Report and Comments about the Conference on Qinyan and Qiddushin at the Rackman Center, Bar Ilan University

Thu, 06/20/2013 - 1:48pm -- JOFA
By Debby Koren

This past Wednesday, the Rackman Center for the Advancement of the Status of Women held a conference on "The Necessity of the Component of 'Acquisition' in Halakhic Marriage."  They called it "The Necessity of the Property Component in Halachic Marriage," but I'm not pleased with the translation of the word qinyan to "property".  A qinyan is an acquisition, or an act of acquisition.  Property is what is acquired, and there are many types of property and many types of acquisition in Jewish law.  Just to give one example, qinyan of a slave does not give you the same rights as qinyan of an animal. You may slaughter the animal, but you may not slaughter the slave, even though you own him.
 
The conference had two sessions, the first addressing the question of the value of the qinyan in a Jewish marriage.  The question posed for the session made the assumption that there is in fact an element of qinyan in halakhic marriage. Though this is an assumption that I agree with (the first mishna in Qiddushinis a good place to start), there are many who will disagree, and there is a never-ending debate between those who recognize that there is a qinyan and those who attempt to reinterpret the use of the language and who try to claim that there is no qinyan, perhaps just an act of qinyan, but only as something symbolic, a remnant of ancient times.  (All apologetics, to me.)  Thus, the first session was primarily a series of presentations by the various speakers (the chair of the session Dr. and Rabbinic Court Advocate Rachel Levmore, Rabbi David Bigman, and Rabbi Elyashiv Knohl of Tzohar) who explained why they thought that there really isn't a qinyan, and those who maintain that there is (Rabbi Dov Linzer speaking in English via a video hookup and Professor Zvi Zohar).  
 
Rabbinic Court Advocate Rivka Lubitch (from now on, Rivka) suggested that the qinyan is no longer relevant or effective, because people today (in Western society) do not think that people can be owned.  She focused on the problems of mamzerim and ways to alleviate the difficulties of those who are on the list of mamzerim maintained (wrongfully) by the Rabbinic courts.  Unfortunately, none of her suggestions (not presented here in her order) are realistic.  A child resulting from the union of a male mamzer and a gentile woman (or a female slave) is not a mamzer, but a gentile (or a slave).  The resulting child can then convert to Judaism (and the slave can be freed, becoming a full Jew), so that the child does not carry the taint of mamzerut.  Sorry, no equivalent solution for a female mamzeret.  Why anyone who has to suffer the stigma ofmamzerut would want his child to join this warm and inclusive religion is beyond me.  
 
But I came up with an idea: a JDate website for male mamzerim to meet women whose conversions are revoked or who have difficulty converting in the batei din.  Just think how much they have in common, starting with anger towards their treatment by the batei din!  The website could also allow agunotto meet men with conversion problems (so they are gentile).  After all, a child resulting from such a union is NOT a mamzer!!  The aguna doesn't have to wait forever for the SoB to give her a get.  She can meet a guy who would have liked to be Jewish and get on with her life.  A free weekend holiday will be given to the first couple to meet on this website!
 
Another of Rivka's suggestions was that the batei din should not accept any testimony about mamzerut (this is the approach of the Conservative batei din, from what I understand).  This is a fine idea (won't solve anything for those already named), but I don't believe the Orthodox batei din - not in Israel or outside of Israel - will buy it.  And, besides, there will be certain communities of Jews that will keep their own lists (there are such websites, already).  Only if enough Jews, even observant ones, pay no attention to the yihus of potential spouses for their children would this work.  The same is so for the idea that it can be statistically shown that all of us are actually tainted - we are allmamzerim, similar to the idea that Sanherib mixed up all the nations so that we don't know who the descendants of Amalek are.  (You can read about this idea in Hebrew, here.)  If most Jews, in particular those who are observant, really don't care, then the problem will go away.  But so long as there are significant numbers of Jews who feel the need to check someone's bloodline, the problem won't go away.  
 
Her last suggestion (I presented them out of order) is to accept the halakhic opinion that children conceived by in vitro fertilization are not mamzerim, even if one or both of their parents are.  Even assuming the batei din in Israel would agree to this halakhic opinion, what does it actually mean you would be telling a mamzer (or mamzeret) to do?  To have a relationship with someone whom they can't marry legally in Israel and then go through what is a difficult, demanding, unpleasant - to say the least - medical procedure if they want to have a baby, so it will not be tainted?  Wow, such a kind religion!  Where do I sign up?
 
