Monday, September 3, 2018

Even HaEzer and Dr. Kenegdo (or - - Beating Around the Burning Bush)



My series about anomalies in Chazal and the Murex Trunculus debate will need to go on the back burner until after the Yomim Tovim. I have one more test to take on the Toen Rabbani cycle which, due to some scheduling glitches, was rescheduled to two days after Rosh HaShannah. This test is on the second half of Even HaEzer and involves very elaborate issues of Halachic Family law. At present, along with the regular pressures of Ellul and Yom Tov itself, this requires all of my attention.

So lately, I haven’t been able to concentrate on analyzing Agadata – which means looking everything up. I only have time to review the parts of Even HaEzer that are necessary for the test and to read up on the Piskei Din that are released by the Rabbanut courts.

I think Even HaEzer is the neglected child of the Shulchan Aruch family. Nobody really studies it except the dayanim and toanim that need to know it. Of course, every Rosh Yeshiva needs to know how to be mesader Kiddushin, but this involves doing it right. They don’t need to know much about heteirei nissuin or safek kiddushin and, if they do, they call a dayan.

Even HaEzer deals with the most sensitive issues of our lives – not the least of which is hetter agunot. Real agunot. After this are issues of yichus – mamzeirus, geirus, pesulei kahal and pasulei kahuna. In short, who can be married to whom and who cannot. It also covers shalom bayis – marital obligations between spouses and under what circumstances can a marriage be dissolved. Also, marital property rights and what can widows and daughters demand from the estate of a deceased husband/father. And don’t forget child custody.

It doesn’t matter how we feel about any specific Halachos. If we are Orthodox Jews, then by definition, we are bound to these Halachos. These Halachos determine how “kosher” we and our relationships are. Our community and Judaism in general, can only survive if we adhere to them loyally. 

Because Jewish family law is so important and has such dire far-reaching consequences, the founding fathers of this great medinah did one very wise thing. They entrusted all of the Even HaEzer related issues into the hands of the Rabbanut. The most important spiritual parts – marriage procedure, divorce procedure, and all questions of status (eishes ish, Jewish status, pasulei kahal, and pasulei kahuna) are exclusively under their control. Property and child custody can be litigated either in Beis Din or secular court.  

Let me tell you that to be a dayan in Rabbanut family court is no piece of cake nor is it any picnic. Firstly, the scope of just Even HaEzer with its mere 178 simanim (less than half of Choshen Mishpat and a third of Orach Chaim) is vast. It is not something that one can learn in “his spare time”. Secondly, they must deal with the most dysfunctional and base segments of the population. Husbands and wives who don’t get along and who lie and cheat on each other and create all kinds of problems of pasulei kahuna and pasulei kahal and quasi-agunos. They include abusers and accusers who ruin each other’s social and financial lives and then demand monetary compensation after they did everything in their power to render their significant other friendless and penniless. 

Moreover, these problems are prevalent among those who are only marginally religious or totally irreligious and the free thinkers who believe that the Jewish world is better off in an environment of secular civil liberties and unbridled freedoms.

And, when their lives crash, the dayanim are expected to clean up this mess.

After reading countless psakei din, my view is that we are blessed with a solid corps of exceedingly learned and dedicated dayanim who carry a tremendous burden on their shoulders and they are doing a hero’s job of it. I don’t envy a single dayan (except for his scholarship). As the cliché goes: it’s a thankless job, but somebody has to do it.

And the only way they can do it efficiently, is if they have full legal backing of the State.

As such, the family courts of the Israeli Rabbanut are an intrinsic part of the legal system and its procedures and rulings have full legal status. It is subject to State law enforcement, perjury, and contempt of court just like any ruling from the secular court. And it needs to be this way.

This is one thing about our medinah that we must appreciate and support. It is vital to preserving the Jewish character of the people let alone that of the State. It protects our identity and kosher status and also serves to make marriage in our circles more stable and durable. It benefits all of us. 

