(2013/5773)
Kol Torah is proud to present part two of a three part series by Shmuel Kadosh, an outstanding Talmid Chacham and scholar.
III. Ge’onic Attitudes Regarding Apostates
The Ge’onim (who lived from 600-1000 C.E. in present day Iraq and Iran) employed a variety of strategies to strip the apostate Jew of his or her status. In this section, we will examine the Ge’onim’s view regarding the apostate’s status with respect to four laws: inheritance, Yibum, marriage and the status of children.
A. Inheritance
The laws of inheritance are Biblical (BeMidbar 27:6-11), and a person cannot change the order of inheritance described in the Torah by disinheriting one of his sons (Mishneh Torah Hilchot Nachalot 6:1-2). Rav Natronai Ga’on (9th century, Iraq), the head of the Ge’onic academy in Sura, was asked whether an apostate inherits from his Jewish parent (Teshuvat HaGe’onim Musafiyah, 23). Rav Natronai responded that the apostate lost his Kedushat Yisrael (Jewish sanctity) and is not legally considered a descendant of his Jewish father. He therefore does not inherit.
Rav Natronai reaches this conclusion through the original exegesis of Biblical verses.[1] In Perek 17 of BeReishit, Hashem promises Avraham that He will give the Land of Kena’an to “you and your descendants after you” (BeReishit 17:8). The Ge’onim interpret the term “descendants” to include only those of the Jewish faith, because it is written in the previous Pasuk, “To be for you a God, and for your descendants after you” (17:7). Only those who acknowledge that Hashem is God are considered descendants of Avraham, whereas those that deny Hashem are not considered Avraham’s children. This can also be seen from the promise Hashem made to Avraham that his descendants will be exiled to Egypt, but will then develop into a great nation. Although Avraham had two children, Yishmael and Yitzchak, the promise was only fulfilled through the ‘non-apostate,’ Yitzchak, as it is written, “For Yitzchak shall be called after your name” (BeReishit 21:12). Similarly, although Yitzchak had two children, Hashem’s promise was only fulfilled through Ya’akov (who went to Egypt), and not through Eisav.
B. Yibum (Levirate Marriage)
According to Biblical law, when a man dies without children, his widow is obligated to marry her brother-in-law, the deceased’s brother (Devarim 25:5). The brother-in-law is called the Yavam, the widow is called the Yevamah, and their marriage is referred to as Yibum. If the Yavam does not want to marry the deceased’s widow, he must perform Chalitzah, a ceremony indicating his disinterest in marrying the Yevamah (25:9). Before the brother-in-law performs either Yibum or Chalitzah, the widow is prohibited from remarrying because she is Zekukah LeYavam – attached or committed to her brother-in-law (Mishneh Torah Hilchot Yibum 1:2). The Talmud debates whether this bond between the brother-in-law and widow is created at the time of the original marriage with the deceased, or only at the time of his death (Yevamot 13a).
The Mordechai (Mordechai Ben Hillel (1240-1298), Germany) cites a Ge’onic debate regarding a Yavam who apostatized (Yevamot 107). Both opinions agree that if the Yavam is an apostate at the time that the potential Yibum obligation is created, then the Biblical mandate to perform Yibum or Chalitzah does not apply, because the apostate is not considered a relative of his deceased brother. They disagree only in a case when the potential Yibum obligation is created. The first position holds that it was created at the time of the original marriage, and therefore, if the Yavam apostatized prior to his brother’s marriage, then the Yevamah does not require Yibum or Chalitzah to remarry. In contrast, Rav Chananel (990-1055, Kairouan, Tunisia) holds that the potential Yibum obligation is created at the time of the husband’s death. Therefore, whether the Yavam apostatized before the original marriage or after, as long as he converted before his brother’s death, no Yibum or Chalitzah is required.
