Israel’s top Rabbanim in the 1970’s had to grapple with the following situation: Yoram Spitzer, a soldier in the Israeli Defense Force who was killed in the Yom Kippur war had no children. His wife, Helena, was not allowed to remarry without Chalitzah. Yoram's only brother lived in Germany and was married to a non-Jew. He adamantly refused to cooperate. His refusal was rooted in his extreme hatred toward his sister-in-law who he blamed for his brother's death. He called her a murderer, because she insisted that she and Yoram remain in Israel instead of joining him in Germany.
The situation of an Ach Mumar (apostate) who refuses to perform Chalitzah is a recurring challenge which Jews have faced since the time of the Ge’onim and Rishonim. Netziv in Teshuvot Meishiv Davar (4:75) dealt with such a case in the late nineteenth century. Rav Moshe Feinstein in Teshuvot Igrot Moshe (Even Ha’Ezer Cheilek 4 Siman 121) ruled on a case that came before him in 1981. Rav Yonah Reiss, Av Beis Din of the Chicago Rabbinical Council, informed me in Noovember 2018 that he was then dealing with such a case in the Midwest as well.
The Basic Issue
The Mordechai (Yevamot 4:28-29) and Tur (Even Ha’Ezer Siman 157) cites a dispute among the Ge’onim as to whether an Ach Mumar is Zokeik (obligates) his sister-in-law for Yibbum. Rav Sherira Ga’on rules that it does, whereas Rav Yehuda’i Ga’on (the famous BeHaG, Ba’al Halachot Gedolot, according to many) rules that an Ach Mumar is not Zokeik LeYibum. Rav Ye’hudai Ga’on, however, does not offer a reason for his opinion. Eight explanations have been offered for his approach, as we shall outline.
Shulchan Aruch (Even Ha’Ezer 157:4) rules that a widow who falls to a Yavam who is a Mumar must receive Chalitzah before she is permitted to remarry despite the existence of a differing opinion. Rama, however, cites a dispute concerning a widow who remarried without Chalitzah thinking that her husband did not have any brothers, and it was later discovered that there is a brother who is a Mumar. One opinion maintains that she does not have to leave her present marriage, whereas others maintain that Chalitzah is still required.
The Ba’eir Heitev (Even Ha’Ezer Siman 157) cites Teshuvot Radach who permits a Yevamah who is Zekukah to an Ach Meshumad to remarry if she is unable to obtain Chalitzah due to the Ach Meshumad living a great distance from her. On the other hand, Aruch HaShulchan (Even Ha’Ezer Siman 157) strongly rules against following Rav Yehuda’i Ga’on and the Radach.
Explaining the Three Way Machaloket as to whether a Mumar is Zokeik
Teshuvot Mahari Mintz (number 12; cited by Rama in the Darkei Moshe to Even Ha’Ezer 157) presents the three basic approaches articulated by the Ge’onim as to the status of an Ach Mumar whether he is Zokeik LeYibum. One opinion is that even if the brother was a Jew in good standing at the time of the wedding and became a Mumar after the wedding, then he is not Zokeik LeYibum. Opinion number two is that even if the brother was a Mumar at the time of the wedding until the death of his brother, then he is Zokeik LeYibum. Opinion number three is if the brother was a Mumar at the time of the wedding, then he is not Zokeik, but if he becomes a Mumar only after the wedding, then he is Zokeik. Here is a basic explanation of these Shitot (approaches). Shitah number two holds like Rashi’s Teshuvah that a Mumar remains a Jew. Shitah number one holds that the Mumar has the status of an actual Nochri. Shitah number three holds that even though a Mumar has the status of a Nochri, Nisu’in Mapilin (the Yibum connection is established at the time of the original marriage, according to this opinion) establishes the fact that the Zikah was created at the time of the wedding to the deceased brother and not undone even after the brother’s apostasy.
Introduction to the Opinions that Support and Reject Rav Yehuda’i Ga’on
Or Zaru’a (number 705) cites Rav Nachshon Ga’on, the Ge’onic Sefer Basar Al Gabei Gechalim and other Geonim who agree with Rav Yehuda’i Ga’on. On the other hand, Beit Yosef (Even Ha’Ezer 157) cites Maharik who questions Rav Yehuda’i Ga’on. Maharik goes as far to assert that Rav Yehuda’i Ga’on was blind and his Talmidim quote him inaccurately.
However, Mahari Mintz argues that had Rashi been aware of the many Ge’onim cited by Or Zaru’a who support Rav Yehuda’i Ga’on, he would not have dismissed Rav Yehuda’i Ga’on’s Shitah. We may say similarly about Maharik. Moreover, Beit Yosef presents Rav Yehuda’i Ga’on as explaining Rav Sherira Ga’on, and thus, Rav Sherira Ga’on need not be perceived as rejecting Rav Yehuda’i Ga’on. Rav Sherira Ga’on may have ruled strictly only if the brother was not a Mumar at the time of the wedding. Rav Sherira Ga’on might agree if the brother was a Mumar at the time of the wedding.
Furthermore, Maharam MiRutenberg (number 922; cited in the Mordechai and Beit Yosef) tries to support Rav Yehuda’i Ga’on, as we shall see in reason number seven. However, in the end, Maharam MiRutenberg declined nonetheless to rule against Rashi.
Rambam (Hilchot Yibum VeChalitzah 1:6) writes that even a brother who serves Avodah Zarah is Zokeik LeYibum. This seems to indicate that Rambam subscribes to Rashi’s Machmir stance on this issue. However, Radach argues that Rambam only addresses a situation where the brother also performs some Mitzvot, and for such a stance, we need to be concerned that perhaps he did Teshuvah from his serving Avodah Zarah.
Or Zaru’a posed a serious question on Rav Yehuda’i Ga’on from the Gemara (Yevamot 47b) which states that if a Geir reverts to his former identity and then marries a Jewish woman the Kiddushin takes effect (Kidushav Kiddushin) even though he is a Mumar. There are two answers to this: 1) Perhaps the Gemara speaks only of a Mumar who also observes some Jewish practices. 2) Maybe the Gemara is strict only due to the stringent issue of properly dissolving a marriage in which a potential capital crime looms large. However, marrying a woman without Chalitzah is a less severe prohibition - an Issur Lav (negative prohibition) - and not a capital crime. Thus, we may not be as stringent.
On the other hand, we must note that Beit Yosef and Aruch HaShulchan (Even Ha’Ezer 157:9) both reject the lenient approach in the strongest terms: “It is obvious that this opinion has no basis whatsoever and ‘Oy Lemi SheMeikel BaZeh!’ ‘Woe is to one who is lenient about this matter.’”
These highly unusual strong words give pause to those, such as Netziv, who are inclined to be lenient about this matter. They will be lenient only if there is another reason to be lenient. Such as if there is a Safeik (doubt or possibility) that the Ach Mumar is dead (as in the case with which the Chatam Sofer dealt), or that a sort of questionable Chalitzah is done (such as a Chalitzah performed by a man unable to talk, as in the case with which Netziv dealt). On the other hand, the Encyclopedia Talmudit cites some Poskim (Panim Me’irot and MaHarash Engel) who reject using the lenient approach even as a Senif LeHakeil (component to a lenient ruling).
Next week, God willing, we will complete our discussion by setting forth the debate regarding eight possible reasons to permit the woman who is Zekukah to an Ach Mumar without receiving Chalitzah from her recalcitrant brother-in-law.
 The names have been changed to protect privacy.
 Others identify the BeHaG as Rabi Shimon Kayyara, another Ga’on.