One important statute meant to ensure that Jewish marriages in Eretz Yisrael are properly regulated by the Rabbanut, is the Marriages Registration Ordinance which is the law of the land. This ordinance gives exclusive authority to the various religious bodies­ – the Rabbanut in the case of us Jews – to regulate marriages and to determine who is authorized to perform them in order to help them protect us from charlatans. There are two basic parts:

1.   To officiate a marriage in EY, one needs to be approved by the Rabbanut. This is not too difficult for any genuine Orthodox clergyman. Some people are certified on a permanent basis and others only temporary. Any Rosh Yeshiva can get a temporary or one-time permit for a specific wedding, such as for a Talmid.

2.   Every such marriage must be registered in the Rabbanut. This helps ensure that one who gets married is Halachically fit to be married and is not currently registered as being married to somebody else. Not fool-proof, but it helps.

In order to put teeth into the second part, the law calls for a fine and even incarceration for up to two years for one who performs a marriage and does not register it. 

Remember that this is the law of the land and this is for our protection.  

We have to appreciate the fact that the medinah is reasonable at the very least in the Even HaEzer department. Halevay they should be as concerned about geirus. Unfortunately, even though yichus is in Even HaEzer, geirus is in Yoreh Deah. The state has not yet subjugated itself to Yoreh Deah.

And so it is, Jewish family law is probably the only area where the Chareidi world is on the same page as our secular government. The ironic thing is that this is probably the only area where the liberal non-Chareidi “dati” world is not. Those who believe in civil liberties and freedoms for all. Thus, my stomach twisted into knots when I was shown a recent blog (Aug. 23, 2018) in Times of Israel written by Dr. Susan Weiss titled: When the judges answer to a Higher Authority

If you don’t know who Dr. Susan Weiss is, here is the blurb on the blog post:
    ABOUT THE AUTHOR
Dr. Susan Weiss is the founder and director of the Center for Women's Justice (CWJ), an NGO leading the battle to advance the civil and religious liberties of Israeli women when compromised by state institutions.

Yes, I know. A few posts back I was criticizing JCW (Jewish Community Watch) and here I am criticizing the founder of CWJ. I don’t know what it is about these three letters, but I don’t get along with them. Incidentally, I am not too fond of the World Jewish Congress (WJC), either.

More about Dr. Weiss. As the blurb says, she is a fighter for civil liberties, which means living any way one wants, and for religious liberties, which means liberties from religious constraints. 

But, guess what? Even though she does not cover her hair, she is mitzvah observant. I personally spent a Shabbos in her house over three decades ago. Also, for all her work helping women get divorced, she herself has only been married once and still is. She has never been divorced (her husband wouldn’t dare!). Kol Hakavod! I suppose the “label” of left wing Modern Orthodox would fit. But Orthodox she is.

Back to her blog, the subtitle reads: Muscling in on areas where you have no jurisdiction violates civil liberties and makes a mockery of religious authority

This tips us off that she is quite concerned about civil liberties (if you didn’t read the blurb). She claims they have been violated due to encroachment from those with “no jurisdiction”. I find this claim questionable. She adds that it “makes a mockery of religious authority”. This part cannot be denied because she spends the rest of the blog mocking it.

Here is how it opens (emphasis mine - YH):
Last month, right before Tisha B’Av, police summoned Rabbi Dov Haiyun to their offices. In police hands was a decision of the Haifa State Rabbinic Court ordering them to open up a criminal investigation against Rabbi Haiyun — the head of Moriah Congregation, of the Conservative movement. Among other complaints, the court claimed that Haiyun had violated the Marriage Registration Ordinance, when he failed to register a marriage at which he had officiated. According to reports, police “put him in a prisoner transportation vehicle complete with iron bars on the windows, and took him away.”


If you are curious about what were the “other complaints”, it is for officiating at a wedding for an invalid woman. It could have been a suspected eishes ish, non-Jew, or mamzeret – the type of marriage that produces more non-Jews or mamzeirim. Of course, it may have been merely that she was pregnant with or nursing a child from another man which is only Rabbinic and temporary. But it is still forbidden.

Both of these activities (performing the marriage and neglecting to register it), if indeed they were done, are against the law. In other words: criminal. Jailbait.

With this, Dr. Weiss is insisting that the State Rabbinic Court is overstepping its jurisdiction and is very bothered that they choose to answer to a Higher Authority. (I wonder if she eats Hebrew National). 