In another case, Rav Yosef Ben Isaac Ibn Abitur (10th century, Spain) was asked whether Yibum is required when the husband (as opposed to his brother) is the apostate (Responsa Sha’arei Tzedek III 1:29). Like Rav Natronai’s opinion regarding inheritance, Rav Yosef reaches a decision through the novel interpretation of Biblical verses. The Torah writes that the first child born from a levirate marriage “shall carry on the name of the dead brother” (Devarim 25:6). The apostate husband is not considered the Yavam’s brother, and therefore, neither Yibum nor Chalitzah need be performed.
C. Marriage
In the previous two issues, the consequences of declaring the apostate a gentile are relatively minor. Although both inheritance and Yibum are governed by Torah law, there is no long-term damage done by disinheriting the apostate, or by allowing the Yevamah to remarry without Chalitzah.[2] In contrast, annulling the apostate’s marriage and allowing his wife to remarry without a Get can potentially result in adultery and the creation of Mamzeirim.
Despite these high Halachic stakes, the Ge’onim did not hesitate to invalidate the marriage of an apostate. The Sefer HaIttur (Rav Isaac Ben Abba Mari (12th century), Provence) quotes the “early responsa”[3] as ruling that the marriage of one who habitually violates Shabbat publicly is invalid.[4] (Ittur, Kidushin 78a, Perek 100) Their rationale is that Shabbat is called the symbol of Hashem’s covenant with the Jews (Shemot 31:17), and one who desecrates this symbol breaks the covenant, and is no longer part of Jewish people.[5] The Me’iri (Rav Menachem Me’iri (1249-1316), Provence) quotes a minority view which similarly rules that the marriage of an apostate is invalid, but it relies instead on the Talmud’s revocation of the Jewish status of the Ten Lost Tribes (Yevamot 16b). Just like the Rabbis of the Talmud had the authority to declare the ten tribes gentiles, the Rabbis of the present day have the authority to declare an apostate a gentile, whose marriage to a Jew carries no weight.
D. Status of Children
The Me’iri (Avodah Zarah 26b) rules that although the apostate is a Jew, her children are not. This approach cuts a fine line between the Talmudic precedent and policy. The only unambiguously Halachic Talmudic source regarding apostates, Yevamot 47b, writes that their marriages are valid, and thus, the Me’iri felt compelled to rule consistent with the Talmudic precedent. However, the Talmud’s rule did not encompass the status of the apostate’s children, and therefore, the Me’iri felt free to declare them gentiles. The Me’iri’s approach is also sound policy. Maintaining that Jewish identity passes on indefinitely without any affirmative Jewish identity (in an almost genetic sense) creates an administrative nightmare when determining who is a Jew. As the Talmud already recognized, such an approach creates the possibility that every gentile is of Jewish origin, resulting in myriad Halachic complications. Classifying the offspring of apostates as gentiles solves this problem by cutting off those who have no Jewish identity, even if they have Jewish ethnicity.
IV. Medieval Attitudes Regarding Apostates
Whereas the Ge’onim largely addressed conversion to Islam, Rashi and the other Ashkenazi Rishonim were confronting mass conversions to Christianity in the aftermath of the Crusades. Rashi strongly rejected the Ge’onic rulings regarding apostates and instead affirmed their Jewish status in all the areas that the Ge’onim deemed them gentiles. This view is all the more surprising because Jewish law does not consider Islam to be an idolatrous religion but generally does consider Christianity to be one.[6]
Rashi (Responsa Rashi 164) rules that an apostate does not forfeit his right to inherit his Jewish parent, buttressing his Pesak with the verse in Devarim where Hashem says that Eisav received Mt. Sei’ir as an inheritance. (Devarim 2:5). If Eisav, the archetypical sinner, was not disinherited, than neither is a regular apostate.
Rashi also argues with the Ge’onim’s ruling regarding an apostate’s ability to marry or perform Yibum or Chalitzah. He holds that an apostate is fully Jewish making his marriage valid. Therefore, a Yevamah who is Zekukah LeYavam does require Yibum or Chalitzah. (Responsa Rashi 173). Rashi bases his Pesak on Sanhedrin 44a, which says “even though they sinned, they are still Yisrael,” deriving from this source that Jewish status is irrevocable, regardless of what the individual Jew does to negate that status. As we discussed last week, there are two issues in using this source to prove the irrevocability of Jewish status. First, this source is not Halachah but Aggadah. Second, the sin Achan committed (after which the Talmud is still willing to call him Yisrael) is stealing from consecrated property and not apostasy.
