In order to deal with a timely issue, this month my column is different from the usual content of “Views and Reviews.”
A recent article in New York’s Jewish Week tells the story of an unusual document that an American woman, Phyllis Hofmann Waldmann, found in her deceased mother’s papers. The document, written in German with the word “Halitzah” at the top, was witnessed and signed on the same day as Ms. Waldmann’s parents’ ketubah (wedding contract) by the same two male witnesses in Wurzburg, Germany. What is the significance of this document?
According to the Bible (Deuteronomy 25:4-10), if a married man dies childless, and he has a living brother, the man’s brother is supposed to marry his widowed sister-in-law. This marriage is called yibbum, or levirate marriage. (Levir is the Latin word for brother-in-law.) This law was meant to protect the childless widow. The Bible, recognizing that not all men in this situation would be willing to perform the levir’s duty and marry their sister-in-law, legislated that a man who refuses to do so should go through a ceremony called halitzah with the widow. Classical rabbinic law stipulates that the widow is in a state of limbo until her brother-in-law decides which of his two available options he will exercise – either yibbum or halitzah – and she’s not free to marry another person until she is “freed” by her brother-in-law.
So to avoid the potential problem of leaving a widow in limbo, the Orthodox rabbis of Wurzburg, Germany, had the brothers of apparently any groom sign a document like the one that Ms. Waldmann found. According to the Jewish Week, the document read: “Should halitzah become necessary, we the undersigned obligate ourselves that… immediately and unconditionally and without any reimbursement we will confirm the ordinance of Jewish ritual law and give Mrs. Enny Hofmann, born Hamburger, the halitzah. Our sister-in-law will be entitled to decide together with us the venue and time of such ceremony.”
The Jewish Week reports that three Hofmann brothers signed the contract, as well as two witnesses. It was drawn up by Rabbi Shimon Hanover, the regional rabbi of Wurzburg. Happily, Mr. and Mrs. Hofmann had children and so the halitzah agreement was never needed.
Many of us here in Canada took more than an academic interest in the story of this document, since a sorry saga is unfolding, or perhaps not unfolding here in 2012. A religious Jew passed away and left a childless widow. The brother of the deceased (part of the religious community in a major Canadian city) has refused now for more than a year to perform halitzah for his widowed sister-in-law. Yibbum is out of the question, since the brother himself is already married. He has a financial dispute with the widow and is using the halitzah as leverage to effect a settlement that will be more advantageous to him. Sadly, the widow (also religious) remains “chained” or stranded, unable to remarry.
In many ways, this dispute is an internal Orthodox problem. First of all, if the widow were not strongly committed to Orthodox Judaism, she would just go and remarry without the benefit of Orthodox clergy. But beyond that, the recalcitrant brother-in-law, as an Orthodox Jew, would find it impossible to function were it not for the fact that some Orthodox rabbis (a minority, to be sure) are offering him support. On issues of this nature, we find three types of approaches among contemporary Orthodox rabbis.
Some, such as Rabbi Hanover of Wurzburg in the 1930s, search out proactive solutions to ensure that no woman will find herself stranded in this way. Generally, concerned Orthodox rabbis today do take proactive steps, using pre-nuptial agreements that are meant to prevent the more common problem of the denial of a get (a religious divorce). But the same principle applies to a pre-nup designed to avoid denial of halitzah. A second group of Orthodox rabbis avoid the use of pre-nups, for whatever reason, but are scandalized by the actions of men who extort their estranged wives or their widowed sisters-in-law by denying or delaying a get or a halitzah. A few such Canadian rabbis have spoken up on the current problem. But there is also a small group of Orthodox rabbis who see nothing intrinsically wrong with such actions, because, technically, it’s not against Halachah to deny a get or halitzah or to make them dependent on certain conditions being met.
Most people recognize the inherent unfairness of such behaviour. Still, it’s not easy to point to a specific line in a code of Jewish law that outlaws withholding halitzah for leverage in a financial dispute (just as you can’t find a line that suggests that such pressure is permitted). One might try pointing to the dozens of verses in the Torah and the prophets exhorting us to beware of mistreating a widow. As Rabbi Moses ben Nahman (Ramban) wrote in his Torah commentary, when the Torah commands that we avoid mistreating a widow, this mitzvah applies to every widow, rich or poor, as widows are psychologically downtrodden and are always “close to crying.” While I find such arguments compelling, apparently not all rabbis do.
Yet I think that something effective can be done by our community. Not every decision of an Orthodox rabbi is based solely on what the classical rabbinic texts say. For example, these texts make it perfectly clear that a parent’s obligation to feed, clothe and support a child does not last through the teenage years. In other words, according to the letter of rabbinic law, parents may cut off support to their 14-year-old son and tell him to leave home and go join the workforce. But I am certain that if any Orthodox Jews in Canada were to do that, their rabbis would not support them. And why not? Because community standards demand that parents support their children beyond the age of 14.
So there is something we can do. If our community speaks out and makes it perfectly clear that we do not tolerate applying pressure by withholding get or halitzah, no rabbi will dare support such extortion. Let’s all make that point, as clearly and loudly as we can.