By Shulamit S. Magnus
Editor’s note: This is Part II of a blog about the aguna issue. It shows that approaches currently in use have long been tried and have failed to solve the problem, and proposes solutions that would free current agunot and end iggun. Part I discussed the underpinnings of iggun in halakha and some of the politics around the failure to end it.
The problem with power is that there is no speaking truth to it when it holds all the cards.
— Dahlia Lithwick
The Unilateral Power of Men
Iggun (the state of being so chained) is caused by the sacrosanct, unilateral, exclusive power of Jewish men in the halakhic system to contract, and end marriage. This being the case, attempts to pressure, cajole, punish or penalize men who withhold gittin — core tactics of aguna (Jewish woman chained in marriage against her will) advocacy organizations — not only miss the point. Such efforts, however well intentioned, feed and exacerbate the problem by reinforcing the abusive husband's awareness of his power. They do the same for the all-male rabbinic courts, both of whom become the central focus when such courts order men to issue a gett and the men refuse, despite sanctions which, outside of Israel, are social (shunning); and inside Israel include job loss, freezing bank accounts, and jail.
While some men accede to pressure, others respond with even more resolute refusal. In one infamous case, that of Tzviya Gorodetsky, the husband sat in an Israeli jail for more than two decades until a private rabbinic court annulled the marriage, finally freeing Tzviya. In the meantime, agunot in such cases remain not only chained but sidelined to male power struggles — secondary patriarchal victimization atop the first.
Halakhic Exceptions Abound, but Not for Agunot
There is another reason to cease the tactics used by aguna advocate organizations: a proven record of failure. The problem is not lack of halakhic expedients to end iggun but the refusal of rabbinic courts to apply them. Aguna advocates often cite the many creative ways that halakhists over the generations have found to circumvent conflicts between biblical and rabbinic law and changing realities — about business dealings, Sabbath, festival, and other observances — but not about freeing agunot and ending iggun.
Susan Aranoff and Rivka Haut, veteran aguna activists and authors of "The Wedlocked Agunot" write, "…halakhic solutions to [iggun] exist. Over the ages, wise rabbis have devised ways of easing difficulties caused by halakhic strictures," and they cite one of the expedients named in the above list, heter iska, "which structures forbidden interest as profit from an investment." It would certainly not cheer them, or other aguna activists in the U.S., Israel, and elsewhere, to learn that these words, almost verbatim, were pronounced in Europe a hundred years ago.
The problem of agunot was a central topic at conferences organized by women's organizations in the 1920s: Bnos Agudath Israel (in Lodz); the Vienna Women's Conference that was part of the second World Congress of Agudath Israel; the World Conference of Jewish Women (in Hamburg); the Women's International Zionist Organization (WIZO) that met in Zurich. Dr. Ada Reichenstein, a delegate from Lemberg (Poland) to the World Congress of Jewish Women in Vienna in 1923, described the "question of Jewish marriage and divorce [as] an [eastern European] catastrophe," referencing some 25,000 women in one region of Poland alone whose husbands had disappeared during World War I and who could not remarry because the deaths had not been confirmed by halakhic criteria. At the 1927 International Conference for the Protection of Jewish Girls and Women in London, Bertha Pappenheim, the quite Orthodox founder and leader of the Jewish Women’s Organization of Germany, denounced the failure of rabbis on this issue, saying:
We have at this meeting several rabbis from Eastern Europe, and I had hoped that they would listen to us and do something to improve the difficult position of so many Jewish women. It is not only a question of 'agunoth' but also of facilitating divorce. I had hoped that a Sanhedrin of Rabbis would come together and that they would introduce the needed ritual reforms and re-organize Jewish ceremonial dealing with this matter. That is what I had hoped, but I have been told that we must not expect it, for the rabbis do not have the power to introduce the changes asked for 6;golus’ [exile], but it is a 'golus' within a 'golus.' "
As Naomi Seidman notes, "Pappenheim was not persuaded that the rabbis were truly powerless to address the problem of the aguna; she was particularly offended that rabbis seemed willing to reform Jewish law to make business dealings easier, while claiming that the same could not be done to ease the way for women.” Leah (Levin-Epstein) Proshansky scored the problem of agunot for the Warsaw-based monthly, Froyen Shtim (Women’s Voice), whose inaugural issue — in 1925 — called attention to the problem, in particular, that of abandoned wives left undivorced by men who emigrated.
