Monday, 8 August 2016

On Cohanim and Converts A Legal Response



The Issue
Restrictions on whom a Cohen may marry form part of a pyramid of marital possibilities for Jews. Normal Jews may marry any Jew. Extra restrictions apply to the Cohen and extra restrictions still apply to the High Priest who is only allowed to marry a virgin (Lev 21:13). The more exalted a person’s Halachic status, the more marital restrictions are placed upon them. An almost identical pyramid of restrictions applies to the issue of coming into contact with the dead,[1] and a similar pyramid of restrictions determines who is allowed to enter where in the Temple. In general this form of increasing restrictions serves as a classically Biblical way of using ritual to carry a religious message. Moreover, at least in theory, I don’t make any claim that there is something unethical or immoral about the prohibition on a cohen marrying a convert, the American constitutional provision that insists that only a person born an American can become President of America is based on a similar sense that, as a matter of theory, our status at birth remains important, even if we change our status in life.

So much for the theory. The problem comes when, in the contemporary world, a male cohen[2] falls in love with a convert or, as is more often the case, a non-Jew who subsequently decides she wants to convert. At the point we, as Masorti Rabbis, meet these couples they have taken a decision to spend the rest of their lives together. They have also, often, been refused a marriage licence by Orthodox B’tei Din and have been placed in a position where they are close to rejecting all, or at least many, forms of traditional Jewish observance and community. There are several possible responses open to a Masorti Rabbi.

i)               Do everything possible to disrupt the relationship in the hope that the newly single Cohen will go on to find a more halachically appropriate spouse.
ii)             Walk away from the couple – what they do is their own business, we will not look to support them.
a.     In the case of a woman who wishes to convert this leaves the Cohen living with a non-Jewish partner and would result in any kids being considered non-Jews.
b.     In the case of a woman who has already converted this leaves the Cohen living with a woman without being married to her.
iii)           In the case of a woman wishing to convert we could accept her application to conversion, but decline to officiate at any chuppah.
iv)            We could accept a candidature for conversion and officiate at the chuppah with joy.

We also need to specify the position that would apply to any children of the marriage.

This is an issue that has attracted some contemporary attention. The Committee on Jewish Law & Standards has passed two responsa on the issue[3] and while both permit members of the Rabbinical Assembly to perform these marriages, they are brief documents and predate the sort of systematic analysis that characterises more recent work. I am however indebted to Klein who identified two key responsa from the Orthodox world. I am also grateful to Rabbi Chaim Weiner who provided me with an unpublished responsum which examines a number of issues relating to the specific role of a Rabbi in this issue.

The Basis of the Prohibition
The key verse on who a cohen may marry is Leviticus 21:7
They shall not take [lo yikchu] a harlotrous and defiled woman [isha zona v’halahah], nor shall they marry one divorced from her husband, for they are holy to their God.

On this verse the early and foundational commentary Torat Cohanim states;
A harlotrous and defiled woman: The Sages say a convert is the harlot that is mentioned here [ain zona ele giyoret][4]

In the parallel Talmudic discussion, BT Kiddushin 78a we find the following;
It was taught, Rabbi Shimon Bar Yochai said, ‘A woman who converted aged less than three years and a day is eligible to marry a cohen, as it is said [in the context of a battle against the Midianites, ‘kill every boy and every woman that has known man by lying with him,] but all the young women, who have not known a man by lying with him, keep alive for yourselves (Num 31:17&18). And wasn’t Pinchas [a cohen] among them!
            But the Rabbis said, keep them alive for yourselves means as slaves.

