The cure for Jewish divorce: no more marriage

Our favorite romance writer, Naomi Ragen, goes from strength to strength.

First she revealed ("The debate over large families," April 14) that she is clairvoyant. She can look at a 10-year-old tending her younger siblings and instantly detect the inner misery behind the her smile. A week later ("The great aguna debacle"), she showed herself to be a halachic expert capable of authoritative pronouncements on the laws of Jewish marriage and divorce.

On the latter score, at least, she generously allows that any reasonably intelligent person could do the same by just going to www.agunah.com, which celebrates the work of a beit din claiming to have "solved" the problem of the recalcitrant husband who refuses to give his wife a get. At that site, one learns that every Jewish marriage can be retroactively annulled. And presto, the problem of the recalcitrant husband is solved.

Unfortunately, not one halachic authority has endorsed the advocated "solution."

Nothing has so united Orthodox rabbis in decades - from the far Right to the far Left, from those sympathetic to the feminist agenda to those deeply suspicious - as their rejection of the "annulment beit din."

The annulment beit din is the creation of a practicing accountant, who himself denied his first wife a get for seven years, and a rabbi whose views were publicly declared heretical by Rabbi Joseph Ber Soloveitchik, the towering figure of Modern Orthodoxy, nearly a quarter-century ago.

But the unanimity of halachic scholars gives our newfound halachic expert no pause. Armed with her clarity of vision and the sword of her awful righteousness, she knows the real reason for their opposition: The rabbis are men and therefore care not a fiddle for the plight of women.

Every large Jewish community in Europe had a rabbi who was expert in solving the classic cases of agunot - women whose husbands had disappeared. After the Holocaust, the surviving rabbis struggled mightily to ensure that married women whose husbands could not be found would nevertheless be able to remarry. The rabbis of today are the students and heirs of those previous generations. Yet according to Ragen, they are all heartless and/or cowards.

The "solution" to the problem of recalcitrant husbands she extols is based on the following propositions:
(1)Any man who refuses to give his wife a get is a sadist;
(2) If he is a sadist today, he was always a sadist;
(3) No woman would have knowingly married a sadist.

Therefore every Jewish marriage is voidable as soon as a wife expresses her desire for a get and it is not forthcoming. As the head of the annulment beit din, told The New York Times, a woman "has the right to say I loved you yesterday, and if I change my mind today, the man must go."

Were the above syllogism valid, Judaism would be transformed, mirabile dictu, into the functional equivalent of Catholicism: no divorce, but easily available annulment. The thousands of pages of responsa dealing with the circumstances in which a husband can be compelled to issue a get would stand revealed as a waste of ink and paper, since gittin are unnecessary whenever the husband withholds it.

That syllogism is based on the assumption that marriages can be voided where there was an undisclosed latent psychological defect. The halachic literature, however, is devoid of examples of latent psychological defects as grounds for retroactive annulment. (The matter might, of course, be different, if one spouse or the other failed to disclose previous psychotic episodes or the ongoing need for medication or was an active pedophile at the time of marriage.) Even latent physical conditions like glaucoma, which if untreated leads to blindness, are not sufficient. Only undisclosed blindness itself would render a marriage voidable.

Using the theory of latent psychological defects in such a blunderbuss fashion flies in the face of the cardinal Jewish belief in free will. Each of us is born with a wide variety of tendencies - some towards good and some towards evil. But Judaism insists that we are not determined by those tendencies. We have the ability to overcome our innate weaknesses, as well as to squander our innate strengths. People can, and do, change. The Talmud teaches: Even if a person known to be evil betrothes a woman "on condition that I am a righteous person, " she requires a get. Perhaps he repented in his heart.

And few things so change a person - usually for the good, though sometimes for the worse - as the dynamics of marriage. What we are after 20 years of marriage, cannot prove what we were 20 years earlier.

The heads of the annulment beit din offer one more ground for annulment. No modern woman would knowingly consent to kiddushin (halachic marriage) if she knew that the form of the kiddushin, if not its inner content, was the same as that for the conveyance of real property. Therefore every marriage is voidable.

In one fell swoop, they have cured the problem of Jewish divorce by doing away with Jewish marriage. Such marriage is no longer possible because the requisite consent is inevitably lacking. No legal system is immune from exploitation by the unscrupulous. In secular legal systems, couples frequently use marriage and divorce law to continue torturing one another before, during, and after the dissolution of the marriage.

The annulment beit din, however, not only fails to cure the problem of the recalcitrant husband, it threatens to create new problems even more intractable than the first. Because its annulments will not be recognized by virtually any Orthodox Jew, the offspring of second marriages contracted by "freed" women will be viewed as the products of adultery - i.e., mamzerim - and unable to marry.

Twenty years from now, will we hear from another avenging writer berating the rabbis for not finding a "cure" for the problem of mamzerut, and claiming that only their cold hearts stand in the way?

And will she also assure us, "The rabbis could do it. Trust me, I'm Orthodox"?