This week, we will discuss an issue regarding which a great rabbi once commented to me that it is the most critical Halachic issue facing the Jewish people today: Is a תינוק שנשבה disqualified from serving as a witness? The rulings of Rav Moshe Feinstein, Rav Waldenberg, Maharsham, Rav Aryeh Grossnass, Rav Zvi Pesach Frank, Rav Yitzchak Herzog, and Rav Chaim David Halevi that Reform marriages are invalid are predicated on the assumption that a non-Orthodox Jew regarded as a תינוק שנשבה is disqualified from serving as a witness. Others, however, question that assumption.
This issue has tremendous ramifications regarding the unity and well-being of the Jewish people. Indeed, the ramifications of a Halachic ruling that a תינוק שנשבה is a kosher witness are enormous. Essentially, it would mean that most marriages conducted by non-Orthodox rabbis have Halachic validity. The problem is (as reported by Dr. Yitzchak Skolnik, director of the Kayama Organization) that statistics indicate that merely 51% of divorced Jewish couples have a Get. As we know, the children born to a woman who has remarried without a Get are Mamzeirim if the woman's first marriage was still Halachically valid when she conceived the new children.
It is therefore with great fear and trepidation that we begin our review of the Halachic literature concerning whether a תינוק שנשבה is a Pasul witness or a kosher one.
Sanhedrin 62b - The Gravediggers' Case
The point of departure of the discussion regarding this issue is a Talmudic passage that appears on Sanhedrin 62b. The Gemara recounts:
A certain group of gravediggers used to bury the dead on the first day of Shavuot [in violation of Halacha]. Rav Papa excommunicated them and pronounced them to be disqualified from serving as witness. Rav Huna, the son of Rav Yehoshua, declared that these gravediggers were Kosher witnesses [despite their violating Torah law]. Rav Papa challenged Rav Yehoshua, "but aren't they רשעים [and should thereby be Pasul witnesses]?" He responded that they think they are performing a Mitzva. He retorted, "but didn't we excommunicate them!" Rav Yehoshua answered that the gravediggers think they were excommunicated to serve as a כפרה (forgiveness) for their actions.
The Halacha posits that anyone designated by Halacha as a Rasha is disqualified to serve as a witness (Shemot 32:1). Thus, anyone who violates a sin whose punishment is מלקות (lashes) is Pasul to serve as a witness (as one who is punished by מלקות is referred to as a Rasha, Devarim 52:2). Similarly, one who deliberately violates a Torah law which is a capital crime or punishable by כרת is a Pasul witness. In addition, one who engages in theft is disqualified from serving as a witness.
However, an exception to this rule exists if the individual does not realize he is sinning as was the situation with the gravediggers. In fact, the Shulchan Aruch (Choshen Mishpat 43:3) codifies the gravediggers case as normative. The Rema thereupon quotes from Teshuvot Rivash (no.113) that "the same exception applies to anyone that it appears that they sinned due to a mistake."
Applications of the Gravediggers Case - Rav Akiva Eiger and Rav Chaim Ozer Grodzinski
A celebrated responsum by Rav Akiva Eiger (no. 69) regarding an application of this rule is cited by Pitchei Teshuva (24:81). Rav Akiva Eiger was asked whether a Kiddushin whose witnesses shaved with a razor was valid. Prima facie, the Kiddushin would appear to be invalid as shaving with a razor is punishable by Malkot and thus the witnesses should be Pasul. Rav Akiva Eiger, however, ruled that the woman is forbidden to remarry without having received a Get since "so many people violate the rule forbidding shaving with a razor, the parties in question do not think they are really in violation of a serious prohibition."
Furthermore, Rav Chaim Ozer Grodzinski (Teshuvot Achiezer 3:52) rules on similar grounds that witnesses who signed a Get in South Africa who kept their shops open on Shabbat (but did do Melacha) were not Pasul witnesses. Rav Chaim Ozer explained that "since they are accustomed [to keeping their stores open on Shabbat] almost all of the people in South Africa did not believe keeping one's store open on Shabbat to be a violation of Shabbat."
Non-Observant Jews - Rav Aharon Walkin vs. Rav Moshe Feinstein
Until now, we have discussed the status of individuals who are generally committed to and observant of Halacha. The question is, though, what about someone who is non-observant of almost all of Halacha due to mistaken beliefs i.e. תינוק שנשבה. We are speaking not of those people who have rejected the Halachic belief system and lifestyle. Rather, we are speaking of people raised in non-observant homes who mistakenly believe that one can be a "good Jew" without being committed to Halacha, and that those who observe Halacha are merely "fundamentalists" or are going beyond the call of duty.
Rav Aharon Walkin (Teshuvot Zekan Aharon I:47), one of the great prewar Poskim in Europe, rules that one may accept testimony from a non-observant Jew. The situation in question was concerning a woman in an Eastern European community who received a letter from members of the Argentinean Jewish community reporting the death of her husband. At that time, there were hardly any members of the Argentinean Jewish community who were observant of Halacha. Among Rav Walkin's reasons to rule that this testimony was acceptable was that if almost all the Jews do not observe Halacha, almost everyone would have the status of תינוק שנשבה and would be acceptable as witnesses. Rav Herzog (Techuka L'Yisrael Al Pi Hatorah 3:232-332) develops this idea as well. It is important to note that in a case of potential Mamzeriut, Rav Herzog along with Rav Zvi Pesach Frank ruled that a Reform marriage was invalid due to the absence of Kosher witnesses (see Teshuvot Lev Aryeh no. 13, addendum to the responsum).
