Wednesday, February 22, 2017

Once a Mamzer, Always a Mamzer


In my last post I very audaciously referred to Masechet Yevamos as a “mamzer” Masechta. That is not a very nice term. This is because we all think of a mamzer as one who is not a very nice person.

When the term “mamzer” is used as a metaphor, we may have two concepts in mind. The first is that a mamzer is illegitimate. Trust me, chas v’shalom, this is definitely not the concept I was thinking about when I used the term here except, perhaps, in the sense of it being an outcast. Even that is not really true. Yevamos is in no way illegitimate and not really an outcast though I am sure that many people learning it would rather be learning something else.

The second concept is the more applicable one. A mamzer is one who is cold, conniving, and insensitive to anybody else. Very unsympathetic. Not only is he insensitive to the pain of others, he is not hesitant to inflict such pain himself. If you’ll pardon the expression, a real ba****rd!

When we open Masechet Yevamos we would expect it to begin telling us how and when to perform the great mitzvah of yibum. But it doesn’t. It opens by how and when not to perform the mitzvah of yibum. It begins that 15 types of relations are not marriageable and therefore it cancels the mitzvah even for a kosher tzara (step-wife). And thus Masechet Yevamos become our encyclopedia of forbidden relationships.

So now, a brief overview on forbidden relationships. For our purposes we can split these relationships into 2 categories:

·         Issur Misa/Kares – Calls for death penalty

·         Issur Lav – Calls for judicial flogging

All incestuous relationships, homosexuality, bestiality and eishes ish (adultery) go into the first category. The second category is a list of lesser “crimes” that include: Issurei Kehuna (Divorcee, Convert or “Zonah”), Machzir Grushaso, Yevama L’Shuk, and Issurei Kehal (Mamzer, Moavi, Mitzri Rishon and some others).

There are two basic distinctions between the two categories. The first and obvious one is the judicial penalty for a willful infraction. As noted, the first category calls for death or kares (which is close to the same thing). The second category is satisfied with 39 lashes. This has no practical ramification in today’s era because we have no judicial punishments of any type nowadays.

The second distinction is as follows. Although in all of these cases, marriage between affected parties is strictly forbidden, in the cases of Category 1 even if the pair attempts to get married (when possible), it doesn’t work. The marriage does not take hold and is automatically null and void. The second category is much different. In these cases, the marriage does take hold but is considered a forbidden unkosher marriage. The parties are halachically required to divorce (in all cases). In days of yore when our batei din were empowered, they would force the separation. Nowadays, although Beis din usually cannot actively force them to separate, they can decree it; as the requirement to do so is always still in effect. They can also apply all kinds of psychological, social or financial pressure. There is no such issue as a forced get in these kind of cases.

The upshot is that, in general, for Category 1 offenses, there is no such thing as marriage and, accordingly, no such thing as the tragedy of being required to dissolve a thriving marriage between two soulmates that may also involve children. In the cases of Category 2, it can happen that two people are happily married for quite some time and produce wonderful offspring and suddenly discover that their marriage is not halachically sanctioned. When this happens, as long as the criteria that caused the problem (e.g., his status as a Kohen and her status as a giyores) cannot be challenged, there is no kosher way to sustain the marriage. The couple must either divorce or flout the halacha and remain married “in sin”.

אהבתי את אדוני את אשתי ואת בני - לא אצא חפשי!

In real life cases, the rabbanim do everything in their power to invalidate a forbidden status which is sometimes successful in the case of Kehuna and oft-times successful in the case of Mamzerus. Sometimes they can “discover” that a giyores is really Jewish or that the supposed mamzer’s father (or mother) was really goyish (note Langer episode). They find all kinds of ways to invalidate a first marriage or, in a case of machzir gerushaso, the second marriage. But when the status is clear – a Kohen is a Kohen and a grusha is a grusha and a convert is a convert – there is no halachic way to fix the problem. With the exception of Yevama L’Shuk, all other statuses, once in place, are permanent.

When the chips are down, the halacha is firm. There is no way out. And in this sense, the halacha seems to be cold and heartless. Insensitive to the pain it causes. Very unsympathetic. Mamzerish.

