March 1, 2021

Creative Legal Solutions to Prevent Get-Refusal

By Shanna T. Giora-Gorfajn

Over the past 50 years, laws across the U.S. have evolved to recognize that a person should not be forced to remain in a marriage that is irretrievably broken. But as women in particular have made progress with no-fault divorce and financial independence, religious law has ironically—though perhaps unsurprisingly—gained traction as a way for men to assert power over their would-be ex-wives.

To effect a divorce under Jewish law, the husband must give his wife a get (a religious document of divorce), which can be issued and delivered only with his consent. The classical definition of an agunah (literally, a “chained woman”) described a woman trapped in marriage to a man who could not give her a get—either because he had gone missing or because he lacked capacity to form the requisite intent. Over time, this term has come to also refer to a woman whose husband is purposely obstructing the religious divorce process by withholding a get.

Tomorrow, the day before Purim, is Ta’anit Esther, commemorating the fast declared by Queen Esther—herself a woman chained to an unwanted marriage. Tomorrow we will also observe International Agunah Day, raising awareness of the plight of agunot today and standing together with them in solidarity.

It is also a time to highlight the work of the Boston Agunah TaskForce, a part of HBI’s Project on Gender, Culture, Religion, and the Law. BATF is devoted to research, education, and advocacy for fairness in the Jewish divorce process. We believe that withholding a Jewish divorce is a form of domestic abuse. Together with our allies in the movement on behalf of agunot, we seek to employ a range of remedies to change the culture around get-refusal.

Some use get-refusal as a means to an end, demanding custody or financial concessions before fulfilling the religious requirements. Others seem to engage in this vengeful power play for its own sake, a demonstration of continued control preventing a woman from moving on with her life.

Both men and women can find themselves at the mercy of a recalcitrant spouse. However, there are more dire consequences under Jewish law for women who remain technically bound to dead marriages. A man whose wife refuses to cooperate in receiving a get may seek rabbinic dispensation allowing him to remarry. For a woman, there is no such loophole. Any new relationship with another man would be deemed adulterous. A woman’s status as an agunah is not only a barrier to remarriage; it may also affect the woman’s freedom to begin dating again and the legitimacy of any future children in their religious communities. But there is no simple remedy at civil law; because a Jewish divorce requires the husband’s knowing consent, a court order directing the husband to give a get could be viewed as forcing his hand, rendering the get invalid under Jewish law.

One popular approach has been to encourage couples to sign a binding arbitration agreement  (approved by the Beth Din of America) before they are married, whereby they commit to cooperate in the get process should either party seek a divorce. Despite increasing acceptance among engaged couples, this sort of agreement has not been adopted universally—and it can be of no help where it does not exist.

BATF has engaged in a collaborative effort by rabbis, legal scholars, and practicing attorneys to develop the GetReady initiative—a procedure to be implemented during a divorce, allowing for meaningful enforcement in civil court without invalidating the get under Jewish law. Both parties agree to engage in binding arbitration limited to the issuance, delivery, and acceptance of the get, identifying a mutually acceptable rabbinical court as the arbitration board and committing themselves to completing their roles in the process quickly (ideally within a matter of weeks).  The rabbinical court may then hold back the “receipt” needed to prove a religious divorce until after there is a final judgment in the civil divorce matter.

In most circumstances, tension between the parties will only increase as the case progresses. Therefore, we encourage individuals to raise the issue of the get with their attorneys from the outset, even if get-refusal seems unlikely in their particular situation. It is an unfortunate reality of divorce that even formerly loving spouses can turn aggressive, nasty, or downright unethical as they become entrenched in divorce proceedings.

There is often a window of opportunity when the parties initially separate, as they work together to sort out immediate logistical issues such as weekly parenting schedules or paying bills for the marital home. These things need to get done now, irrespective of how the final settlement will shake out, so the lights stay on and the children know where they will be sleeping next Tuesday night. If that line of communication is open, it’s also a good time to have both parties agree, in writing, to cooperate in the get process as simply another thing that must get done. Addressing the get early on removes the incentive for either party to leverage get-refusal as a weapon in later negotiations. If one party resists making this commitment, that’s a red flag that trouble may be brewing.

Even if the parties intend to negotiate a full divorce agreement in mediation or with the assistance of lawyers, we suggest that they address the get as one of the first steps in that process. They can sign a memorandum of understanding or interim agreement dealing solely with the issuance, delivery, and acceptance of the get. This memorandum should state that both parties intend for it to remain in effect even if negotiations break down and one or the other files for a contested divorce.

