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Rabbinical Assembly Reacts to Rabbi’s Guilty Plea of Kidnapping

Posted on May 8, 2014

In response to the guilty plea of Rabbi David Wax to charges of conspiracy to commit kidnapping, the Rabbinical Assembly issued the following statement:

The Rabbinical Assembly condemns the actions of Rabbi David Wax, an Orthodox rabbi who confessed to kidnapping and extortion in a case to rescue a desperate agunah, or “chained woman,” whose husband would not grant her a divorce, thereby effectively preventing her from ever being able to marry again. 

Judaism embodies many examples of how we can both preserve tradition and resolve fundamental problems that affect people’s lives, including personal status issues such as marriage and divorce. Indeed, Jewish law provides for a halakhic mechanism for resolving divorce disputes in the form of hafka’at kiddushin, the retroactive annulment of marriages.

The Joint Bet Din of the Conservative Movement presides every year over approximately 30 cases of hafka’at kiddushin, whereby the marriage is annulled based on the principle found in the Talmud (Gittin 33a) that all weddings are performed under conditions laid down by rabbinic authorities, and that rabbinic authorities can annul the betrothal if it is not found to be in keeping with the laws of Moses and Israel (k’dat moshe v’yisrael). Since 1990, the Joint Bet Din has presided over hundreds of cases of hafka’at kiddushin, thereby allowing women whose husbands refuse to grant a divorce, attempt to blackmail them, or disappear to remarry.

The notion that a woman’s ability to leave a marriage must be totally reliant on a man’s permission is anathema and an aspect of our Tradition that would be denounced by its own framers if they were legislating today. All over the world, we see countries in which women have not attained the freedom and equality that are their birthright as human beings.  Even within our own society, there is still much work to be done on this front, and it is the duty of Jewish communities to affirm the priority of human dignity within our tradition. Practices that were forward thinking a thousand years ago need to be rethought. Marriages that trap women in such traumatic situations, and interpretations of tradition more generally that perpetuate this fundamental wrong, are inconsistent with our Jewish values.

hafka’at kiddushin reveals our timidity and our movement's flaw

For a good portion of my 45 years in the active pulpit rabbinate, I found myself trying to understand why a movement that I believe is so correct on principles has been slipping rather than growing in capturing the support of the Jewish community-at-large.  Whether in the USA or in Israel, growth in respect of a religious movement, disregarding birthrate as a factor, has been the lot of the Reform and not us.  And I find this statement on the Agunah an example of why we find it so hard to capture the community’s  respect for Conservative Judaism.  The statement printed above shows us trying to move forward but holding on so tightly to the safety rope, a rope tied to the post of the Past to guarantee that we won't fall.  But that rope also guarantees that we can't soar.  

Do we genuinely believe that the inequality of a woman's position in divorce proceedings is pitifully unequal, and that our Sages would not have tolerated the current situation as stated above?  Then let's follow through and stand for divorce equality.  We mustn’t stop at a pipul of Hafka'at Kedushin, a postion taken by the Catholic Church that earns nothing but laughter and scorn by insiders and outsiders both.  Can we be proud of responding the plight of the Agunah by telling her to renounce her marriage, to certify that it is as if it never happened? How foolish to try to delete the reality that besides the challenges it once had its delights, that at some earlier times it brought her happiness, that it was the context of her having children and raising a family? 

We should be ashamed to say that Hafka'at Kedushin is our movement’s response to a recalcitrant husband.  Instead we should reaffirm our stated principle that women are equal to men and thus correct the archaic system that insists a get is a one-way street?  Where is our courage to be relevant and real and honest? Instead we are still looking over our shoulders hoping to argue “authenticity” in the courts of our right-wing co-religionists who regard us as illegitimate from the start.  We should look not at what is behind us but at what is in front of us to see how effectively the Reform and Reconstructionist movements are filling the vacuum we continuously leave when we resist being true to our fundamental maxims.  Read once again these words which I quote from above:  "… and it is the duty of Jewish communities to affirm the priority of human dignity within our tradition!”  Is there “the priority of human dignity” that remains outside our tradition?  Those last three words are the equivalent of a "But," for they allow the halakhic system of the past that was created when "the priority of human dignity" was barely extended to all segments of society, particularly women.