Of course, Halacha is very firm and unyielding in every area. Kashrus, Shabbos, and certainly in Taharas HaMishpacha. But the stakes aren’t very high. Okay, so you have to kasher all your pots and throw out your dishes because of those mislabeled chickens. You’ll get over it. And so what if your house is burning down and there are no goyim around. It’s (partially) insured and its only eitzim and avanim. And as for your wife and what happened on the morning before your 25th wedding anniversary – well, there’s always next year.

But to dissolve a marriage and break up a family? A loving thriving one? With no hope of any remedy?

Can there be a bigger tragedy?

I imagine that most of us are not aware of any first hand cases where this actually happened. But I suspect that it’s not because the cases do not occur. I think that they are either resolved using the most far-fetched shoe-string hetteirim or all relevant parties just look the other way and pretend the prohibition is not there. One person who was my personal physician in the US was from a very prominent Orthodox family but he wafted in and out. Yep, he is a Kohen and he is married to a giyores. He told me so. He knows everything. And he does want to be more religious but he is not about to give up his wife and nobody is going to interfere. When his father passed away he actually came to my shul to daven shacharis so he could say Kaddish. When krias haTorah came around he didn’t want to go up for Kohen (he knew he is not qualified to) but Mr. “Kaufman” insisted he goes up (he was also his patient.) Afterwards, I asked the rav, “Can he do that?” and he said, “Of course not.” But he wasn’t going to fight Mr. “Kaufman”.

In this regard, an observer may view our Halachic system as draconian. Do we need to join the Hindus with a caste system and “untouchables”? The Torah that is in general so compassionate and sensitive to Human emotions and shortcomings, that presents a myriad of laws revolving around ואהבת לרעך כמוך and, as Hillel said, “What is distasteful to you, do not do to your comrade - and the rest is commentary…” – how can it be so “mamzerish” when it comes to our most cherished relationships?

Well, the first thing we need to understand is that HKBH only wants what is best for us, and so, the Torah requires us to live in a cohesive family oriented society. What we call a “nuclear” family. Accordingly, HKBH gave us mitzvos “designed” to protect and preserve such a society. We must understand that what is necessary to protect such a society can inevitably be harmful to an individual.

Let’s discuss adultery.

In any civilized society, there must be a sense of title and order. If marital relations were to be open-ended, lustful men would steal away attractive wives one from another, fights would erupt and people would kill each other. It would be a jungle. So HKBH must decree that an eishes ish is forbidden to any other man under the most extreme penalty.

Moreover, in a family oriented society, it is imperative that a woman becomes and remains a man’s wife and bears and nurtures his children. This is by no means a glamorous job. If marital relations were to be open-ended, women would roam from hut to hut looking for a better deal. Husbands wouldn’t be husbands and wives wouldn’t be wives and siblings wouldn’t be siblings. It would be Sodom and Amora. So HKBH must decree that a woman can only change partners if her husband releases her. Until then, she remains an eishes ish.

Still and all, an envious man may lust after another’s wife (Lo Tachmod) and coerce him to release her to him by law (make him “an offer he can’t refuse”). So HKBH must decree that a man cannot be coerced to release his wife.

All of these laws are necessary in order to preserve a civilized, productive society. But what will inevitably happen is that a woman who cannot co-exist with her husband or who is abandoned by her husband may not be able to obtain a consensual release. And she will be chained.

And so we deal with the Agunah problem.

Activists claim that the laws of the Torah are unfair and need to changed. But, above all, we must acknowledge that these laws are very necessary for the good of society at large. And any magic-bullet solution that makes the basic intent irrelevant will do more harm to society than good. It is an unfortunate side-effect that in some cases, individuals must suffer. In truth, BTW, the batei denim can resolve most cases as long as misguided people do not interfere, so the Agunah problem is not as extensive as it is made out to be.

After all this, adventurous married men and women may still want to misbehave on a short-term basis without considering long-term repercussions. Or a restless “agunah” may not want to wait for things to get sorted out and jump the gun. So, to prevent this, HKBH must “up the ante” by decreeing that even for a short-term liaison, the resulting offspring will be permanently illegitimate (mamzer).

And so we see that the innocent offspring must carry the shame of his parents’ indulgences. He must suffer for what is in effect the greater good of society.

