Monday, October 04, 2004

Solving the Agunah Problem II

Due to a request in the comments and a lengthy and very polite private e-mail, I took out my copy of the Winter 2002 issue of Tradition and reviewed the give-and-take between R. Shlomo Riskin and R. Jeremy Wieder regarding R. Riskin's long-standing proposal for marriage annulments (see here for a brief summary of R. Riskin's position). Why R. Wieder was chosen by the editorial board of Tradition to debate R. Riskin, and not someone with more experience in the area of practical dayanus, I do not know. But he performed admirably in demolishing R. Riskin's entire proposal, despite R. Riskin's opportunity to have the last word. What follows is a list of my personal objections, none of them addressing the fundamental halakhic issues involved. The reason for this is simple: In the real world, "metzi'us" - practical reality - trumps theoretical issues almost all of the time. R. Riskin's proposal is so impractical that there is no need to discuss the complex underlying halakhic issues. It is simply unfeasible.

I. Old Wine in New Flask

In the 1880s, rabbis in France proposed that the rabbinic establishment annul all marriages that end in civil divorce. This proposal was shot down by an overwhelming array of great Torah scholars. I ask, in what way R. Riskin's proposal is different? In fact, if R. Riskin finds that the plight of mamzerim - halakhically illegitimate children - is of equal concern as that of agunos, and I do not find that a stretch at all, then why should he not propose that a rabbinic court be given the ability to annul any marriage that ends in a subsequent remarriage without a religious divorce? Yet, that very proposal was suggested 120 years ago and soundly rejected. How is R. Riskin's proposal different?

II. Lack of Consensus

Any solution to the problem of agunos must - absolutely must - find broad consensus within Orthodox Judaism. Anything less than that will be disastrous. In R. Wieder's eloquent words: "The probability of the entire Haredi community agreeing to R. Riskin's solution... is somewhere between slim and none, with slim having left town." Any viable solution in today's world must have the stamp of approval of - at the very minimum - R. Yosef Shalom Elyashiv and R. Ovadiah Yosef. R. Riskin's does not. R. Riskin's claim that the Haredi community will eventually come around is, at best, wishful thinking.

III. Definition of Problem

More fundamentally, R. Riskin never defines who is an agunah and who is not. He can never solve the problem without defining which women deserve a get but are still not receiving one. (See here for more on this)

IV. Local Solution

R. Riskin's solution only affects women who have not yet wed. His proposal would prevent them from ever reaching the status of agunah. However, it does not address women who currently are already married. If that is the case, why not simply insist that these as-of-yet unmarried women sign an RCA pre-nuptial contract and avoid the potential problem in that way? R. Riskin's proposal, according to him, has the benefit of solving the problem for the following two situations: 1) women who do not sign the pre-nuptial agreement, 2) women whose husbands are rich enough to pay the large regular sum of money the agreement requires. If we focused our energy on having all young couples sign pre-nuptial agreements rather than trying to fight old battles, then the only unserved women would be the very rare case of agunos living in wealth. Is that worth the fight? Furthermore, as R. Wieder points out, R. Riskin's proposal is even less encompassing than the pre-nuptial agreement. R. Riskin's proposal only helps women whose husbands have been ordered by a beis din to give a divorce but have refused. It does not help the majority of agunos whose husbands have been able to avoid being ordered (rather than advised) to divorce their wives or have simply refused to show up in court. Again, had R. Riskin defined an agunah then we would be able to guage how well his proposal solves the problem. It seems that he defines the problem very narrowly and, therefore, his solution will only help a small number of agunos. The pre-nuptial agreement is far more effective.

V. Solution Already Exists

In my mind, the solution to the agunah problem already exists. It is the pre-nuptial agreement. We need no longer spend our intellectual energy on trying to find a solution but must now face the much more difficult task - implementing the solution. We need to ensure that every young couple signs a pre-nuptial agreement.

VI. Negative Implications

Whenever any well-intended rabbi proposes a solution to the agunah problem, he unintentionally creates the impression that those who did not offer solutions or who oppose his solution have little concern for the suffering of agunos. The atmosphere that creates this impression is not the scholar's creation, but it is something he must bear in mind. When a rabbi proposes an unfeasible solution, the impression is created that he cares while the others do not. This is simply incorrect. The others are, perhaps, more aware of the halakhic and political realities and are not willing to offer proposals that are unworkable. By offering this proposal for the annulment of marriages, R. Riskin has unintentionally created the impression that he cares while the others, who oppose his proposal for very good reason, do not care. This is a very unfortunate and damaging false impression. It is another setback for the honor of the general rabbinate, a calling that has been steadily losing honor over the past half-century or so.

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