She then goes on to list a few other incidents where she personally, in one case, and some unknown woman litigant, in another case, were held in contempt by a Beis Din and threatened with punitive measures. In her view, the State Rabbinic courts are overstepping their jurisdiction and evidently, she needed to write this blog post to lament this tragic state of affairs (and to mock the religious authority). 

Incidentally, from what she writes, there is no indication whatsoever that Dr. Weiss knows anything at all about the third incident beyond the one-sided report that she heard from the mouth of the offended woman. (Déjà vu all over again!) No indication at all that she researched the incident and can verify it.

At this stage, Dr. Weiss makes a very bizarre distinction. She writes:
Admittedly, the above situations are not identical. While rabbinic judges theoretically had the authority to hold me and the woman in contempt (we each had been present in their courts), they had no jurisdiction whatsoever over Rabbi Haiyun, who had not appeared before them.


Dr. Mrs. Weiss claims to be lawyer and a PhD (I am neither). A prerequisite of these credentials would be that one should know how to read. She claims that Rabbi Haiyun did not appear before the court. The document seems to say otherwise. (See it HERE) Although it is not 100% clear, the document says that Rabbi Haiyun “admitted [his involvement] as appears in the court protocol” at a court session that took place on July 16, 2018. This seems to indicate that he did indeed appear before the court. If he did not personally appear, he must have at least submitted a tatzhir (affidavit) which is a signed statement subject to perjury or other judicial scrutiny. All told, this is definitely an active case in the Haifa Rabbinical Court. It’s case number 1181464/1 if you are interested.

So the distinction that she admitted to may not be much of a distinction. But, sadly, she missed the more obvious distinction – or, at least, won’t admit to it. And, if she can’t see this distinction, it calls into question her credentials as a lawyer. It is this:

She and her woman friend were censured by the court for contempt. This requires an appearance in court. Rabbi Haiyun, however is not being called out for contempt. He is being called out for alleged criminal activity. And who is allowed to complain to the police about alleged criminal activity? 

Anybody. 

Any citizen has a right to complain to the police about a violation of the law. This is everyone’s jurisdiction. And who should we expect to be the watchdog for this law if not the official body that is charged with seeing that it is upheld?

She continues:
Yet the above situations have this in common: abuse of judicial power. In all of the above, rabbinic judges acted more like police than like judges. Judges adjudicate. Legislators legislate. Police use “legitimate” force to detain and imprison. This is called “separation of powers.” It’s the way democratic states check power to power, ensuring that government officials do not abuse the liberties of citizens who extended those powers to them in the first place.


"acted more like police than like judges." How so?

The Rabbinic court filed a complaint to the police as any citizen, and certainly any judicial body, may. Dr. Weiss may be disturbed at the bossy choice of words בית דין מורה which means Beis Din is instructing (or ordering) the police to investigate. I mean, why couldn't they ask nicely? Yes, it is firm language, but this is the style of a Rabbinic court which, as we noted, has the same authority as the secular court in this department. 

So they requested or “ordered” an investigation. Cool. The police did what they did. The court did not order the police to put anyone in prison or even into “a prisoner transportation vehicle complete with iron bars on the windows”. Just to investigate. We democracy lovers call this “separation of powers”. (Where have I seen this term mentioned recently???)

Incidentally, when she wrote in her lead paragraph “…and took him away” she makes it sound like they took him to some underground torture facility like Guantanamo Bay and he hasn’t been heard from since. I presume they took him no further than to the local police station. I also presume he did not spend the night locked up. 

From all this, it looks to me that Dr. Weiss is overstepping her jurisdiction. 

As the article continues, Dr. Mrs. Weiss gets totally carried away and loses sight of her opening paragraph (perhaps this was her goal). She writes:
Thus, state rabbinic judges, in violation of our personal liberty, have ordered the detention of rabbis and have punished uppity litigants by putting them in jail. In violation of our freedom of contract, they can force attorneys to step down from their cases


A few comments:
in violation of our personal liberty” – Dr. Weiss is somewhat delusional. Clearly, Dr. Weiss sings HaTikva and takes the line about להיות עם חפשי  – to be a free nation – way too literally. Every person has their perception of “personal liberty” and she certainly has hers, but the only ones that count are those that are enshrined in the law. When it comes to marriage law, the state has deferred to the Rabbanut which does not exactly support every leftist’s idea of personal liberties. The personal liberties which she would like to be protected under law, unfortunately are not. They only exist in her PhD head. So if they are not protected, then they are not being violated.

