Rabbi Shmuel Herzfeld on Agunot

The Sin of Indifference

By Rabbi Shmuel Herzfeld

Shavuot 5773, May 2013

On Shavuot we read the book of Ruth.  One of the most famous scenes in the Book of Ruth takes place when Ruth and her sister-in-law Orpah set out to accompany Naami on her return to Beit Lechem.

Naami’s husband and two sons have all died and so it is just Naami, and her daughters-in-law, Ruth and Orpah.

Naami begs Ruth and Orpah to return to Moab and not accompany her.   One of Naami’s arguments is: “Turn back, my daughters, go your way; for I am too old to have a husband. If I should say: I have hope, should I even have a husband tonight, and also bear sons; would ye tarry for them till they were grown? would ye shut yourselves off for them and have no husbands? nay, my daughters; for it grieveth me much for your sakes, for the hand of the LORD is gone forth against me’” (Ruth 1:12-13).

The phrase “would you shut yourselves off for them” in Hebrew is “halahein teiageinah.”  Naami was saying to Ruth would you really wait all those years to marry my next son. This phrase is the origin of calling a woman who cannot marry a man, an Agunah, or a chained woman.

Last Shabbat we heard powerful speeches from Cheryl Epstein and Tamar Epstein. Tamar is an Agunah; a chained woman because she is waiting for a divorce (a get) and cannot remarry and move on with her life without that get.

I don’t think that anyone who heard those speeches last week was not moved by her plight.  I was moved to tears and have literally cried when thinking about the cruelty that Tamar (and every Agunah) faces.

But the question moving forward is what can we do about this problem.  Some people said to me that “the rabbis need to solve the problem.” As a rabbi I know that I feel deeply the need to work hard to solve this problem and I take those comments personally.  Whenever I hear those words, I promise myself that I will work harder on behalf of Agunot.

But it is also too easy for people to simply say, “what are the rabbis doing to solve this problem?” I want to pose another question for our congregation and our larger community: “What are we in our community doing to solve this problem?”

The first step to solving the problem is to recognize that there is a problem.  Barbara Zakheim published a blog this week at Forward where she notes that there were 462 cases of Agunot over the past five years.  According to Ora (an organization that helps Agunot who need a get)there are currently 73 open cases that they are dealing with.

Each and every case of a person needing a get is a human tragedy of tremendous proportions.

We all need to recognize that this is a major problem in the Orthodox community. Recognizing the problem means that we all have to feel passionately as though this is our problem, and not someone else’s problem.  When Cheryl Epstein spoke here she said she was embarrassed and ashamed that until her own daughter became an Agunah, she always thought that this issue was something that affected other people’s daughters.  It was someone else’s problem, she thought.  Not hers.

The story of Tamar Epstein teaches us that we need to feel with tremendous emotion that if there is even one Agunah in our community we are all responsible for that condition.

Let us go back to the Book of Ruth.

The difference between passionately connecting to someone else’s struggle by making it our own area of concern versus just going on with our lives is the difference between the biblical characters of Ruth and Orpah.

The Midrash (Ruth Rabbah 2:19) tells us that Orpah carries the name Orpah because she turned her back on Naami and went home (she-hafchah oref lah-chamoteah).

Orpah is a negative name. For all eternity, Orpah carries the shame of not accompanying her mother-in-law to the land of Israel.

But what was so terrible about Orpah’s decision to go home?  After all, Naami herself had begged Orpah to return to Moab.  Orpah’s choice was between going back to Moab and resuming her life with her original family or instead going with Naami.  We know what her life would be like if she would have continued on with Naami.  She would become a poor refugee from an enemy country.  She would have to beg in the fields.  She would be vulnerable and open to all sorts of attacks.   Of course, Orpah would want to return to the fields of Moab. Orpah did what most people would do.

In reality, Orpah really didn’t do anything wrong in an active sense. She was simply ordinary.  She did what many others would do.  She went on with her life.  She had her own life to live.

