by R. Gidon Rothstein

7 Shevat: Non-Orthodox Marriages

People who don’t spend much of their time studying Torah don’t always stop to remember that halachah is also a legal system, where technicalities count. For an example that arises too often, if a woman is halachically married but then civilly divorced, she is still halachically married, which means that any children from a future marriage would be mamzerim, unable to marry other Jews [that’s a brief summary that leaves out nuances and technicalities of these laws].

Faced with a circumstance like that, halachic authorities try to avoid that outcome when presented with a woman who has a child from a second marriage; the easiest way is to invalidate the first marriage, to find a way to plausibly rule that she was never married. That’s not always easy, as R. Moshe Feinstein shows in Iggerot Moshe Even HaEzer 4;59, dated the seventh of Shevat, 5740 (1980).

The Facts in R. Moshe’s Case

R. Feinstein was responding to an inquiry from his student, R. Nissan Alpert, about a woman who said she had had a husband sixteen years earlier, from whom she had been civilly divorced, and now she has a daughter from her current husband.

She had also said that the first marriage happened in front of only five couples, all of whom could not count as witnesses, either because they were relatives of hers or her first husband’s, or were not sufficiently religiously observant. Were we to believe her, we would have solved much of the problem, because her first marriage was not enacted according to halachah.

Another way to solve the problem (if we can’t believe her) swould be to say we don’t believe her that the marriage occurred, as R. Feinstein does when it comes to a woman’s claim that she had an affair (listen to my ou.org podcast, A Responsum a Day, for 18 Shevat).

That’s not an option in this case, because her claim is easily verified, since marriages are registered with the authorities, as are divorces. That means we also cannot apply the halachic concept, ha-peh she-asar hu ha-peh she-hitir, that if we believe her that she was married we should also believe her about the lack of valid witnesses, especially since most weddings have more than just a few guests.

Reform Rabbis and Assumptions of Nonobservance

There’s more room to argue that we can accept her claim that nobody at that first wedding was observant, since it was conducted by a Reform rabbi, and she and her current husband are not observant. We might not have been able to trust her about that, since self-incriminating testimony is inadmissible in halachah, but she and her husband violate the Torah in public. Her parents, too, are publicly violate Shabbat and don’t observe any of the commandments, which helps our certainty that the first wedding had no observant people in attendance.

The woman claims her parents keep some mitzvot, which might throw some of this into doubt. R. Feinstein says, however, that she is our only source for that claim, and she herself doesn’t keep anything (so we don’t have to trust her), nor did her first husband. Facts about observance, he adds, are easily verified by a phone call (to the woman’s parents, for example, to ask them about their faith and practice); more than that, it is his already-stated view (in an ealier responsum that we’ll get to) that we do not require full testimony to establish that people are heretics or have abandoned observance to the extent that they no longer count as witnesses.

When Marriage Isn’t Marriage and When Non-Marriage Might Be

From there, he moves to a broader claim, that a marriage performed by a Reform rabbi or in a civil ceremony does not count as marriage, does not even create an halachic presumption that she is a married woman [which matters for how we evaluate later evidence about her status—if we presume she’s married, we require a higher standard of proof before we can think of her as unmarried]. To create that halachic status, we need an act of kiddushin with proper witnesses.

One more problem, though, is that the Gemara holds that ein adam oseh be’ilato be’ilat zenut, that men do not intend an act of sexual relations to be promiscuous, they intend it to count as act of marriage [while we today enact the first stage of marriage only by giving a ring, and oppose any other way of doing so, an act of sexual intercourse with that purpose in mind can createkiddushin]. If so, living together would count as halachic marriage, since it was well-known, including by valid witnesses.

It was R. Feinstein’s longstanding view, however, that nonobservant Jews did not, in fact, care about be’ilat zenut, promiscuous sex, and that for such people living together did not create an halachic marriage. [This is an eminently logical position, and has become truer since, when people clearly don’t count living together as marriage, since they get very excited when they eventually do get engaged; however, it assumes that a Talmudic statement about how people think or act was not meant as timeless and universal. That raises questions we can’t analyze here, about which assertions about people’s intentions or motives are universal. For another time].