Shimon Bar Yochai understands this verse to permit anyone in Israel (including cohanim) to marry a virgin Midianite who (to put it anachronistically) subsequently converts. He argues that this must be so since the Biblical verse permits these women to all the people of Israel, seemingly thereby to include Pinchas and other cohanim.
According to the Rabbis however, this verse from Numbers has nothing to do with who a priest may take as a wife, rather who they may take as a slave. Instead, say the Rabbis in the continuation of the Talmudic passage above, the origin of the forbidden nature of this marriage is a verse from Ezekiel;
And no priest shall drink wine, when they enter into the inner court, and they shall not take widows or divorced women for wives [lo yikchu lehem lnashim], but they shall take virgins of the seed of the house of Israel [betulot mi zera yisrael].[5]
Ezekiel 44:22

Rav Yehudah says both parents must be of Jewish seed.
Rabbi Eliezer ben Yaacov says only one parent needs to be of Jewish seed.[6]
Rabbi Yose says the woman must be one who was conceived [using the root form zera] as an Israelite.
Rabbi Shimon bar Yochai says the woman must have entered into puberty [also using the root form zera] as an Israelite. [7]

The major legal codes (while silent on the relative merits of the claims of Rabbis Yehudah and Eliezer ben Yaacov) reject the position of Rabbi Shimon bar Yochai (that a woman who has converted pre-puberty may marry a Cohen) and adopt the position that a convert may not marry a Cohen, even if the conversion took place when the girl was a very young child.[8]

Two Orthodox Responsa
David Tzvi Hoffman d. 1921 came from Romania to lead the Hildesheimer Rabbinical Seminary in Berlin. He is known for an openness to the world of Wissenschaft, academic scholarship, and a willingness to engage with the challenges of modernity, especially around the issue of conversion.

Rav Hoffman[9] examines the case of a non-Jew, married, in civil law, to a Cohen. They have a son who is circumcised, and the woman decides that she wants to convert, marry the father of her child ‘according to the law of Moses & Israel’ and bring up her child as Jewish. [10] Hoffman begins by balancing the relative seriousness of a Cohen either living with a non-Jew or living with a convert. It is hardly a fair fight. The former relationship, in the eyes of Rav Hoffman (citing his father Maharam Shik), is forbidden deoraita – as a matter of Torah law, and its breach is punished by caret – one of the most dramatic punishments in the Rabbinic system. The latter, in Hoffman’s language, and that of his father ‘is not permissible, but only considered as a general prohibition – issur lav.’ On this basis, Hoffman begins by suggesting that converting the woman in order to save the man from caret would ‘certainly be a good thing.’

However, since the Talmud insists that a convert must accept the whole of Torah without exception (Bechorot 30b), it might be thought that converting a woman who wanted to marry a cohen would present a problem since the woman would be converting NOT in order to keep all of Torah. There is a further problem which would apply to a Bet Din which supervised the conversion. They would be acting to allow a sin (the issur lav of allowing the man and woman to live together), and even though this would save the man a greater sin (the caret invoking sin of leaving the man with his non-Jewish partner) there exists a principle that one person should not sin in order to save another from sin. (Shabbat 4a)

From a strict technical perspective, or from a perspective from which Rav Hoffman wishes to protect himself from any suggestion of laxity, Hoffman should clearly turn away from the couple. But he cannot. Hoffman is not a Halachic technocrat and he is prepared to expend ‘spiritual capital’ by engaging in the situation. He finds a technical way of getting round the problems he has identified, but from any kind of objective perspective, it is hardly persuasive. Hoffman states that as long as the woman never explicitly states that she is going to reject the law that prohibits a convert from marrying a cohen she is to be accepted, even in her breach of the law.
Even if we [members of the Bet Din] know that she is going to sin on the matter of this forbidden act, nonetheless for the sake of a repair for the cohen and a repair for his child – taknat hacohen v’taknat zar’o ­– we receive her.

The woman, says Hoffman, should be warned that becoming Jewish results in her, all of a sudden, being held responsible for a range of different obligations that, as a non-Jew, she was not previously obliged to follow, but Hoffman comes close to suggesting that the woman should be told that if she wants to benefit the people Israel, she should be encouraged to convert.

Hoffman also raises the issue of the profanation of God – hillul hashem – if the woman is not to be accepted. If the woman is turned away from her serious wish to convert – even if she would wish to live with or marry a cohen – she could be led to feel that ‘Israel do not care – merachamim – for non Jews.’ This seems so shocking a possibility as to urge Rav Hoffman to action.