We want to move forward from those days and that prejudice but we tie ourselves down simultaneously with blind adherence to the halakha that restrict such ethical honesty.  How frightened we are of straying, of losing our mooring. I wonder how we were able to decide to permit igniting a car’s ignition and driving on Shabbat, a gross violation of an Av Melakha MiD’oraita but even forty years after Virginia Slims not able to free ourselves from the chains of our ancient divorce status and permitting women to sue for divorce, making a get an equal opportunity ritual.  

My point is not just this Agunah issue - it is with our movement for the length of most of the last half century.  What have we done lately for the Jewish People since we counted women in the minyan?  Have we stepped up to the plate of contemporary society since we allowed turning on lights on Shabbos and driving to shul (on the condition that there is no Orthodox or Conservative synagogue in walking distance)?  Our problem boils down to our disregard of both of the terms in Waxman's watchword, "Tradition & Change."  We hold fast to Tradition but are terribly fearful of Change. We hold fast to the name Conservative as if we're still fighting Classical Reform’s drastic and irresponsible changes of the Treyfeh Banquet, when we and only we were the bearers of tradition in the USA.  Those days are over.  There are enough beards and payiss to guard against the disappearance of “Torah-True Judaism.”  We are now a Centrist movement, we are Mercaz, in the middle.  That's no shame - it's a source of pride because we are willing to see value and shortcomings in both extremes.  That is what rabbinic legal debates are all about.  But we hang on to our label of "Conservative" and it has us running on a treadmill, getting exhausted but moving nowhere.  


I urge those who love the idea of balancing the past and the future with the present to do so, and stop worrying if those whom we are brainwashed to regard as authentic will approve of us, or if, by living and acting by our real values, we might break the chain of tradition that brought us here.  As a Conservative Jew and a Conservative rabbi, my tradition is one of examining thoroughly the values we have come to believe in, and then mustering the courage to be true to those values that have become our own.  And if we err, teshuva is always sitting piously by on the next Yom Kippur. WE can change again, but we would have acted from the imperative of our principles.

A Response from Elliot Dorff

The following was submitted by Rabbi Elliot Dorff, chair of the CJLS:

Our general philosophy of law within the Conservative Movement is that the burden of proof is on the one who wants to change the law rather than preserve it.  Especially when we can find ways to accomplish our ends within the parameters of the methods and content of Jewish law, our commitment to tradition requires that we follow that approach even when it would be both legally and practically simpler to issue a takkanah to abolish the old law and establish a new one.  This is part of what it means to be committed to the authority of Jewish law.  We have found ways to make major changes within the parameters of Jewish law on the status of women in Jewish life and a host of moral issues involving modern technology.

We have managed to use legal methods and values even when the goal was to change long-standing precedent on the status of homosexual sex.  The question was this: How we should respond to our new knowledge of sexual orientation and on the serious consequences heterosexism has on gay men and lesbians (e.g. four times the suicide rate among gay teenagers as among straight ones)? Some on the CJLS argued that there is indeed no pathway to the tradition to change their status and that we should go outside the law on this issue, but the ruling that was ultimately adopted that permitted rabbis to officiate at gay and lesbian weddings and permitted Conservative/Masorti seminaries to ordain otherwise qualified applicants did not take that route.  It instead argued within the halakhic tradition.  The ultimate ruling was not perfect from the standpoint of gay men, for it retained the ban against gay anal sex but it achieved the desired results of permitting Conservative rabbis to officiate at their weddings and authorizing Conservative/Masorti seminaries to ordain them if they wish and qualify to be rabbis.  As I have said to a number of gay men, "Do not let the perfect be the enemy of the good."  

Similarly, but for decades now, in the case of agunot our movement has created a way within traditional Jewish law to free them from their husbands so that they can remarry, a way that imposes no taint or legal restriction on either them or their children.  Is it perfect?  Of course not, for some of the very reasons that Rabbi Levin mentions. But unlike his suggestion, hafqa'at kiddushin preserves our own legal tie to the tradition while simultaneously removing the harms that caused us to act in the first place. In light of all the reasons that motivate us to be committed to Jewish law in the first place (see my book, For the Love of God and People: A Philosophy of Jewish Law, Chapter Four, for an exposition of twelve such reasons already in the Bible and Rabbinic Literature), we have sought and found a way to be both in line with the law and also morally sensitive to modern realities and concepts.

Finally, I want to remind us of the broad context.  In the vast majority of cases, the laws that we have inherited are not morally problematic at all.  In fact, much of what we mean by "morality" in the first place is shaped by a whole set of passages from the Bible and Rabbinic Literature.  So the good news is that the cases in which we face this need effectively to change the tradition while still seeking a link to it, while serious, are few.

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