Finally, we encourage every divorcing Jewish couple to include a section in their divorce agreement referencing the get, even if they have already resolved this issue to their mutual satisfaction. This acknowledgment helps raise awareness of the get requirement among lawyers and judges. As it becomes more commonplace, we anticipate a somewhat easier road for agunot seeking intervention of the civil courts in their fights.

It is important to find creative solutions and to educate family law attorneys and judges about these issues.  Get-refusal is emotional abuse. Unlike other forms of abuse, however, a judge cannot enter a restraining order to curb this behavior or mitigate its effects.

Through both the Beth Din of America’s arbitration agreement and BATF’s GetReady initiative, couples commit to a fair and equitable religious dissolution of the marriage. The ultimate goal is to reduce emotional abuse in the Jewish community by publicizing and normalizing get-cooperation.

We anticipate that we can help shift community norms through widespread adoption of all these procedures: to commit to equity prior to the marriage; to address issuance of the get early in the divorce process; and to routinely acknowledge the get in divorce agreements. This also shifts the balance of power, by tying the religious divorce process back to a more egalitarian civil process and providing an avenue for enforcement within the court system.

The Boston Agunah Taskforce is proud to be a member of CHEIRUT, a new international network connecting organizations throughout the world whose mission is to help agunot. There’s so much we can accomplish when we work together, most importantly showing agunot that they are not alone—that we “get it.”

Too many of us know women who have gone through traumatic divorces, experienced get-refusal, or received their get only after making steep concessions. On this Agunah Day, please help us amplify support for agunot by using the hashtag #iGETit on social media. Together, we can make a difference!

Shanna T. Giora-Gorfajn, Esq., is the Chair of the Legal Advisory Board for the Boston Agunah Taskforce and an associate at The Wagner Law Group P.C., where her practice focuses on family law and estate planning.

The Boston Agunah Taskforce is funded by a generous grant from the Miriam Fund of CJP and other donors. We welcome donations to support our continued work.

Sukkot: Imagining the Framework for a Better World

By Wendy Amsellem and Mike Moskowitz

This is the week in the Jewish calendar when we shift focus from repentance and introspection into the world of action. We move from the preparations and reflections of Elul, and the fasting and praying on Yom Kippur, to the immediate building of our sukkot. We try hard to live up to the ideals of our newly penitent selves and to persevere in the goals we have recently set. One of the best ways to prevent falling into old patterns and habits is to step away from our familiar structures and systems, and to reposition ourselves anew in the sukkah.

An important step in creating a better society (and sukkah!) is having a clear sense of what we are trying to construct. Sometimes it is hard to imagine the possibilities. When I (Wendy) was a student, Justice Ruth Bader Ginsburg told us that during her first year of law school, in 1956, she and the handful of other women in her class were asked by the law school dean to justify taking the place of a man at Harvard Law School. Justice Ginsberg explained that at that point in her life she had not yet fully discovered her feminism and she was fearful of sounding too aggressive. She told the dean that she had come to law school to better understand her husband’s career and that maybe one day it would lead to a part-time job. When we heard this story, we were deeply moved that Justice Ginsburg herself could not foresee how her career would develop.

In a 2016 essay in the New York Times, Justice Ginsburg reported that school children visiting the Supreme Court often asked her, “Did you always want to be a judge, or more exorbitantly, a Supreme Court justice?”  Ginsburg noted, “To today’s youth, judgeship as an aspiration for a girl is not at all outlandish.” Things which are hard to imagine today can swiftly become commonplace. Justice Ginsburg taught us that it is important to challenge the assumption that the way things have been is itself a justifiable reason for them to continue that way, even if we are not sure what the replacements will be.

As the people of Israel traveled through the wilderness, they also did not know from day to day where they were going. The Babylonian Talmud (Sukkah 11b) explains that we dwell in sukkot to commemorate the “Clouds of Glory/Clouds of Dignity”(annanei hakavod) that protected the Israelites in the wilderness and directed them on their journey. Bavli Taanit (9a) teaches that there were three miracles that God performed for the people of Israel in the desert. God provided the people with water, manna, and clouds of glory. Our rabbis ask why it is only the cloud that merited having a festival or scriptural commandment to remember it?