But what about a wedding ceremony? Rav Hoffman doesn’t go this far.
Even if we accept her as a convert, we don’t officiate at the wedding with the Cohen … This being the case, it is better that she should live with her husband [baalah] in a civil marriage than there should be a religious ceremony.

In Rav Hoffman’s balancing act the desire to save a Jewish man from caret coupled with the desire to bring the child into the Jewish people outweighs the complexities of accepting for conversion a woman who wants to marry a cohen. But, for him, the desire to bring the Jewish couple under a chuppah, thereby saving the couple from the general issur of living with a partner without kiddushin, does not overweigh his commitment to the obligation that a cohen should not marry a convert. Ad can leshono – this is his perspective on the issue facing us.

Rav Judah Leib Zirelson, d. 1941 was Chairman of the first international conference of Agudas Yisroel, an early religious Zionist and Chief Rabbi of Kishinev – a position that even saw him serve in the Romanian Parliament. He died in a Nazi air attack on the city he served.

The question posed to Zirelson[11] is perhaps even sharper than that facing Rav Hoffman.[12] There is a couple who wish to spend their life together and, with the preparations for the wedding well underway, it emerges that the bride is a convert and the groom a cohen (or more likely someone points out the halachic problem with planned union, this not previously having been realised). The wedding is promptly cancelled and uproar ensues. The author of the question states, ‘what a racket …everyone from the greatest to the smallest [is appalled].’ The questioner reports that the groom threatens, ‘“I will accept baptism in front of everyone and will get married that way for there is no way I will leave my beloved.”’

Zirelson is most anxious to ensure that his response is not to be relied on as a general change in Halachah. ‘This is a one off decree – horat shah – in legislating a case as extreme as this … Do not learn from this any leniency any other issue relating to converts and cohanim. But he is prepared to permit the ceremony.

Zirelson begins by considering a Talmudic passage.
There was a female [heathen] slave in Pumbedita who was being kept for immoral purposes. Abbaye said, ‘If it wasn’t for the fact that Rav Yehudah has said in the name of Shmuel that one who frees a [heathen] slave sins, I would force her master to make a declaration of freedom for her.’
Rabina said, ‘Rav Yehudah would agree [with forcing the master to free her], because of the forbidden nature of what is happening currently [mishum milta d’isura].
Gittin 38a

Sinning (by freeing the slave) in order to prevent others from sinning (by having sexual relationships with the woman), of course raises the problem that confronted Rav Hoffman, namely that a person should not sin in order to merit one’s fellow.[13] Zirelson responds to this by making explicit something that has to be deduced implicitly from Rav Hoffman’s work; namely that this prohibition is not absolute, but rather depends on the relative seriousness of the prevented sin, or, equally, the relative importance of any mitzvah that becomes possible if such a sin is committed. ‘In essence,’ states Zirelson, ‘the thing depends on the greatness of the mitzvahhaikar talui hadavar binyan mitzvah rabah’ Indeed, as Zirelson notes, this is clear from the continuation of the Talmudic passage.
Rav Yehudah has said in the name of Shmuel that one who frees a slave sins… An objection was made since, on one occasion Rabbi Eliezer came into the synagogue and didn’t find ten there, so he immediately freed his slave to make up the ten. [The Rabbis hold] where there is a mitzvah to be performed[14] this is different.
Gittin 38b

In a parallel recounting of the story of Rabbi Eliezer and his slave the Talmud asks,
But isn’t this a case of a mitzvah on the back of a sin – mitzvah habah baveyrah![15] Nonetheless this prohibition does not apply in the case of a mitzvah of the many – mitzvah derabim shani.
Brachot 47b

In attempting to apply this exception to the case of the cohen and his beloved one might, quite legitimately, feel that the case of a single cohen is not one of ‘a mitzvah of the many,’ that said Zirelson is prepared to take a very bold approach to this phrase considering the case of a single individual who has a lifetime’s possibility of fulfilling mitzvot associated with marriage ahead of him as included by this phrase.[16]