Orpah’s actions were like the husband of Naami, Elimelech.  At the beginning of the book we read that there was a famine in the land and so Elimelech left Beit Lechem with Naami and their two sons and they traveled to the fields of Moab.

The Midrash despises Elimelech.  The verse says, “ve-shem ha-ish Elimelech, and the name of the man was Elimelech”(1:1).  The word “ish” connotes a prominent man who people looked up to, so the Midrash says, “keivan de-atah aktah,azlat lakh ushevakt lehon, when trouble came, you went off and abandoned them” (Ruth Rabbah, Introduction, 6).

But if we think about it, we have a slight difficulty with this Midrash.  Why is the Midrash giving Elimelech such a hard time?  We should be a little sympathetic to Elimelech.  After all, there was no food and his family needed to eat.  What was so bad about going to Moab in order to take care of his family?

One more question along these same lines:

Ruth and Orpah were Moabites.  Moabites were not allowed to marry into the Jewish people.  (Later on in the Book of Ruth, Boaz teaches the people that only Moabite men were not allowed to marry in, but Moabite women were allowed.) This is based upon a biblical verse that states, “lo yavo Ammoni u-movai bekehal Hashem, an Ammonite and Moabite cannot enter into the congregation of Hashem. Al devar asher lo kidmu etchem belechem u-vemayim, because they did not greet you with bread and with water when you left Egypt” (Devarim 23:4-5).

In contrast, just two verses later we are told that the Egyptians themselves could not marry into the Israelite community until the third generation of converts (Devarim, 23:9).

The Egyptians enslaved the Jews and murdered their infant boys and they can marry in after two generations.  All the Moabites did was not bring out bread and water for the travelers and for this the Torah says that they can never marry into our people.  What is the explanation for this inconsistency?

The sin of the Egyptians was the sin of evil and wickedness.  They were an evil nation.  The sin of the Moabites was the sin of indifference—they simply ignored our plight.

The Torah tells us that we should be more worried about intermarriage with the Moabites than about intermarriage with the Egyptians.  The Moabites can have a much more noxious influence upon us than the Egyptians.  It is a greater likelihood that we will succumb to the sin of indifference than to the sin of evil.

This is why Orpah and Elimelech are hated.  Not because they did evil, but because they acted with indifference.

We should be more worried about ourselves becoming indifferent than about ourselves becoming evil.

Indifference in our community is at the heart of the Agunah crisis.

Yes, there are wicked spouses.  But that is not an existential problem for our community as there will always be wicked individuals. The existential problem for our community is our indifference to their plight.

Let me give an example of how our indifference is manifesting itself and causing real damage.

In America the best solution put forth to the problem of Agunot in the Orthodox community is to sign what is called a rabbinic prenuptial agreement.  This is the solution that has been put forth by the poskim of the RCA and has been endorsed and encouraged by the RCA.

A rabbinic prenuptial agreement obligates a husband to pay a certain amount of money a day if he is called to give a get and he doesn’t comply. Recently a secular court enforced this document in an actual case.  (And, if people are already married then they should arrange for a rabbinic postnuptial agreement: http://theprenup.org/pdf/Postnup.pdf  We will have these available at our gala for people to sign.)

This solution is not a perfect solution, because it does not solve the problem of those who are currently Agunot, but it is a very, very good preventive measure to the problem. And so far, in the Orthodox community, it is far and away, the best, practical solution.

This is not a new suggestion by any stretch.  My wife and I got married in 1996.  We signed a rabbinic prenuptial.  I became a rabbi in 1999 and I have never performed a wedding without the couple signing a rabbinic prenuptial.  In fact, I wont even participate in a wedding–i.e. say a beracha or be a witness, if there is no rabbinic prenuptial agreement.

And yet, sadly, we should be ashamed and embarrassed about a sobering fact.  According to Barbara Zakheim’s article, in a survey of the RCA done by The Beth Din of America, over 65% of RCA rabbis that responded to the survey said that they will officiate at a wedding without the couple signing this prenuptial document.