Maybe Civil Marriage Should Count

R. Yosef Eliyahu Henkin [who was fourteen years older than R. Moshe Feinstein, and was of at least equal halachic stature in the US until his passing in 1973, but who left little in writing and is therefore less well-remembered, I think] long disagreed with R. Feinstein about this kind of situation; he held that civil marriages counted, even were we to say that nonobservant Jews don’t care about be’ilat zenut. Since this couple made clear that they intended to be married, their acts of marital relations (enacted in private, but when two people are married, the world is allowed to assume they are having marital relations; part of “the world” will be valid witnesses) could create kiddushin and nisuin, full marriage.

[For all that this, too, is logical, I note that it would create more problems than R. Feinstein’s position, since any civil marriage would need a proper halachic divorce, with a get. All the children of second marriages of mothers who were first civilly married and divorce would be mamzerim, a status that can never be erased].

The saving grace here, which even R. Henkin would accept (claims R. Feinstein; R. Henkin was no longer in this world to consult), is that they got married before a Reform rabbi. In their minds, that was what created the marriage, so they would not view their later marital relations as creating that. We don’t see that marriage as valid, however, freeing us to see them as a) not married by their wedding ceremony, since it was led by a Reform rabbi, b) not so averse to promiscuity that they would never have sexual relations unless it was within a marriage, and therefore c) continuingly not married, even though they don’t realize it.

Once we can deny they were ever married, their civil divorce isn’t a problem for us. The flaws in that first wedding, in other words, help us not worry about the lack of a get. And, by the way, she’s not halachically married this time around, either, since this wedding, too, was conducted by a Reform rabbi.

What Disqualifies a Witness

R. Alpert had been concerned that we might have to see the witnesses at the first wedding as acceptable since they weretinokkot she-nishbu, like babies taken captive by non-Jews [this is halachic shorthand for those who cannot be blamed for their ignorance—one way that can happen is if they were kidnapped as infants and raised by non-Jews. Today, many authorities extend that status to those raised in nonobservant homes; since they couldn’t know any better, we can’t see them as fully culpable for their lack of observance. R. Alpert was suggesting that should mean we have to trust their testimony].

R. Feinstein has previously dealt with that, in Even HaEzer 1;82 (a long responsum we do not have space for here). In his view, such Jews may not be blame-worthy for their lack of observance (like non-Jews), but they’re also no better than non-Jews in terms of testimony.

They are better than non-Jews in that we feel more of a need to reach out to them, to try to bring them to proper observance [whereas, he seems to imply, we don’t feel a particular need to try to help non-Jews find their way to proper observance of the Noahide laws]. But until they do in fact return to full participation in halachah, they cannot count as witnesses.

More, he says that for as long as one holds heretical beliefs (even a person who knows no better), that person is not fully part of the Jewish nation [and this applies to many more people than just those born and raised nonobservant]. In particular, we cannot trust the testimony of any man who denies Divine reward and punishment, since he has no reason not to lie (because he doesn’t see it as bringing consequences).

That’s also true for someone who believes in reward and punishment generally, but doesn’t know there’s a punishment slated for those who testify falsely. It’s even true for a Karaite, who believes in the written Torah but not the Oral Law—such people know that it’s prohibited to testify falsely (that’s explicit in the written Torah), but don’t believe in the full punishment that the Oral Law tells us. Just that lack, too, invalidates them as witnesses.

Limits on Tinnok She-Nishbah

For our final surprise in this responsum, R. Feinstein doesn’t think the friends who attended the first marriage do, in fact, count as tinnokot she-nishbu, since they see many observant Jews (he refers us to a Radvaz, who limits the category even further). That’s a radical statement, with enormous ramifications for how we view nonobservant Jews, most of them requiring greater stringency than commonly practiced today.

Here, though, it fosters a leniency, that R. Feinstein can recommend the girl in question (the daughter of this second marriage) to the Jewish school, to try to teach her Torah, and perhaps influence her and her parents to return to observance. But, he cautions, don’t start with convincing them to have a fully halachic marriage; for as long as they’re not yet observant, better to leave them unmarried, so we don’t have to worry about a get should they split up.

It’s a fascinating topic [in the book I hope to eventually write, the responsum for 8 Shevat has R. Herzog discussing such marriages as well], and raises a host of topics, such as our presumptions about the nonobservant, in their motives and theirhalachic status, the definition of tinnok she-nishbah, and how we relate to Talmudic principles that no longer seem true.

In the end, though, it’s an example of R. Feinstein finding a way to allow a Jewish girl go to a Jewish school, and for us to hope to help her find her way to a full Jewish life, despite some significant obstacles in that path.