Rabbi Chaim Yosef David Azulai (1724-1806) explains that the clouds of glory are evidence of God’s special love for us. Food and water are basic necessities, but the clouds of glory provide comfort and honor to people living in a wilderness. Maimonides explains (Laws of Shabbat 2:3) that the laws of the Torah provide mercy, kindness, and peace “רַחֲמִים וְחֶסֶד וְשָׁלוֹם” and so God’s kindness to us in providing clouds of glory is memorialized each year in the commandment to build a sukkah. It is not coincidental that the numerical value of peace (שלום) is the same as the phrase mercy and kindness (רַחֲמִים וְחֶסֶד) because one is dependent on the other. In our evening prayers, we ask that God spread out over us “God’s Sukkah of Peace.” By creating structures that advance dignity and not just survival, we help to build God’s Sukkah of Peace.

The three gifts that God gave the Israelites in the desert are associated with their three leaders (Taanit 9a). The water was provided in the merit of Miriam; the manna in merit of Moshe; and the clouds of glory are in the merit of Aaron. Aaron was a person who valued dignity, peace, and love. According to the rabbis, Aaron was a perennial peacemaker, rushing to settle quarrels and promote affection between spouses, friends, and enemies. We are taught (Avos 1:12) to be disciples of Aaron; love peace, pursue peace, love creations, and bring people closer to the Torah.

The Sukkah then is not only a commemoration of God’s love for us, but also of Aaron’s values of collegiality and peace. As we remember one of our more contemporary leaders, Justice Ruth Bader Ginsburg z”l, we recall that she too valued collegiality and friendship. Justice Ginsburg had clear and strong ideals but she was famous for cultivating warm friendships with colleagues who held dramatically different opinions about law and society.

Aaron, as the Kohen Gadol, also was also instructed to wear garments of honor and dignity, as part of his job description, Exodus 28:2. Aaron used his dignified position not to seek more power for himself, but to pursue peace in the world of action. He was successful in orchestrating resolutions because people felt how deeply he cared about them. Aaron understood that peace, not money or power, was the greatest blessing. The commentators point out that the phrase “good grace” has the same numerical value as “Kohen”, 75, because that is the essence of the priestly role; to extend the divine presence to the people, not to hoard or exploit it.

King Solomon wrote in Proverbs (22:1), “A good name is preferred to wealth, and good grace (chein) is better than silver and gold (נִבְחָ֣ר שֵׁ֭ם מֵעֹ֣שֶׁר רָ֑ב מִכֶּ֥סֶף וּ֝מִזָּהָ֗ב חֵ֣ן טֽוֹב׃). Proverbs reminds us that what we may see as our “permanent” acquisitions are really external to who we are and often quite temporary. There is a false grace that is superficial and fleeting, but the good grace is empowering and instills a sense of responsibility for the greater good to prevent injustice. The first letter of the first four words of the verse which spell “נשמר – to guard”  allude to this.

The Talmud (Bavli Sukkah 2a) tells us that we must leave our permanent houses and move into temporary homes. But later, (Bavli Sukkah 28b) advises us that for the seven days of Sukkot we should make our sukkot into our permanent houses. One way to understand this apparent contradiction is that we must look at socially constructed privileges as temporary and external, and utilize the time in the sukkah to remember that we were dehumanized in Egypt and God reminded us of our worth. The festival of Sukkot is a time to plan for a better model that prioritizes human dignity as essential. Then, we can then make the temporary permanent by disrupting the systems that perpetuate injustice and protections for the entitled at the expense of those who are truly afflicted.

The struggle to take our resources and use them for the greater good is observed by the Talmud in Shabbat 104a through the order of the Hebrew alphabet. “If we do acts of loving kindness to those in need (gimmel and daled) then God (heh and vav) will sustain (zein) and provide good grace (chet tet). The rabbis point out that if we misuse those resources selfishly then it is the root of evil and sin (cheit ‘חט).

Building a more just and equitable society is complicated, difficult work. It requires us to re-examine fundamental assumptions about how our communities work and to be willing to dismantle structures of injustice. The way forward is not always clear, but as we build our sukkot we can begin to imagine setting up the framework of a better world. In his eulogy, Chief Justice John Roberts remembered, “Ruth used to ask, ‘What is the difference between a bookkeeper in Brooklyn and a Supreme Court Justice?’ She would answer: ‘One generation.’” Our actions, to continue the struggle for equality and dignity for all, will make what comes next possible.