have ordered the detention…” – Not so! Dr. Mrs. Weiss is blatantly and knowingly stating a falsehood. I have read the order. You can read it, too (right HERE). What it says is what Dr. Mrs. Weiss herself said in her lead paragraph, the Haifa Rabbinic court ordered the police “to open up a criminal investigation against Rabbi Haiyun”. They did not order him to be detained. Of course, in many police investigations the person being investigated is detained for questioning for a few hours. That’s how they investigate. But they are free to investigate without detaining. The order was for investigation, not for detention.

I think it is well beneath the dignity of somebody like Dr. Mrs. Susan Weiss to twist the truth like a standard yellow journalist. Well, perhaps not. Perhaps she is just reaffirming her credentials as a lawyer.

…of rabbis…” – This is another distortion of the truth for propaganda purposes. The implication of her generalism “detention of rabbis” is used as if to bemoan a sacrilege of persecuting holy pious “men of the cloth” who should have some kind of divine diplomatic immunity. From where I sit, and even in the eyes of secular Israelis, the term “Conservative Rabbi” is an [oxy]moron. 

Dr. Weiss is probably definitely old enough to know the 1960s joke about My Son, the Captain (see joke HERE). The punchline of the joke is:
Listen, sonny. I don’t have to tell you, by Mama you’re a captain, by me you’re a captain, and by you you’re a captain. But by a captain you’re no captain.


This certainly applies to “Rabbi” Haiyun: By Rabbi Haiyun he is a Rabbi, by Dr. Weiss he is a Rabbi, by the police he’s a Rabbi, by his followers he is a Rabbi, even by me he can be a Rabbi… BUT by a Rabbi, he is no Rabbi. By the dayanim of the Rabbinic Court in Haifa (who aren’t really natives of Haifa but are from Yerushalayim and Bnei Brak and they know their stuff), this guy is no Rabbi.

After a few more paragraphs where Dr. Weiss digresses towards other “sins” of the Rabbinical courts, she gets down to what is really eating at her. She closes:
All this, and there are many more examples, because, as mentioned, Israeli state religious functionaries answer to a Higher Authority. In a theocracy, you may vote, but God legislates, judges, and executes.


At the end of the day (and the beginning of the next), Dr. Mrs. Susan Weiss PhD is shooting the messenger. If she has a problem with the Higher Authority, why doesn't she take it up directly with the Higher Authority? Why go beating around the [burning] bush? It doesn't seem like she has a whole lot of respect for the Higher Authority.


She is clearly an advocate for uninhibited civil liberties. Even HaEzer does not promote such civil liberties. The Beis Din upholds Even HaEzer. This is their job. They do it, and do it well. Regardless of whether or not “civil liberties” were violated, in the view of the Beis Din, the law was certainly violated. Both the law and Even HaEzer may not be a friend to “civil liberties” but they are on the books – not the “civil liberties”. 


Liberal minded people who don’t value these laws think that reporting violations like this to the police is nitpicking. But in the world of legalistics, there is no such thing as undermining any law. And for a veteran lawyer such as Dr. Weiss PhD to do just that is highly unprofessional. 

We all know there are two types of lawyers: one whose goal is to help people stay within the law and one whose goal is to enable people to circumvent the law. It is shameful to see a lawyer make a mockery of the law. It is blasphemous to see a shomer Shabbos Jew make a mockery of the Higher Authority.

On Rosh HaShannah we all daven that HKBH should be our King. He should rule over us and the entire world and we should live by His rules. We pray for this because it is what is best for us and the world. In short, we pray that the world should become a theocracy.

So, I wonder if Dr. Mrs. Susan Weiss PhD goes to shul on Rosh Hashannah and if her machzor says what mine does. And, if so, does she really say it? And if she does, what is she thinking?




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This is it for 5778. Kesiva v’Chesiva Tova to all my friends, relatives, and readers!
תכלה שנה וקללותיה, תחל שנה וברכותיה!

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