Each time we hear of yet another heart-wrenching and infuriating agunah story, we tend to point an accusing finger at the Jewish legal system that has created these circumstances, in which spiteful, angry husbands can cynically abuse the divorce laws to extort and torment their wives. And this is not an unreasonable reaction. It is true that within halachah, the husband alone possesses the legal authority to issue the Jewish writ of divorce, a get. A wife cannot issue a get, nor can a rabbinical court. Yes, the category of annulment exists in the Talmud, but centuries of legal precedent agree that annulment does not apply to such cases. So it can be stated fairly and accurately that the law itself, without intention to do so, has created the circumstances that enable these abuses to occur.
In the minds of some, this leads to the ineluctable conclusion that we ought to simply abandon the religious law. This, however, is a tautological nonstarter for Orthodox Jews. For us, the halachah is “our life and the length of our days.” A much more subtle and plausible version of the idea though, has begun to circulate within our community, namely, that if we are to remain committed to halachah as a system, then we have no choice today but to avoid creating halachically valid marriages. There are indeed any number of ways that a couple and a rabbi can purposefully subvert the halachic validity of a marriage ceremony, and any one of these ways would be sufficient to obviate the need for a get, should the couple separate later on. The justification for this proposal is simple and straightforward. If we have no way of ensuring a halachic off-ramp, then we simply have to avoid getting onto the halachic on-ramp.
On a visceral level, I understand why this proposal is appealing. There is even a sense of justice about it. Yet, I shudder to think about its possible unintended consequences. For as much as we are stymied by halachah in these awful agunah situations, we are thankful to halachah for having created the marriages and the families that so many of us enjoy.
While the Torah itself spoke of marriage in only a legalistic way, the talmudic literature reinvented marriage as a deeply committed, truly covenanted relationship. The rabbis of the Talmud utilized the verse “Love your friend as yourself” as the legal framework regulating the marital relationship, and they described the marital bed itself as a place where the presence of God should hover. And these were no mere homiletics. The Talmud legally mandates that spouses cherish and respect one another, and take responsibility for the other’s material and emotional welfare. In addition, the Talmud imposed the institution of the ketubah with an alimony payment at its heart, to prevent husbands from seeing their marriages as being easily disposable. In this way, it protected wives and protected the institution of marriage from being undertaken — and from being regarded — casually. Long-term commitment was bred into the system so that marriage would have the strength to endure the crises and conflicts that invariably affect every marriage at some point or another. And this is the legal and ethical nature of halachic marriage.
What might the consequences be if we began to advise our daughters to avoid entering halachically binding marriages? Even though it might seem a sensible and practical idea for any given woman, what would the impact be if it became the practice of the entire community? The same halachic system that frustrates us when we rally against a recalcitrant husband also produces the kinds of marriages that we desire to have for ourselves, for our children and for our community. This is part of the reason, after all, that we are committed to halachah to begin with.
The existence of agunot is the ugliest moral scar on the face of Orthodox Judaism, bar none. And each one of us who upholds halachah bears personal responsibility for mitigating the unintended yet devastating damage that it allows to occur. A couple of centuries ago, in a different time and place, this was easier to do. When a husband was tormenting his wife, or leaving her chained to a dead marriage, the local rabbinical court utilized various kinds of social, economic and even physical pressure to induce him to give his wife a get. But in our time and place, in which religious courts do not wield legal enforcement powers, and recalcitrant husbands can simply leave the social and economic orbit of the Jewish community, the old ways do not serve us nearly as well.
Today, in our time and in our place, the responsibility falls squarely upon the shoulders of each one of us. The first thing we each need to do is insist that every single couple that marries signs the halachic prenuptial agreement (go to rabbis.org). The halachic prenup is not a panacea, but it has the civil legal capacity to profoundly discourage husbands from withholding a get. Years ago, our synagogue board at Congregation B’nai David-Judea modified our bylaws to prohibit any rabbi ever employed by the synagogue from performing a wedding without a halachic prenup. Please check to see that your synagogue has a similar policy. And if you are already married and don’t have a halachic prenup, circle Sept. 7, 2014, on your calendars. This is the day on which the Pico-Robertson Orthodox community will be hosting a mass halachic postnuptial signing.
No less important, each and every one of us must also commit — fully and without any exceptions — to the watertight policy that there is never, ever an excuse or justification for extortion. No one, not our brother, nor our son, nor our rabbi, can ever attach conditions of any kind to the delivery of a get. Not a financial condition, not a child custody condition, not any condition of any sort. And we have to possess the moral vision and religious courage to loudly and publicly label any effort to impose such conditions for what they are — extortion — plain and simple. We can’t let ourselves be fooled or hoodwinked.
Extortion can hide even in the folds of piety or behind the mask of rabbinical ordination. We cannot fall for it. We have to call it out when we see it, for it may be up to you and you alone to save a woman from becoming an agunah.
We cannot have it both ways. If we choose to live according to halachah, we must take responsibility for halachah.
Yosef Kanefsky is senior rabbi at B’nai David-Judea (bnaidavid.com), a Modern Orthodox congregation in the Pico-Robertson neighborhood.