Rav Moshe Feinstein (Igrot Moshe Even Haezer I:28, 4:23:7, and 4:06) definitively asserts that even a תינוק שנשבה is considered disqualified to serve as a witness. Indeed, it is not difficult to distinguish between a non-observant Jew who does not view himself as bound to Halacha and the gravediggers (and its later applications) who were committed to the Halachic system but mistakenly violated some of its tenets. Moreover, it seems exceedingly clear from Shulchan Aruch Choshen Mishpat 43:71 that unless one is committed to keeping Mitzvot he cannot serve as a witness. For further explanation of why even a תינוק שנשבה is unfit to serve as a witness, see Rav Avigdor Neventzall (Rav of the Old City of Jerusalem) quoted in Techumin 31:024, and Rav Avraham Sherman (an eminent Dayan on the Tel Aviv Beit Din), Techumin 81:052.
These authorities would most likely agree that one who is a תינוק שנשבה should be treated with respect and love as we quoted last week from Rav Kook and the Chazon Ish. Nevertheless, until they return to a life of Halachic observance, they are not qualified to serve as witnesses.
Rav Zalman Nechemia Goldberg - Proof From the Karaite Ruling
Rav Zalman Nechemia Goldberg (an eminent Dayan on the Beit Din of Yerushalayim, considered as one of today's leading Halachic authorities) told this author that he believes that there exists a clear proof that a תינוק שנשבה is qualified for serving as a witness. He draws the proof from the ruling of the Rema (E.H. 4:73) that we are forbidden to marry a Karaite or their descendants due to the fact that they are possibly Mamzeirim (ספק ממזר). The concern is that the Karaite's Kiddushin are valid but their Gittin are Pasul. Rav Zalman Nechemia Goldberg reasoned that if a תינוק שנשבה (last week we cited the Rambam who writes that beginning with the second generation of קראים, we may consider them תינוק שנשבה) is a Pasul witness, then why is the Rema concerned that their Kiddushin is valid. It would appear then that the Rema believes that a תינוק שנשבה is a kosher a witness.
I replied to Rav Zalman Nechemia Goldberg that the Teshuvot Radvaz (1:37 and 4:912) ruled that the קראים are not Mamzeirim because their Kiddushin are invalid. It would appear clearly that the Radvaz considers a תינוק שנשבה to be unfit to serve as a witness. Second, one may distinguish between the Rema's ruling and Rav Moshe's ruling. The Rema is addressing the entire community and Rav Moshe is addressing individual cases. In the latter case, one is usually able to investigate thoroughly to see if two kosher witnesses saw the delivery of the ring from the groom to the bride. In the former case, the Rema is addressing the issue of the status of the entire Karaite community which at that point was functioning well over six hundred years. Regarding the קראים it is very possible that at some of the weddings, kosher witnesses saw the delivery of the ring from groom to the bride thereby rendering the wedding ceremony Halachically valid (which occurs at a number of non-Orthodox weddings). Over the years if women subsequent to such marriages, remarried without the benefit of a Get, would have children, they would be considered Mamzeirim. Over the centuries, the chance that this occurred among the קראים was great, thus creating a situation of ספק ממזר for the Karaite community. However, the Rema very well may agree with Rav Moshe's approach if a thorough investigation reveals that no kosher witnesses saw the delivery of the ring from the groom to the bride at a particular wedding ceremony.
An Actual Case
When I spent a month observing the Jerusalem Beit Din in Tammuz 3575, an interesting case came before the Beit Din. A young couple sought a marriage license (matters of personal status are Baruch Hashem under the exclusive control of the Orthodox Rabbinate in Israel). The problem was that the young women's mother had been previously married and had not received a Get. The woman had a document from a prominent New York rav stating that she was not a Mamzeret because her mother's marriage was a Reform ceremony at which no kosher witness was present.
Rav Zalman Nechemia Goldberg was uncertain what to rule in light of the fact that he believed that a תינוק שנשבה is not a Pasul witness. Finally, he consulted his eminent father-in-law, Rav Shlomo Zalman Auerbach zt"l who ruled that the woman should be given a רשיון נישואין, a marriage license, in light of Rav Moshe's ruling. A respected rabbi informed me that Rav Yosef Shlomo Eliashiv (an eminent Posek who resides in Jerusalem) ruled leniently in a similar case that arose in Miami Beach, Florida.
One should understandably make great efforts to ensure that a divorcing couple should receive a kosher Get even if they were not married in an Orthodox ceremony. In case of עגון where a man (or woman) is not being cooperative in giving a Get, a very eminent rav should be consulted for a ruling in the matter.
The issue of the validity of "Conservative marriages" is quite a complex topic. I will, God willing and בלי נדר, treat this topic at length in a forthcoming Hebrew essay. More information regarding this issue can be found in Igrot Moshe E.H. I:531, 4:31, 4:64, and 4:87. The reason for the complexity of this issue is the extremely wide range of practices and beliefs among Conservative rabbis and laypeople.