Agunah Summit revisits plan to create liberal religious courts

Some agunot, observant Jewish women trapped in unwanted marriages, wait many years for a Jewish divorce. Meanwhile, a number of activists after having devoted decades to the cause, have begun to wonder whether a solution to the agunah crisis is possible.

Rivka Haut, for one, who 30 years ago helped found Agunah Inc., admitted that when Blu Greenberg—a magical name in Orthodox feminism since the 1960s—telephoned recently, suggesting an international agunah summit, “I was not so eager to come… Blu knows that. I said to her, ‘Why? We’ve had so many conferences. I organized some. What will be different?’”

For a good part of the summit June 24, said Haut, “I felt, why am I here?” By late afternoon, though, she said she had become more hopeful. There was discussion of creating a new bet din (rabbinic court), albeit only in the talking stage, that could start freeing agunot via Talmudic annulment prerogatives, dusty from lack of use, but a bet din’s prerogative nevertheless.  

The Agunah Summit brought together leaders from the West Side and the West Bank; rabbis and rebels; politicians such as Israel’s Justice Minister Tzipi Livni and Supreme Court Justice Dorit Beinisch; pro-bono lawyers and celebrity lawyers such as Alan Dershowitz, and New York University Law School’s Joseph Weiler, one of the co-chairs of the summit and director of the NYU Tikvah Center for Law and Jewish Civilization, a co-sponsor of the summit along with JOFA, the Jewish Orthodox Feminist Alliance.

Although the summit, which attracted more than 100 people, was conceived as a gathering to find systemic Orthodox solutions to the age-old problem of freeing women from recalcitrant husbands, some participants were perplexed by the prominent participation of Livni, Beinisch and Dershowitz, none of whom claim to be Orthodox or well-versed in the agunah field. But Dershowitz did contribute a legal tactic, suggesting that it be considered an “ethical violation” for any lawyer to advise a client to refuse to give a get [Jewish divorce], upon penalty of disbarment.

There were several calls for the agunah problem to be seen not as an Orthodox issue (the Conservative and Reform movements amended their divorce laws years ago) but as a “human rights issue,” though Greenberg and Weiler didn’t quite agree on how this would manifest itself. Greenberg preferred an internal approach, “not to run to the United Nations but to take the human rights issue within Judaism.” For Greenberg, human rights means “it is not just the agunah [who is affected] but … it’s a violation of every single woman who is faithful to the tradition.”

Weiler, however, was willing to take an external route, through The New York Times, he said, and into the court of public opinion, wherever that might lead. The law professor, who is also editor-in-chief of the European Journal of International Law, asked, “Who is the greater mikhalel Hashem (desecrator of God’s name)? The one who goes to the international community, to the national community, to The New York Times, and exposes this disgrace, or the one who allows this disgrace to take place?”

He added, “We cannot delegate such an important matter to ecclesiastical authorities who will then, in turn, delegate it to the husband who will then, in turn, bring about this violation of human rights. And it’s not just the iggun [the unresolved limbo of a woman denied divorce] that is the violation. It is the very inequality of the bargaining position. It is the very inequality in the marriage itself,” an inequality born of the possibility of a distorted divorce, “that constitutes the assault on dignity, and that constitutes a violation of human rights.”

What Weiler and Greenberg did share was a complete fidelity to halacha as the ideal and basis of a systemic change that, rather than assist agunot on a case-by-case basis, would eliminate the problem altogether.

Rabbi David Bigman, rosh yeshiva of Yeshivat Ma’ale Gilboa – HaKibbutz HaDati, in Israel’s Galilee, said, “There can be an immediate solution which is not comprehensive or a comprehensive solution which is not immediate.” However, “what can we do tomorrow morning that would be significant, would be… the Rackman Court revisited.”

He was referring to the late Rabbi Emanuel Rackman, among the leading Modern Orthodox leaders of his generation, and one of the founders of The Jewish Week, who in the 1990s took it upon himself to establish a bet din that liberally freed agunot by issuing annulments, according to Talmudic guidelines. If the marriage is annulled, as if it never happened, it circumvents the need for a get. But the Rackman court was considered a rogue bet din, its rulings not accepted even within the Modern Orthodox community, and the project died a lonely end.

Rabbi Bigman suggested that a new “Rackman” imitative, with transparent procedures published and examined by scholars, could start with “the more obvious cases,” and thereby “test the waters.”

He predicted “an immediate ripple effect, because the moment the husband knows that there is an option of” annulment, “it will lessen his power” to threaten the refusal of a get, not needed if the marriage is annulled. “It won’t be comprehensive, but it will be almost immediate.”

Rabbi Asher Lopatin, the new head of Yeshivat Chovevei Torah, an “open Orthodox” rabbinical school, was on board with Rabbi Bigman. “This needs to be a super-charged Rackman model. There needs to be a list of [rabbis]—and I’ll offer my services—who will follow this bet din and say that we will perform marriages for former agunot,” released through such a court.

If only 15 percent of the Orthodox world accepted the new bet din, as was suggested, well, that was 15 percent more freed agunot than would have been otherwise. But one observer in attendance emailed after the summit, “How many of the offspring will be rejected when they apply to yeshivot because 85 percent believe they are [illegitimate]? … We need a halachic solution that will be accepted by significantly more than 15 percent.”

Weiler said at the summit, “The unity of the Jewish people is tremendously important. But if we say that unity means that we have to get the assent of every section of the Jewish people, there will never be progress on anything.”

Rabbi Lopatin agreed, saying this bet din won’t be universally accepted, but “we have to do what is right,” and gradually if the problem is being solved, “more and more will come over to our side. ... When we have a fair system that works halachically then that will be the new standard.”

Weiler wanted the problem of the agunah “treated like Soviet Jewry, like the Jews of Ethiopia,” with communitywide mobilization. But what was the true extent of the problem? For all the summit’s quest for academic and legal precision, there was more elasticity than precision when it came to data about agunot. No one said how many American agunot there were. According to a survey by The Mellman Group, and used by The New York Times, between 2005-10 there were 462 cases of agunot in the United States.

Ruth Halperin-Kaddari of the Rackman Center for the Advancement of the Status of Women at Bar-Ilan University, said there were some 200 cases in Israel each year, based on rabbinical court statistics, but she spoke on a broader group of “tens of thousands” of women who may feel threatened or intimidated by the idea that someday they may have to make concessions in a divorce proceeding to obtain a get.

She said the state has the duty “to respect, protect and fulfill human rights,” including the responsibility to protect women from get refusal and extortions.

Greenberg, reflecting on the day, said the summit made progress, and that “the creation of [religious courts]” that will deal with agunot is “an important step forward.”

She said the idea was to have the summit be a halachic, academic discussion, but to include the community. “Not only because it affects everyone in the community but because community has amazing power, and unfortunately the community, by and large, has been a bystander through all this.” 

Jonathan Mark is an associate editor at The New York Jewish Week, from which this article was reprinted by permission.