Seidman writes:
Proshansky… excoriated such husbands… but reserved [her] harshest criticism for the rabbinic leadership that treated the problem with indifference… Rabbis were quick to criticize women for succumbing to immodest fashion trends, [but] were silent [about] abandonment… Proshansky [rejected] the notion that the Polish rabbinate sympathized with abandoned women but was unable to help them… In Proshansky’s words, rabbinic literature is full of… accommodations to urgent circumstances. She mentions as an example eter iska, the rabbinic ruling rendering it permissible to lend money with interest despite a biblical prohibition… For men saddled with mentally ill wives, rabbis found a way [heter meah rabbanim] to allow the husband to divorce his wife without her consent.
But with regard to women denied a gett, with a few notable exceptions, the rabbinic answer was then, as it remains, "sorry, nothing we can do."
It does not take advanced feminist consciousness to note that normalizing women as perpetual, inevitable victims of male privilege and abuse accords with broader patriarchal attitudes; that the reason iggun has not been resolved is because it goes to the heart of male control — ownership — of women; to the heart of patriarchy, in short. This is why rabbinic creativity has eluded this problem while deftly maneuvering around so many others. This is why continuing to appeal to the same rabbinic system that perpetuates the problem to remedy it is not only futile but counterproductive. We don't need theory to see this; we have history.
Gett Extortion
Gett extortion is nothing new, either. Records from the pre-Zionist yishuv in Palestine as well as from eastern Europe document the demands of husbands for payoffs to grant gittin. Such extortion has become a full-fledged enterprise, abetted by rabbinic courts. Aranoff and Haut cite case after case of rabbinic courts in the U.S. operating to abet gett extortion, a phenomenon they call, "the open institutionalization of extortion." "The idea," they note, "that it is acceptable for men to put a price tag on the gett was so widely accepted that Rabbi Yehuda Levin, director of Get Free, a short-lived organization, unabashedly described himself as a 'negotiator' whose mission was to obtain a get for a woman at the lowest possible price" (for a fee, of course). Gett extortion, they report, "is so widely accepted by rabbis that they actually solicit 'charitable' donations for that purpose," thereby encouraging the practice of hostage taking and blackmail of a particular, designated, population — women.
The State of Israel also turns a blind eye to and even endorses gett extortion. Rabbinical courts in Israel not only condone gett extortion but encourage it, in the words of Susan Weiss, founder and director of the Center for Women's Justice, "… as a valid, efficient, and religiously acceptable method of divorce resolution. Blackmail does not invalidate a Jewish divorce" (unless, of course, such tactics are exercised by the wife, which would cast aspersions on the husband’s sacrosanct "free will" in the matter).
"In a similar vein," Weiss states, "the Supreme Court [of Israel] has upheld the validity of contracts [obtained in rabbinic divorce courts], in which women have waived their … property and legal interests in return for a writ of divorce, refusing to find that such divorce agreements were signed under duress;" one justice finding gett extortion no different than arrangements made in regular contract disputes — as if women are equal participants in the contract that is rabbinic marriage, with any say about its terms and responsible for making a bad deal.
Some rabbinic authorities have taken forthright and courageous positions, despite shunning and attacks on their integrity, to propose solutions both to prevent iggun and free agunot. Several eminent halakhic scholars — Rabbis Louis M. Epstein; Saul Lieberman; Eliezer Berkovits — proposed such solutions in the early and mid-20th century; these were adopted by the Conservative/Masorti movement but rejected in Orthodoxy for political reasons: agreeing to implement halakhic decisions elaborated and accepted outside of the Orthodox establishment would confer legitimacy on the Conservative movement, another expression of male power struggles at the expense of women. Indeed, the acceptance or rejection of these expedients became a defining line between the Conservative and Orthodox movements as these were in formation in the U.S. — once again, the objectification of women.