May the memory of Ruth Bader Ginsburg be a blessing in that it motivates us to be agents of graceful change.

 

 

Rabbi Wendy Amsellem teaches Talmud and Halakha at Yeshivat Maharat and is the Director of the Beit Midrash Program. (Pronouns: She/Hers)

 

 

 

 

Rabbi Mike Moskowitz is a Scholar-in-Residence in Trans and Queer Jewish Studies at Congregation Beit Simchat Torah in New York. (Pronouns: He/Him)

 

The Second Pandemic: Domestic Violence and Femicide in Israel During Coronavirus

By Tally Kritzman-Amir

(Editor’s note: This is part of an occasional series that examines domestic violence issues in the Coronavirus era).

Coronavirus and the Female Experience

As an Israeli feminist scholar and activist, I read the news about the Coronavirus thinking about the experience of women. Much of what is written about women in the Coronavirus era is obvious to anyone who is interested in gender disparities. Women are more susceptible to overburdening by unpaid or underpaid care jobs, household responsibilities, and children. They risk over-working and paying a toll in terms of their health or mental stability, or losing their paid jobs as they try to balance other responsibilities. They are more likely to be exposed to the pandemic risks as women make up 70% of the global healthcare workers, and less likely to have access to adequate personal protection equipment. Finally, I read the news about a second pandemic of violence against women that accompanies the Coronavirus pandemic. While these concerns are generally applicable to any country, I will focus specifically on Israel.

Since the beginning of 2020, 11 Israeli women were murdered by their domestic partners, one was critically injured by her husband, and a ten-month old baby was murdered by her father. Six of the women were murdered in the last two months, since the Coronavirus outbreak in Israel. In addition, four more women committed suicide as a result of the domestic violence they had endured since the pandemic outbreak. Several of the women were Palestinian or recent (Jewish and non-Jewish) immigrants to Israel, two populations over-represented in the victims of femicide in Israel both this year and in the past. But, it is not only femicide that we should worry about. Reports indicate that this past April there was a 16 percent increase in the number of reports of incidents of domestic violence and a 30 percent increase in the reports of domestic sexual crimes. Specifically over the period of two weeks between mid-April until the end of April, the number of reports to the welfare ministry of domestic violence quadrupled, in comparison with the first month of the pandemic lockdown. Wizo, Women’s International Zionist Organization, also reported a 40 percent increase in reports of domestic violence of women. For these women, staying at home during the Coronavirus outbreak was not a safety measure. Home was anything but safe or bearable for them, and the circumstances of high pressure and seclusion increased their vulnerability.

The social problem of femicide has become a concern in Israel, increasing in frequency in the last few years. It has been a challenge to frame it as the social problem that it is, rather than an accumulation of private domestic disagreements that derailed. Public campaigns against femicide changed the discourse that way,  leading to the formation of several committees and a designation of tens of millions of dollars that were never actually transferred to any of the governmental offices responsible for preventing femicide and domestic violence. Instead, the most significant allocation of funding is spent on the incarceration of abusive domestic partners, which is an ineffective measure when it is not accompanied by any meaningful measures of rehabilitation. The result is recidivism – 70% of the men are repeatedly detained for acts of abuse, including some of the men who later commit acts of femicide. To a large extent, the policy of Israel regarding femicide was consistent before and during the pandemic. Both times Israel did little or nothing to prevent violence, protect women, and save lives. The only exceptions were the decisions to open an additional shelter for women who are victims of domestic violence during the pandemic, and the to remove some of the abusers (rather than the victim) from their homes to alternative housing. Also consistent with pre-pandemic behaviors was the public response – many were outraged by the frequency of the acts of femicide, and gathered to protest on several occasions and several locations against the acts of femicide and the failure to prevent them despite the pandemic.

Opportunity for Change?

One of the common catch phrases of this pandemic is that “we are all in this together”. Indeed, nothing quite clarifies the mutual dependency of our times more than this pandemic, which requires us all to #stayathome in order to flatten the infection curve and make sure that medical services are not overburdened. At the same time, it is important to acknowledge that the pandemic is no great equalizer, but rather that it stresses and emphasizes pre-existing inequalities and disparities. This is true in Israel and in the United States, with respect to racial and ethnic disparities – but also, as this post highlights, with respect to gender inequalities. Femicide and domestic violence existed before COVID 19, and I shared concerns over the racial and ethnic aspects of it, namely the particular vulnerability of Palestinian and (Jewish and non-Jewish) immigrants to femicide and domestic violence. The pandemic did not detract from this being a crucial, pressing social issue, but instead deteriorated the social conditions that make women more vulnerable. Emergency measures around the pandemic did not  plan to address this vulnerability – either with a general plan against femicide and domestic violence or a specific one for the stressful times of the pandemic, thus more women were victimized.