I find this behavior to be inexcusable, reckless, dangerous, and insensitive.

It is inexcusable because RCA poskim endorse this as the best solution to the Agunah problem.

It is reckless and dangerous because the officiating rabbi is allowing this couple to be exposed to tremendous pain and damage.

And insensitive because by officiating at a wedding without a rabbinic prenuptial agreement the rabbi is in effect declaring that he is insensitive to the plight of Agunot.

But this is not just about what rabbis could be doing better.  The community bears responsibility for this indifference as well.

A congregation would never tolerate an Orthodox rabbi to officiate at a wedding without a ketubah.  Why are our communities tolerating this behavior on the part of their rabbis?

If people in every congregation around the country demanded that their synagogue rabbi accept this standard upon himself—not to officiate at a wedding without a rabbinic prenuptial agreement–if it was placed in the bylaws of the synagogue or if it was made part of the rabbi’s contract, then the problem would virtually disappear.

What prevents the people and the rabbis from doing this is for the most part, not ideological, it is just indifference.

This indifference is inexcusable.

My own personal belief is that we should even go a step further in the process of preparing couples for marriage.  I now recommend to every couple getting married that they should also have a general prenuptial agreement.  This prenuptial agreement would address the general areas that will be most contentious in the event of a divorce.

This was always the basis and understanding of the ancient document we call a ketubah. i.e. that the serious issues were worked out and arranged in advance of the marriage.

This is also the premise of a famous scene in the Book of Ruth. After Elimelech died he left real estate as an inheritance.  This real estate was protection for Naami and Ruth (4:5-11).  One was notable to acquire the fields of Elimelech without also marrying Naami/Ruth.

This was their protection in the biblical world.  There was always protection for the bride.  And when protection ran short, the rabbis did not hesitate to implement the necessary reforms.

The Talmud (Ketubot 10a) implies that a ketubah has biblical support, but a ketubah is never explicitly mentioned in the Torah.  When the Ketubah text was not functioning properly, Shimon ben Shetach (2nd c. BCE) instituted a reform.  According to Ketubot 82b, he ruled  “kol nichsayin acharain leketubah” all of the man’s property was placed on a lien to the ketubah.  This would serve the dual purpose of not discouraging marriage by making the man give the money to the woman in advance, but at the same time, it would make the man think twice before flippantly divorcing his wife.

If you study the Talmud Ketubot you will see that this is the basic reason why we have a ketubah to begin with: to provide protection for the rights of the couple.

In contrast, today the ketubah has become such a sacred document that people in the American Ashkenazi community are unwilling to touch it and tamper with it.  Ironically, it has reached the point that fealty to the text of the ketubah has undercut its original meaning.

I recognize the trepidation that many people will have about touching the actual text of a ketubah. This is why I think people should set up a parallel document—a secular prenuptial agreement that outlines the parameters of how a relationship would dissolve amicably.

According to the Midrash (Ruth Rabbah 2:20), after Orpah returned from being with Naami, the Midrash says she made a physical union with100 idolatrous men and from that union came Goliath.

In contrast, the Book of Ruth tells us that Ruth stayed with Naami and eventually formed a union with Boaz from which King David would eventually arise.

The Bible tells us that Goliath would arise and taunt the Jewish people daily.  Everyone ignored Goliath, but David arose and got involved.

The famous battle between David and Goliath is really the battle between those who are indifferent to the plight of others and those who are willing to get involved.  The silent majority are indifferent and just want to live their lives.  But we must be followers of David.  We must be willing to get involved—passionately–for the sake of others.

Orpah turned her back and left.  She went her own way.  We can forget about Orpah.

We love Ruth.  The name Ruth, means “reut devarim shel Naami,” she looked into the heart of Naami.  She saw the pain and the passion and knew that ordinary behavior was simply not acceptable.  The pain of Naami required her to do the extraordinary.  We must be the children of Ruth.