Rabbi Jachter's Halacha Files

(and other Halachic compositions)

Parshat VaYishlach

14 Kislev 5768

November 24, 2007

Vol.17 No.11

A Kohen Marrying the Daughter of a Jewish Mother and a Non-Jewish Father - Part 2

by Rabbi Chaim Jachter

Introduction

Last week, we presented the debate in the Rishonim regarding the permissibility of a Kohen marrying a woman whose mother is Jewish but whose father is not Jewish. The accepted Halacha is to follow the opinion of the Ramban that a Kohen is forbidden to marry such a woman, but if he already married her, we do not require the couple to divorce. Acharonim debate as to whether this constitutes a biblical or rabbinic prohibition. Rav Moshe Feinstein rules that it is a biblical prohibition, whereas Rav Ovadia Yosef believes that it is a rabbinic prohibition.

Civil Marriage

One ramification of this dispute is the debate that rages between Rav Moshe and Rav Mesass as to whether a rabbi may officiate at a wedding of a Kohen to a daughter of a Jewish woman and a non-Jewish man if the couple already has been married civilly and has been living together for an extended period of time. Rav Moshe forbids a rabbi to conduct such a ceremony, whereas Rav Mesass permits it.

This question depends on when we say that once the couple is together, we do not compel them to separate. Rav Moshe's approach is based on the fact that the overwhelming consensus of rabbinic opinions regards a couple that is married in a civil ceremony as not married according to Halacha (as we discuss in Gray Matter 1 pp. 63-68). Thus, the civil marriage is a non-event as far as this issue is concerned. Since the couple Halachically is not married, Rav Moshe forbids a rabbi to conduct a ceremony that will thereby facilitate a sinful marriage.

Rav Mesass, on the other hand, believes that since only a rabbinic prohibition is involved, we do not require the couple to separate, since it is difficult for them to do so. He understands the Ramban as permitting the couple to remain together in a case where it would be difficult to separate. Rav Mesass goes as far as to permit a rabbi to perform the wedding if the couple is already living together in sin even if they have not married civilly.

The current Sephardic chief rabbi, Rav Shlomo Amar, rules (Teshuvot Shema Shlomo 5 E.H. 8) in accordance with Rav Mesass in a case of a Kohen from a non-observant family. In such a case, there is an additional lenient factor. In a sexually promiscuous era, he reasons, there is concern that the Kohen's mother engaged in relations with a non-Jew prior to the child's conception, disqualifying her from marrying a Kohen and rendering the children such an illicit marriage Chalalim (non-Kohanim, lit. profane). In such a case, there exists a Sefeik Sefeika (double doubt). Perhaps a daughter of the union of a non-Jewish man and a Jewish woman is permitted to marry a Kohen, and even if not, perhaps the man is not actually a Kohen (due to his mother's illicit behavior). One may rely on such a Sefeik Sefeika in case of a rabbinic prohibition, as Rav Ovadia Yosef rules (Teshuvot Yabia Omer ad. loc.).

Rav Amar's ruling has far-reaching implications, as it implies that Kohanim born to non-observant parents might be regarded as Safeik Chalalim. One should speak to a Rav for guidance regarding this issue.

The Rechovot Beit Din vs. the Appeals Beit Din

In 2006, a Kohen from a non-observant family wished to marry a woman whose mother was Jewish but whose father was not Jewish. The couple had been living together (in sin) for approximately one and a half years. The Rechovot Beit Din denied the couple a marriage license, in accordance with the ruling of Rav Moshe Feinstein. The Appeals Beit Din overturned the ruling and permitted the couple to marry, in accordance with the rulings of Rav Mesass and Rav Amar.

Rav J. David Bleich concludes (Tradition Summer 2007) that the Appeals Beit Din's ruling "strikes this writer as an abuse of appellate power," since it simply ruled that Rav Mesass and Rav Amar's rulings should be followed instead of Rav Moshe's. He writes that Halacha "bars exercise of purely subjective discretion in choosing one set of precedents over another" as considerations for a higher authority to reverse a decision of a lower authority. He also argues that non-Jewish courts of appeal, "from which the Israeli system of rabbinic appellate review was adopted," would not reverse a decision simply because a lower court followed one viable opinion over another.

We may defend the Appeals Beit Din's ruling on three counts. First, Rav Ovadia Yosef's reason for permitting the Rabbinic Court of Appeals (Teshuvot Yabia Omer 2 C.M. 2) to function is that once the system of appeals is established, the lower Beit Din issues its ruling on condition that it is not voided by the Rabbinic Court of Appeals. This grants the Appeals Beit Din very wide latitude in reversing a lower Beit Din decision (wider than what is permitted in a civil court of appeals). Second, Rav Moshe's ruling does not consider (as noted by Rav Ovadia Yosef) what Rav Yaakov Breisch classifies as the majority opinion of classic authorities that this prohibition is only rabbinic in nature. We should note that Rav Moshe might acknowledge that the majority rules that it is a rabbinic prohibition, but nevertheless he may rule in accordance with the minority opinion, since he finds it compelling.

Finally, a question of public policy may be motivating the Appeals Beit Din. The policy concern might be that which we discussed last week - the need for the State of Israel Rabbinic Courts to be able to serve as much of the Israeli non-observant population as possible. The Appeals Beit Din might believe that since there is a viable lenient opinion permitting a rabbi to conduct a wedding ceremony for this couple, this opinion should be relied on in the current challenging situation faced by the Israeli rabbinate. The Appeals Beit Din may be concerned that strict rulings such as these might cause public pressure to mount for the Israeli government to rescind the State of Israel Rabbinic Court's compulsory authority. Finally, my Talmid Avi Levinson adds that if the couple was Sephardic, there is no compelling reason why they should not be permitted to follow the rulings of the leading contemporary Sephardic rabbis rather than that of Rav Moshe.

Conclusion

Halacha accepts that once such a couple is married, we do not require that they separate. It is important to note that Halacha has a concept of She'at HaDechak KeBeDieved Dami, in case of pressing need one may permit initially that which ordinarily would be permitted only post facto. The Appeals Beit Din may feel that the current circumstances constitute a She'at HaDechak in which we rely on lenient approaches that under normal circumstances we would not rely upon.

Postscript

The Israeli Appeals Beit Din apparently was struggling to find a way to continue serving the Israeli non-observant community. Observant Kohanim, though, are strongly advised not to enter relationships that hinge upon obtaining an exceptionally lenient approach from a rabbinic authority. If there are serious Halachic objections to a Kohen marrying a certain woman, perhaps Hashem does not want that couple to be married. I have seen marriages involving Kohanim relying on extraordinary leniencies end in failure.

It should also be noted that Rav Yonah Reiss, the director of the Beth Din of America, stated that he believes that Rabbanim in America would follow the ruling of Rav Moshe, since Rav Moshe's rulings carry great weight in this country, especially those regarding matters of personal status. Sephardic rabbis in America, though, might follow the approach of Rav Mesass and Rav Amar.