K’Hahalcha of Islam (Better known as Sharia Law).

I’ve said this ‘a thousand times’. Most Muslims are abhorred by what these Islamic terrorists do. Most of them are fine upstanding peace loving people and sometimes victims of terror themselves. But it cannot be denied that a significant number of them are supportive of it for religious reasons sourced in a fundamentalist understanding of Islam. For them terrorism is a means to an end in their war for God! 

ISIS is not some criminal element. They are a religion based army. They believe that Islam supports doing ‘whatever it takes’ to get the job done. Including taking the lives of not only innocent people, but even giving up their own lives as martyrs for the cause. Which instantly earns them a place in ‘Olam HaBah’. Much the way Judaism see dying Al Kiddush HaShem. 

These Muslims are not people misusing their ‘Torah’ (the Koran). Theirs is a legitimate interpretation of it. An entire Arab nation, Saudia Arabia, subscribes to it. It is called Wahabbism or Salafism. That is a fundamentalist Islamic doctrine that justifies killing Muslims who disagree with their version of Islam. Many experts believe that Wahabbism is what inspires ISIS. It is not a coincidence that the 9/11 terrorists were Saudi Arabians.

As much as most Muslim clerics try to dissociate Islam from these terrorists - constantly rejecting them as a gross distortion of Islam, it is really hard to accept that. Unfortunately many world leaders do buy into that argument. I can’t tell you how many times I have heard – even Republicans like George W. Bush, let alone Democrats like Barack Obama say that these terrorists do not represent Islam. They are a corruption of it. That may be true about most Muslims. But it is certainly not true about all of them. Which is why we continue to have these kinds of attacks. They are inspired by a fundamentalist version of it. Not something they made up or corrupted in ignorance.

It is time to face reality and say that there is something wrong with a religion that can be interpreted by so many of its adherents to the point of killing innocent victims (even members of their own faith) and to blow themselves up in the process – all service of God. And inspiring others to do that all over the world.

I have no solution to the problem. But at the very least we need to realize what the truth is before we can even dream of a way to stop it. We can no longer afford to react after the fact. Nor is it enough to keep increasing safety measures that increasingly burden the public. Especially at airports. While it is important to do that in the interim, it isn’t enough. These attacks will continue. Islamic terrorists will find their way around the increased security measures. They always do. We have to be proactive on an ideological level to recognize that it is an ideology sourced in Islam. And somehow seek to destroy that ideology. Until that’s done the world will be increasingly at risk for death and destruction at their hands.

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Heather Heyer (Info News)
On a completely different subject, I have to applaud what religious leaders of Lakewood just did. I certainly have my issues with Lakewood. Especially in light of some recent arrests there. But I absolutely agree with a statement they just released. Especially in light of the fact that almost 75% of that town voted for Donald Trump. It is worth quoting in its entirety: 
"Heather Heyer, a gentle soul murdered by an intolerant racist in Charlottesville last weekend, died defending our freedoms. Most likely her loved ones would say that she was no hero, simply standing up for the founding values of our great republic – equality before the law, tolerance, justice and the rights of all to live in peace without oppression.
"But she was a hero. She encompassed the heart and soul of all Americans from North and South, East and West, of all skin colors, backgrounds, ethnicities, and religions, indeed of all humanity with a moral compass and a conscience. Her message was timeless, let bigotry have no haven on this earth that we all share together.
"Heather defended the fort – our fort – tragically with her life. She sanctified the moral values instilled by the All-Mighty in our souls and boldly defended the principles embodied in our Constitution.
"Elie Wiesel, the noted humanitarian and the voice of innocent victims once said to a president of the United States: “Mr. President, this is not your place.” Your legacy is not to give fodder to racists and anti-Semites to warp and hate with. Your place needs to be exclusively with the innocent victims of intolerance.
"Groups marching with swastikas and assault rifles, protected by the very Constitution they seek to destroy, are not defenders of freedom – they are not America. Now is the time for us all to rise, as a united republic, and to say to each other, once again, that we are one nation where all are equal, with liberty and justice for all.
"Mr. President, please join the countless good Americans who are honoring Heather's legacy and making that statement.'' 
I could not have said it better myself. But a word of caution. Lost in all of the is the fact that Ms. Heyer’s death could have been avoided had the hate groups (who came prepared for a fight and hoping for one) not been attacked by ‘Antifa’ activists that were there with counter-protesters. There is little doubt that they initiated the fighting. That a hero like Heather Heyer was murdered at the hands of a crazed neo Nazi can be traced right back to that.

True, sometimes you must fight violence with violence. Had those hate groups attacked the counter-protesters first, they would have been right to defend themselves and fight back with everything they had.  But that is not what happened here. As much as those hate groups wanted the outcome they got, had the fighting not been initiated by these ‘Antifa’ activists, Ms. Heyer would probably still be alive today. In that sense these they share some of the blame. You do not throw a lit match into a keg of gun powder. That is what ‘Antifa’ did. They asked for a fight and they got one. And Heather Heyer paid the price. 
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