Despite Rashi’s strong affirmation of the apostate’s Jewish identity, some Rishonim still sought to strip the apostate of his Jewish status, while not directly arguing with Rashi. Thus, Ra’avyah (Rav Eliezer Ben Rav Yo’el HaLevi (1140-1220), Germany) writes that even though the apostate is a Jew, he still does not inherit from his parents because the Jewish courts have plenary authority to declare one’s property ownerless, and do so with respect to an apostate’s inheritance (Mordechai on Kidushin).
Similarly, Rav Avraham HaGadol of Regensburg (13th Century, Germany) rules that a Yevamah whose Yavam is an apostate does not require Yibum and likely not Chalitzah (Mordechai Yevamot 108). He bases his ruling on the law that a Jew is forbidden to cohabitate with an idolater. Rav Avraham equates the apostate with the idolater, writing that cohabitating with the apostate “is a forbidden relationship… as is the case with an idolater.” Yibum obviously involves cohabitation, and the Yevamah is not obligated to enter into this sinful relationship. Once Yibum is not required, it is likely that Chalitzah is not as well.
Finally, Rav Samson of Sens (1150-1230, France), a student of Rashi’s grandson (Rabbeinu Tam) and great-grandson (the Ri), holds that we only consider the marriage of an apostate valid as a stringency (Hagahot Mordechai Yevamot 107). He analogizes an apostate’s marriage to the Talmudic case of one who says, “Marry me on the condition that I am a completely righteous” (Kidushin 49b). The Talmud rules that such a marriage may be valid because it is possible that the individual did a complete Teshuvah right before uttering that statement. Similarly, even though we do not otherwise consider the apostate Jewish, it is possible that he repented prior to proposing, and therefore, we consider his marriage valid MeiChumrah.
[1] A unique feature of Ge’onic Pesak is that they often interpret Biblical verses for Halachik purposes although no such interpretation appeared in the Talmud. In contrast, later authorities seldom interpreted Biblical verses legally. It is possible that the Ge’onim did this because they rejected the categorical distinction between themselves and the earlier Talmudic authorities, and saw themselves as the heirs to the Talmudic tradition.
[2] A Yevamah who marries someone other than the Yavam requires a Get
out of doubt, but the offspring of such a union are not considered Mamzeirim. See Yevamot 49b, 92b.
[3] The Provencal scholars maintained the Ge’onic traditions, and it is therefore likely that the “early responsa” quoted by the Sefer HaIttur was Ge’onic. Cf. Rav Isadore Twersky, Rabad of Posquieres: A Twelfth Century Talmudist, 9, 74 (JPS 1980).
[4] In pre-modern times where ritual observance was the communal norm, violating Shabbat publicly was an intentional act of opposition to, and rejection of the Jewish community. As a result, many Halachic texts use the terms Meshumad (apostate) and Mechalel Shabbat BeFarhesya (public Shabbat violater) interchangeably. See, Moti Arad, Mi'chalel Shabbat B'farhesia: Munach Talmudi U'mashma'uto Ha'historit (JTS, 2009). Many authorities note that in modern times, where most of the community does not observe Shabbat, Shabbat violation is no longer the equivalent of apostasy. See e.g., Rav David Tzvi Hoffman, Responsa Melamed LeHo’il Orach Chayim 29 (permitting a public Shabbat violator to lead a Minyan).
[5] This view is cited as a minority opinion in the Tur. (Tur, Even HaEzer 44).
[6] Compare Responsa Rambam 448 (ruling that Islam is a monotheistic religion) with Mishneh Torah Hilchot Avodah Zarah 9:4 (holding that Christianity is an idolatrous religion).