Clearly there can be nothing good about a pandemic that has caused the suffering and death of hundreds of thousands around the globe. This post is about those who suffered or died during the pandemic outbreak but are not a part of its statistics. I think it is important to think about their experience of domestic violence and femicide which to some extent is attributable to the social conditions  facilitated by the coronavirus. By saying that, I do not want to excuse the perpetrators of the acts of violence. They are responsible for their acts of violence and murder, for which there can be no excuse. But the lockdown created an environment in which the female victims were much more vulnerable, far less likely to be seen or heard by others due to the heightened tensions and minimal social interaction of this time. The isolation created limited abilities to cry out for help.

Many have engaged in discussions over the course of the last few weeks since the outbreak regarding what life in the post-corona times – the “new normal” – will be like. Discussions of the “new normal” sometimes mention the shifts in the work-life balance and the added flexibility that the work from home created as potential structural changes in the labor market from which women can benefit. It is now clear that many of us can work from home, a matter that will potentially make it easier for women to navigate the needs of the domestic unpaid work they do with the requirements of the paid work. This could be an equalizer which could potentially diminish the gender pay gap, in a way that anti-discrimination legislation hasn’t been able to. As we have these important discussions about our emerging new lifestyle, it is important to also note that losing opportunities to informally interact with each other carries a risk for women and may come with under-reporting of violence. Homes are often a place for happiness and intimacy, but for some they are unsafe.

To diminish the social problem of femicide, Israel needs to divert resources to it and make the protection of victims of domestic violence a priority. This requires focusing attention on vulnerable women – Palestinians, newcomers, migrant workers and asylum seekers – women that are generally marginalized in Israeli society, but there also needs to be a lookout for women from more privileged groups. As mentioned above, this priority was already decided a few years ago, but never materialized. In the course of the battle against the Coronavirus, Israel formed a unity government with the largest cabinet to date – 32 ministries, incurring heavy costs to an economy in recession, and requiring budget cuts. In this reality, it is hard to imagine much progress is likely to be made on this front. To the extent that the pandemic is also an opportunity to introduce change, this change is likely to be minor for women victims of domestic violence, and continued efforts of the civil society will be required in order to substantially promote this cause.

 

Dr. Tally Kritzman-Amir is an Israel Institute Visiting Associate Professor, Harvard Department of Sociology, and a Senior Lecturer at the College of Law and Business, Israel. She is a 2018 GCRL Scholar in Residence and an HBI Research Associate. The statistics in the blog are effective up to June 11, 2020. 

Shavuot in a Heightened State of Grace

By Rabbis Wendy Amsellem and Mike Moskowitz

Chen is sometimes hard to describe but we know it when we see it. It is that extra measure of grace that makes a person or an action especially appealing. Chen elevates the ordinary, exceeds our expectations, and inspires us to be more graceful as well.

It is perhaps because grace transcends the natural limitations that it is so difficult to articulate and achieve. In our tradition, the number seven represents the spectrum of the natural order and the cycle of the seven days of creation. From Passover to Shavuot, we count seven weeks, for a total of 49 days. This number seven, multiplied by itself, represents the greatest expression of the essence of nature. But it is only on the next day, the 50th that goes beyond these boundaries, that we are able to receive the Torah.

Like the relationship between our body and soul, the Torah is where the finite meets the infinite. Chen is spelled in Hebrew חן – the numerical value of נ = 50  and ח = 8. Both the number 50 and the number 8 exceed the regular natural order which is based on factors of 7.  Chen is above nature.

Megilat Ruth is replete with acts of chen that break natural assumptions. Ruth and Orpah, the Moabite daughters-in-law of Naomi, escort her on her way back to Bethlehem. Naomi explains that there is no future for the young women there and urges them to return to their parents’ homes in Moab. The word Moab itself has the Hebrew numerical value of 49, indicating that returning there would be the natural thing to do. Orpah makes the reasonable choice to turn back, but Ruth clings to Naomi fiercely, pledging her unswerving loyalty.