More recently, pioneering rabbis in the U.S. and Israel — Rabbis Emanuel Rackman, Simcha Krauss, Daniel Sperber and some others — have established their own courts in which they apply various methods to free agunot, not least, through retroactive annulment (which has no effect on the status of children of such marriages).
Continuing to appeal to the system to deliver results other than those it has by pleading with the men who run it, whose male privilege immunizes them from ever sharing the predicament of agunot, is a demonstrably futile and demeaning, proposition. As Dahlia Lithwick puts it, "The problem with power is that there is no speaking truth to it when it holds all the cards."
Current Approaches Exacerbate the Problem
Tinkering with this problem, much less continuing the same tactics that have — however inadvertently — become part of the problem and its perpetuation — is clearly not the way to go. Solutions exist both to prevent iggun, and to free agunot, now. Iggun is not caused by bad husbands or bad rabbis. It derives from kinyan and kiddushin, which degrade women's full humanity, whether or not iggun eventuates, and which should be abolished on that ground alone. There are other ways, based on rabbinic traditions elaborated for men and therefore, treating both parties with equal status and concern, to enact Jewish marriage. One, proposed by Rabbi Rachel Adler, is adaptation of halakhic partnership law. Another, used by Rabbi Aviva Richman and her spouse, Tzemach Yoreh, uses nedarim and hatarat nedarim (halakhic vows — nothing like the emotional pronouncements used in Christian and other wedding ceremonies, but legally binding contracts, and their dissolution), for marriage and divorce, respectively.
These proposals honor Jewish tradition by adapting rather than discarding it; by treating halakha as the serious praxis that those who elaborated it intended, but applying to its treatment of women the injunction, "Justice, justice, shalt thou pursue" (Deut. 16:20); and by taking the radical statement of Genesis 1:27, which declares female and male as in the Divine Image and making it an imperative — halakhizing it. This verse, so unlike the one with which this essay opened, has not been halakhized, certainly, not with regard to women. But that neglect is reparable. Indeed, it can, must, become the charge for tikkun in our time. Women are in the Divine Image. That status is categorically incompatible with treating women as sex objects or as wards — never mind, hostages — of men; as anything but equal not to, but with men: authors of our own lives. If cultural conditions in previous eras precluded this insight, delivered, literally, from on high, awaiting us from the dawn of Creation, it is certainly available to us now, as is the charge to make it actionable, in norms of behavior.
As for freeing agunot, now: women who married without even prenups (the best of which are no guarantee, but better than nothing) — and women who are agunot — must declare that, when they married, they did so without being warned that they could become agunot by entering into marriage via kinyan and kiddushin, and that, had this information been shared with them, they would have sought iron-clad protection from that possibility or refused the marriage; and that therefore, withholding this information constitutes a situation of mekah ta’ut: an agreement entered into on the basis of mistaken, misleading, incomplete, or deceptive information, which therefore, voids the marriage in the case of iggun.
Women who married intended to marry, not to become hostages or subjects of extortion. They never gave informed consent to the latter situations; on the contrary, relevant knowledge was withheld from them that would have let them protect themselves from dire harm — a basic right in any contractual agreement under rabbinic law. Any woman whose husband withholds a gett or demands payment for it must have her marriage annulled immediately, upon demand — hers — on grounds of mekah ta’ut. Not giving a gett when one has been asked must trigger this action ipso facto. A gett withholder or a man who demands payment for one, would trigger the end of the marriage in those very acts. This would end iggun on the spot.
Kol yisrael arevot zo la’zot: All Jewish Women are Responsible for One Another
What responsibility do those outside of Orthodoxy have regarding this issue?
Al ta’amod al dam re’ekha, the Torah (Lev. 19:16) teaches: do not stand by as the blood of your companion is shed. It is unthinkable that those outside of Orthodoxy would adopt a triumphalist stance about iggun because they were born into or subscribe to variants of Judaism which, one way or the other, have obviated the problem; or because they subscribe to no religious structure. Others of us were born into other variants and have profound attachments to them. Orthodox and ultra-Orthodox women are entitled to individual freedom of conscience and freedom of religion no less than anyone else.