After all this, adventurous people may want to try to legitimize their indulgences by granting temporary short-term divorces and then remarrying their spouses - what is known as “wife-swapping”. So HKBH must decree that if one divorces their wife and she marries another, she cannot be remarried (machzir grushaso).

Again, this is necessary for the good of greater society; yet, one who hastily divorces and breaks up their family and later regrets their hasty departure and is aching for reconciliation will be forever barred from correcting their error.

All of these deviant practices along with the debauchery of incest, bestiality, homosexuality, and fire worship (Molech) comprise the maaseh Eretz Mitzrayim and Eretz Canaan that we must desist from or else we will become like them – and get spit out of our land.

Aside from the need to prioritize the welfare of society above the welfare of the individual, we must acknowledge that the Torah was written for those who keep its laws. And, more than not, the “FFB” Torah observant community is relatively immune from the problem of forbidden marriages. (Of course, we are not totally immune from anything, but I mean in a relative sense.) It is most often those who are from families where the previous generations were not observant and who are not aware of the full list of forbidden relationships when they marry who are vulnerable to suddenly discovering that their marriage may not be “kosher”.

This is because in all these cases, the prohibition is in effect before one gets married. A Kohein is born a Kohein and a mamzer is born a mamzer (though it is very possible that he won’t know it) and a giyores is born a non-Jew. A divorcee becomes a divorcee before they move on to the next marriage. As such, the problematic status is always in effect from the outset.

An observant Kohen knows all the rules. He knows what to look for and not to get stuck.* Or, if we are dealing with a shidduch where there is the slightest chance of mamzerus, such as a non-observant grandmother who was married twice, we know to check it out properly to determine the status or to avoid it. An observant couple knows that if the wife remarries after they divorce, the husband cannot take her back; so they are more cautious about deciding to divorce in the first place.

*[Of course, there is always room for mishaps; most likely in a case where a mamzer truly did not know they are a mamzer and when it is not obvious that a woman is unfit for a Kohein.
It is very important that a regular girl who is dating knows some of the rules. The main issue is that if a girl was adopted from a non-Jewish origin, she is unfit for a Kohen. There are situations where the girl either did not know she was adopted, or the girl or her family did not think it was necessary to inform the boy that she was adopted but the boy was a Kohen! Very unwise.
But there is another issue that doesn’t get much press. And since we have spoken so much in the past about child abuse, it must be brought up. If a girl above the age of three was molested by a father, grandfather, brother, or non-Jew (but not an uncle or cousin), and the abuse consisted of genuine sexual contact below the waste, front or back, if the activity meets the criteria of a halachic sex act (maaseh biah), she is unfit for a Kohein.
Obviously, a qualified Rav must be consulted to determine if the act meets this qualification, but it doesn’t take much since it does not require penetration or climax. This is imperative before one is married. If such a girl is
already married to a Kohein and nobody else knows about it, then the status is similar to a woman who was unfaithful in that she is not trustworthy to say she was molested. So don’t tell anybody. If others know about it, she may, chas v’shalom, be in trouble. Call a Rav but don’t tell your husband first.]  

So, all told, we find that Yevamos is not so evil, after all. Of course, forbidden marriages that must be dissolved are devastating tragedies, but Yevamos tells us how to avoid them. Sadly, among the baalei teshuva, they are much more common. As unfortunate as this is, it is part of the baggage that those who have strayed – or their offspring – must carry. For perpetual Torah observant Jews, these occurrences are exceedingly rare. This is because, a forbidden marriage starts out forbidden, and stays that way for as long as the marriage is in effect. But a marriage that is on the up and up, stays kosher. Nobody who wasn’t already a mamzer can become a mamzer after they are married. Nor can somebody who wasn’t a Kohen become a Kohen. A born Jew can’t become a convert and a convert cannot become a born Jew. And nobody who initially married Reuven Cohen can suddenly become a divorcee from Shimon Stern in the middle of her first marriage.

This is almost fool-proof. Except that fools can be so crafty. Yes, there are a few exceptions. The obvious one is an unfaithful wife, but it doesn’t really count because I am writing about those who follow the rules, not those that violate them (and themselves). But there are some other exceptions that can apply even to those who have not broken any rules. And that is what I really have wanted to write about over these last two posts.

I can think of two such cases. But the exact details and the reason I decided to discuss it will need to wait for another post.

It is a matter of the utmost impotence.

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