Ruth goes beyond what is expected of her, choosing not only Naomi’s company but also her God, her people, and her way of life. In truth, all Jews by choice do this – they break from the assumed rhythms of their lives and embark instead on an extraordinary path of spiritual expansion.

We read Megilat Ruth on Shavuot because Shavuot is about going beyond the letter of the law. On Shavuot, the people of Israel break with their previous patterns of behavior and perform the ultimate elevating act of accepting the Torah. In doing so, they model the kabbalat mitzvot, accepting of commandments, that is traditionally the most essential part of the conversion process.

Boaz also exceeds expectations. As a field owner, he is obligated in the mitzvah of leket, allowing the poor to pick up sheaves dropped by his gleaners. Boaz not only performs the basic mitzvah of leket, but he instructs his workers to drop extra sheaves (Ruth 2:16) so that Ruth can collect them. He takes notice of Ruth, a defenseless stranger, and he speaks kindly to her. Ruth responds to him by asking (Ruth 2:10), “Why have I found chen in your eyes, even though I am a stranger?” Boaz explains that he has heard of her devotion to Naomi and then he blesses Ruth. She responds, (Ruth 2:13) “May I find chen in your eyes sir because you have comforted me and spoken to my heart.”

Ruth understands Boaz’s behavior to be motivated by chen. He is showing her kindness above and beyond expectation. Boaz replies that his acts of chen are directly in response to Ruth’s extraordinary behavior.

Boaz uses Abraham-like language to describe Ruth, saying to her, (Ruth 2:11) “It has been told to me. . .how you left your father, your mother, and the land of your birth to go to a nation that you did not know.” Abraham is the first and most potent example of a person leaving their expected life to go forth on a spiritual journey. By veering from the norm, Abraham is the model for all of his spiritual descendents, converts who leave their former lives to follow the God of Abraham. As Maimonides says in his letter to Ovadiah the Convert, “Whoever converts . . .is counted among the disciples of Abraham our father.”

How does a person make these choices and acquire this state of grace? The Gra (Rabbi Elijah of Vilna, 1720-1797) explains that chen comes from the language of chenam (free). One cannot buy chen. Rather it, like the Torah, is a gift from G-d, for those who choose to exert themselves. By giving freely of ourselves to others and offering more than is expected of us, we emulate G-d and are imbued with Divine grace.

The MidrashTanchuma, a collection of early rabbinic homiletic teachings, observes that in the Book of Ruth, except for eight verses, every verse begins with the Hebrew letter vav. These eight non-vav verses highlight Ruth’s connection to the number eight and her journey to the supernatural. She goes above and beyond the physical, for the sake of the spiritual. Even her name רות, with a numerical value of 606, alludes to this. Ruth chooses to add 606 additional commandments to the basic seven Noahide laws, (the seven commandments given to Noah and his descendants), so that in the end she accepts the 613 commandments of the Torah.

Men are often taught that to be responsible one must respectfully follow the rules, but in truth, it is not nearly enough. Systems are maintained by people continuing to do what people have done and expected in the past. Societal constructions of gender and their roles perpetuate assumptions as norms that actually limit and distort our true purpose and potential. We must expect more if things are ever going to improve.

It is especially challenging to strive for chen because it feels amorphous. Every year Shavuot invites us to re-experience the beyond.  By adopting a stance of generosity and pushing above standard expectations, we can all experience, and emerge from, Shavuot in a heightened state of grace.

Rabbi Wendy Amsellem teaches Talmud and Halakha at Yeshivat Maharat. (Pronouns: she/hers)

 

 

 

Rabbi Mike Moskowitz is a Scholar-in-Residence in Trans and Queer Jewish Studies at Congregation Beit Simchat Torah in New York. (Pronouns: He/Him)

Epidemic-sponsored empowerment: Jewish Feminists and Social Media

By Moria Ran Ben Hai

“They closed shul for minyan, I can’t go to Seder, but guess where I can go? The mikvah! What does that mean? Where do I stand in terms of the value of my life in rabbinic and halachic authority?” asked Ariele Mortkowitz moderator of the “Online Panel Discussion: mikvah and COVID-19” held on April , 2020.

Mortkowitz, founding director of the “SVIVAH” community of Jewish women, raised that loaded question at the end of the panel as a way of asking the more important question. Do the rabbinical authorities consider women when they make halachic laws, especially those related directly to women?