Jewish women must be arevot zo la’zot because, for all our differences, we share the predicament and complicated challenge of Otherness in a beloved tradition, in which we are both insiders and outsiders. We have different ways of dealing with that challenge but its dialectics and imperatives are our common inheritance as Jewish women.
It is not only unrealistic but terribly unfair to say to Orthodox agunot, "Why don't you just leave?" Such questions disregard the impact of family, of formal and informal education– of socialization and its internalization; the ties that bind women raised in any variant of Orthodoxy to their families and communities. It is to fly in the face of the very meaning of "Orthodoxy," which does not, as is commonly assumed, connote belief in the God of Torah, or even traditional observance, but rather, belief in the authority of the rabbis, past and (Orthodox) present. It is difficult to convey traditional reverence for great rabbis, their knowledge and piety, and for the authority of halakha, which is believed to derive from Moses at Sinai and to have been passed to them.
Even when individual rabbis and rabbinic courts prove wanting, even very wanting, the fault is understood to be with them, not with the system as a whole. The very fact that significant reforms were enacted in halakha, including some — like the ketubba, which once benefitted women — abets this belief. Those of us outside of Orthodoxy must understand why seeing halakha as androcentric, patriarchal, and misogynistic is so difficult for insiders to see or accept. An entire edifice of belief, a world of meaning, a way of life, is threatened by it.
Women who know no life outside of Orthodoxy have formal but rarely realistic choice to leave. To disavow the authority of halakha in the most fraught area of taboo — regarding gender and sex — is an extreme act with tremendous consequences, some of which — the label "adulteress," the stigmatization of children as "mamzerim" — we have mentioned. To flout authority in this area is to risk alienation from parents, children, siblings; from friends; from the synagogue one has prayed in, the schools one has attended and which one's children attend, and from which they will likely be expelled; the neighborhood one lives in; one's job. This is not a decision about a law but about one’s entire life and sense of self, everything one has been taught, believed, lived, and loved.
I know of no study of agunot, specifically, who have left the system and freed themselves but studies of ultra- and modern Orthodox Jews who have dropped out of that world for any number of reasons illustrate the difficulties and devastating price, emotional, familial, and financial, such people pay. To posit a choice that Orthodox and ultra-Orthodox women have to abandon halakha and the requirement of a gett, effectively, is to blame the victims rather than to appreciate, as in other situations of abuse, the complexity of women's imbrication with the world in which they were raised and to work to find ways to lessen its abusive power over women. Orthodox (or any) women should not have to cease being who they are in order to be free of dead marriages and extortion.
Half the Jewish world resides in the State of Israel, in which Jewish women, regardless of their religious beliefs or observance, are under the rule of halakha for divorce and have no kind of choice to leave the system.
Iggun is not an Orthodox problem; it is a Jewish problem. And it is our responsibility, our duty, to solve it.
When a problem is treated as intractable, that is what it becomes. We have become inured to "the aguna problem," to shaking our heads at the latest egregious case, to fury and handwringing, to empty denunciations, empty not because they are insincere but because they achieve nothing — as if iggun was an ineluctable law of nature rather than a product of humans, amenable to solution.
Solutions exist. We must educate against the use of kinyan and kiddushin for marriage — used also in Conservative Judaism. We must not only use but make known the use of alternatives at weddings; support agunot in demanding and using rabbis and rabbinic courts that use measures that free them, swiftly and assuredly; and for the use of measures that end iggun, once and for all. All this is attainable.
We must liberate ourselves from learned helplessness.
Let there be no more "Agunah Days," which, however well intentioned, ritualize the victim status of women and contribute, however inadvertently, to the too-accepted notion that women’s victimization is normal and inevitable.
Et la’asot: it is time to act, to end this.
Shulamit Magnus is professor emerita of Jewish studies and history at Oberlin College. Her work on the memoirs of Pauline Wengeroff won a National Jewish Book Award and a Hadassah-Brandeis Institute Translation Award. She is a social and cultural historian of Jewish modernity in Europe, specializing in questions of identity, Jewish women’s history, and the workings of gender in Jewish societies. She lives in Jerusalem.
This essay is based on her chapter in a forthcoming book to be edited by Rachel Adler and Rachel Sabath Beit Halachmi.