Rivka's concerns about mamzerut actually bring us to the real point of the conference.  It really doesn't matter whether you think there is or isn't aqinyan in Jewish marriage.  Sure, the idea of the qinyan is offensive to feminists; even if it were true that it is just symbolic, merely the language used in so much of our rabbinic literature is offensive.  But putting that aside, bottom line - it is the difficulty of getting out of a marriage (and all the related aspects that I have been pointing to in my blog) that must be dealt with.  The organizers of the conference seem to think that if only the qinyan could be taken out of the qiddushin (an idea that makes no sense, given the obligatory elements of halakhic marriage), then there would be no problems of agunotand mamzerut (which, Rivka tells us, these days is almost always the result of women who are denied a get giving up waiting).  So the real point of the conference was addressed in the second session, in which the question posed was: "It possible to have a halakhic marriage without a qinyan, and if so, how could this be done while keeping most of the familiar ceremony intact?"
 
Since it really isn't possible to have a halakhic marriage without a qinyan(unless you already think there is no qinyan, but then why do the problems still exist?), what we did hear in the second session were suggestions from the speakers for alternative marriage ceremonies.
 
Dr. Ariel Picard's suggestion that we should marry according to Noahide law, because this is something that exists in our rabbinic sources, and so is an authentic halakhic alternative, is odd.  Civil marriage is also a form of "Noahide law", so it seems to me that the fact that he has a halakhic term to pin it on makes him feel better.
 
Rabbanit Malka Piotrkowski suggested amending the ketuba to obligate a man who does not give his wife a get to go to prison.  "If she is imprisoned, so should he be."  We know that there are men who are willing to sit in prison rather than to give their wives a get.  This suggestion focuses on just one of the set of very complex problems with Jewish family law.  And, we can simply say the old cliche "two wrongs don't make a right."  Malka (please forgive me for leaving out the full title and name) admitted that Prof. Ruth Halperin-Kadari (of the Rackman Center) was not enthused with her idea.  The most important thing that I think that Malka said was her critique of the Tzohar rabbis, because many of them do not support and encourage use of the prenup (discussed in a previous post).
 
Professor Noam Zohar offered three suggestion, in order from least preferred to most preferred.  His suggestions are basically identical to what I have said in various places.
1) A lot of people still will want a traditional marriage, but the least that they should do is to sign the prenup.
2) A better option would be conditional marriage (also described briefly in that post).
3) The best option would be not to have any kind of valid qiddushin.  You can make a ceremony look a lot like a traditional one, but changing the "formula" of what the groom says to the bride, for example, would invalidate it.
 
The first option is quite practical, but limited in its value, and addresses only one problem with halakhic marriage and divorce.  The third option is also very practical - do whatever ceremony you like, but DO NOT have a civil marriage (such as in Cyprus) and then register in the Misrad HaPnim (Office of the Interior), because once you register in Misrad HaPnim as a married couple,  dissolution of the marriage would still be in the hands of the batei din.  No mention was made of a Reform ceremony, but when I tell people these same three options, I suggest that as a possibility for option 3.  "Reform" is not a dirty word in my vocabulary.  Reform rabbis know how to make meaningful life-cycle events with Jewish content, and yet there will not be qiddushin.
 
The second option actually has something very appealing for those who like to work within the halakhic framework, and recognize that halakha always had many solutions for "creative compliance".  A properly written set of conditions can solve all of the problems of halakhic marriage, while still being a halakhic marriage, so long as it is in effect, and null and void, if it is not.  It does not solve the problems of the patriarchal model in the ceremony itself (Noam Zohar mentioned that he will not say "amen" to the first blessing, which addresses men: "... Who forbad us the betrothed and permitted us those who are married to us"  - "us" are the men.)  It does not eliminate the qinyan.  But the biggest hurdle is finding people who are well-versed in the intricacies of drawing up such a document and who are willing to conduct such weddings. This solution is for those who are willing to do their homework and find the appropriate mesader (or mesaderetqiddushin.
 
The question to ponder, following this conference, is: are there people out there who can continue on the path of Rabbi Rackman, for whom the center is named?  (One place to learn about Rabbi Rackman's work in the matter of freeing agunot is Aviad HaKohen's book Tears of the Oppressed - An Examination of the Agunah Problem: Background and Halakhic Sources.)
 
For the Hebrew-readers among you, you will find a more detailed write-up in my Hebrew post.
The Center stated that all of the lectures will be available for viewing on their website. 
 

This post was reposted with permission from Debby Koren. It was originally posted to her blog vatashardevora.blogspot.co.il.

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