At the end of January, I gave a talk at HBI about the role of Facebook in modern Orthodox feminism in Israel. I concluded that social media gives women a stage and power, creating social structures of knowledge and new hierarchies in religious society that differ from the traditional gender-knowledge hierarchies. At the time, I did not think that we would reach the current COVID-19 crisis. But, now I see that the crisis has both strengthened the social media platform for women while actively undermining the Jewish legal hierarchy in Israel and abroad.

The COVID-19 epidemic brings challenges for observant halachic couples and families —  one of them is keeping family purity. Should a woman go the mikvah at the end of her monthly period, and allow the couple’s romantic and sexual closeness, or should she postpone the ritual until the epidemic ends?

To make this decision, there are many issues to consider. Is this an essential need? Is there a safe halachic alternative? Can we create one? How can we make sure women do not get exposed to the virus inside the mikvah, or on the way there and back home? What will happen if governments forbid the mikvahs from opening? Who has the authority to decide how to guide families if the mikvahs close?

One answer is clear. Both the Chief Rabbinate of Israel, allegedly representing the Orthodox halachic establishment in Israel and abroad, (as argued in Hebrew in Unbuttoned – The Disputes That Split Religious Zionism, 2019, by Yair Ettinger) and the Rabbinical Council of America (RCA) have decided that women should immerse as usual, but with adherence to the social distance guidelines and frequent disinfection of the site. They chose an approach that continues the Jewish family purity tradition of thousands of years.

Female halachic consultants (yoatzot halacha), doctors, and Orthodox feminist activists provide more nuanced answers. Some are actively fighting to stop the monthly immersion. They want to prevent women who use the mikvah and mikvah attendants from being infected with the virus and potentially spreading the virus to their families and the public.

Interestingly, there is a new category emerging from the fray — that is the grassroots groups of women on social media. Modern Orthodox women in Israel have formed several Facebook groups, with titles like,  “Immersed in leisurely women” (“Tovlot Be’nakhat” in Hebrew), “I am a religious feminist and I also don’t have a sense of humor”, and “Halachic feminists.” Though some of the Facebook groups existed before the COVID-19 crisis, they are all expressing outrage on the social platform about the mikvah rules during a pandemic.

In long discussions about religious obligations in times of life-threatening virus, their rage includes themes of adherence to a spouses’ remoteness required by Orthodox Jewish law and the power of the rabbinical establishment over the public in Israel and abroad. Efrat Tamir of the public group, “I am a religious feminist, and I also don’t have a sense of humor” wrote on March 22, in what seemed to be a cynical comment that I translated from Hebrew,  “Of course that the generation’s decisors will order that we must have to continue to immerse in the mikvah. After all, they have been pumping us for years that thanks to righteous women, we got redeemed from Egypt. So Corona? A small task for us. Go ahead, righteous women. Go ahead and immerse in the mikvah near your home. Endanger yourself and your children. Your parents and the general population will come into contact with you. And save the people of Israel from the Corona.”

Some express the opposite view. On the same day, in the private group, “Halachic feminists,” one woman responded to several days of viewpoints against immersion, and wrote in favor of the use of public mikvahs, even with the risks involved. She gave me permission to use and translate her comment, as she still stands by it.  “You know what, if God forbid I would catch the Corona, I would rather be proud and happy that I went to the mikvah. I do it with my head up and with immense pride!”

A significant and practical result of the discussion’s application in Israel is the manifesto of Rabbanit Sarah Segal Katz and Rabbanit M.D. Hanna Adler Lazarovich, in which they state that the mikvahs should be closed for now. They explain that with no coordination between the Ministry of Health and the Ministry of Religious Services regarding the supervision of the mikvahs, the sole responsibility then falls to the balanit (mikvah attendants).  And, because there is no supervision of the sanitation of the mikvahs, the situation poses a real danger to the public. Therefore, women shall not come to immerse.

There is a similar discourse in the United States. In several Facebook groups that started in the U.S., but include voices from around the world, including “Rising tide,” “I’m also fed up with the way women are treated in Orthodoxy,” and “Halachic/Religious Discussion Group for Women,” members expressed frustration. Sarah Bronzite, a member of “I’m also fed up with the way women are treated in Orthodoxy” wrote on March 14,  “… and yet, even in these unprecedented times, the one area of practice that is not cancelled (unless a person has symptoms) is … mikvah. why? WHY? Why can rabbonim make exceptions for everything else except this? Why does a youth leader get to stay at home but not a balanit? Why can rabbonim paskin (decide) that it is no longer ok for ten men to daven in a room together (even with space between them) but married menstruating women are still required to go to a place where by definition there are lots of shared surfaces? Why is it not a reasonable thing to ask the WOMEN THEMSELVES to make a judgment call and not go to mikvah if they would rather avoid the risk? “

The global debate led to widespread awareness, but not to unequivocal statements like the Israeli debate. However, many women online are demanding something safer. This post received dozens of comments including a call for vital practical information. In comments, one person asked directly,  about an alternative, wondering if rabbis can just permit sexual relations without mikvah at this time? Or maybe allow the use piped water in home baths?

JOFA (the Jewish Orthodox Feminist Alliance) posted Rabba Dr. Carmella Abraham’s article on their Facebook page, highlighting her conclusion.  “Let us consider other safe halakhic options for those in need (for example, women experiencing fertility issues) until we can safely reopen our mikvaot. Shutting down our mikvaot in the face of the coming peak may be the most responsible and urgent communal response necessary for this moment.”

It is one of the only authoritative statements in American Orthodox feminist groups on social media, and it is based on the Israeli Manifesto. In fact, in these groups, we can find many reports on what is going on in Israel regarding the mikvahs, but in the Israeli groups, I have not seen similar reports from other countries. This is probably because Israel is the country with a national Jewish establishment. The eyes of the Jewish communities around the world are monitoring Israel closely on these issues.

Another halachic solution offered by Israeli religious Facebook groups was home immersing. The detailed halachic ruling of Rabbi Haim Amsalem was brought to the social network by his daughter, Efrat Chocron, and received harsh responses from significant figures in “halachic feminist” groups, such as Rabbait Tirza Kelman. What could have been a practical solution to the problem, turned out to be impractical, as it is not possible in an average home bathtub. Ritual immersion requires non-tap water and full immersion. The controversy around this halachic ruling points to the reasons for the group’s criticism and more importantly, to their deep commitment to halacha.

During these online discussions, activist women in Israel and the U.S. expressed their views in Zoom panels. Both events took place on Sunday, April 1 and were recorded. The similarities and differences between the panels illustrated the relationship between modern Orthodox feminism in Israel and the U.S., a blog for another time.

In addition to the Manifesto, Nishmat’s halacha counselors published their guidelines for all aspects of immersion and family purity on their Facebook page and in various groups, in Hebrew and in English, while continually updating the data according to developments in the Corona reality. They are available for personal counseling, as they have done for the last two decades. Similarly, halachic counselors work locally in Jewish communities abroad.

In recent weeks, Manifesto writers, Segal-Katz and Adler-Lazarovich, together with the Itim Institute, began collecting data from the women and the balaniyut about the mikvahs throughout Israel, checking mainly whether the mikvahs are observing the health guidelines or violating them. They have posted questionnaires on social networks and analysis of the data that accumulates. The information collected is available to all women to enable them to make informed decisions regarding the mikvah.

The bustle of activity around this issue, from questionnaires posted on social media through the publication of Halachic guidance, private counseling and the Manifesto, indicates the direct connection between social networks and activism. The Facebook platform allows women to share with other women and to mobilize, to rebel against institutionalized bodies such as the Chief Rabbinate in Israel or the RCA in the U.S. It shows the possibility of bottom-up growth in practical halachic authority.

This did not occur in a vacuum. It is preceded by phenomena such as female Torah scholarship, the training of female halachic counselors for family purity issues and the entry of social networks to religious audiences. Furthermore, this is not the first time women have harnessed social networks to gain status in the religious sphere. Five years ago, a trial held in the Israeli Supreme Court led to the enactment of the “Mikvahs Law-2016,” allowing more religious freedom for women immersing in the government mikvahs. That struggle was waged mainly on social media and it allowed women to influence the law and practice of halacha together. Now, during a global pandemic, women have chosen to combine medical knowledge, Torah knowledge and public activism. They refuse to be passive or to wait for male halachic rulers to “see” them. Instead, they are acting as rulers of their own for their own. This, ladies and gentlemen, is a real revolution for Orthodoxy.

Moria Ran Ben Hai is a scholar in residence at the Hadassah-Brandeis Institute. Her research examines the journey in Orthodox feminism in Israel and the U.S., looking at both Kolech and JOFA.

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