Zirelson is as aware as Rav Hoffman of the problem of a good deed being done on the back of a sin, but his weighing up of the relevant issues takes him to a very different place. If, says Zirelson, it is appropriate to override the law against freeing a heathen slave in order to allow nine people to be able to pray as a minyan on a one-off basis, then how much the more so it is correct for a wedding to go ahead that would allow the cohen and his fiancée to come together in married life.[17]

This is a very bold piece of halachah, using the issue of freeing a slave to overturn a well established halachic principle and one that may be considered a matter of Torah-law - d’oraita (though Zirelson, citing various sources,[18] considers it a Rabbinic proclamation - d’rabanan). I wonder if the Rabbi is moved by the way the codes treat the issue of freeing the slave, even though he does not cite these texts directly.
It is permissible to free a slave in order to do a mitzvah, even a Rabbinic mitzvah such as when there are not ten in the Synagogue… and similar cases. Equally a female slave that the people are treating as a free-for-all – shenehagim bah ha’am minhag hefker – behold she is a stumbling block to sinning so you force the master to free her so she can get married and the stumbling block be removed and similar cases.
Rambam MT Hil Avadim 9:6[19]

The emphasis in the Rambam, particularly in the context of freeing the woman, is on removing a stumbling block that results in immoral behaviour and instead allowing a marriage that brings the possibility of holiness. This seems, precisely, to be the motivation driving Rav Zirelson.

I am reminded of the Talmudic passage about the yeshivah student who is about to bed a prostitute when he is slapped about the face by his own tzitzit. As the student attempts to run off, the prostitute, astounded by his resolve, gets him to write for her the name of his Bet Midrash and heads off to find him again. She arrives and asks Rabbi Hiyya;
‘Rabbi, command me so they will make me a convert’.
‘My child’, he replied; ‘perhaps you have set your eyes on one of the students?’ She took out the note and gave it to him.’
He responds ‘Go, enjoy your acquisition’.
And those very bed-clothes which she had spread for him [in the whorehouse] she now spread out for him lawfully.
Menachot 44a

By the standards of any traditional approach to conversion Rabbi Hiyya seems more than a little over-eager and we should not understand this tale as recounting normative halachah on conversion, but it does show the Rabbinic desire to do anything possible to bring an end to harlotrous behaviour, including bending conversion rules and, in the case of Rav Zirelson at least, permitting this wedding. It would be a serious mistake to consider Rav Zirelson abdicates a concern with Halachah, as he rides roughshod over the specific prohibition of a cohen marrying a convert. It is rather that he is anxious to support the institution of marriage and the obligation to ‘be fruitful and multiply,’ moreover he seems to be wishing to avoid losing the cohen as a Jew. He defends Halachah even as he seems to disregard it. That said Zirelson is quite categorical that his leniency in this one-off specific instance should not be relied upon in general. He is minded by the fact that the wedding had already been planned, that the groom is threatening apostasy and by a fear that refusing the wedding would promote anti-semitism in the community who sought his help. We therefore, need to look further for a more general approach.

Converts, Cohanim, Assumptions, Doubt and Probability
The key explanation of the problematic verse Leviticus 18:21 – ‘the convert is the harlot that is mentioned here,’ – is, as stated above, found in the Mishnah. In a Tosafot on that Mishnah[20] the prohibition against marrying a convert is explained.
The reason is that anyone coming from a place of idolatry [shebah min haovdei kokhavim] is steeped in depravity [shutafim bzimah].

This commentary goes on to make the surprising statement that;
A female convert is forbidden [to a Cohen] because of the prohibition of marrying a zonah even if she herself has not acted in a harlotrous manner [af al gav d’lo zintah].

There are two ways to understand this important statement. One is to consider that, in forbidding a convert to marry a cohen, the Rabbis have abandoned any connection to any notion of actual harlotry, rather equating the terms ‘convert’ and ‘harlot’ without any pejorative comment whatsoever. This seems a forced reading and I do not accept it.
A better ‘pshat’ reading is to consider that the Rabbis wished to forbid all converts from marrying cohanim without wishing to defame specifically, any particular convert. Instead, surely, they relied on their belief, that such is the level of depravity in the general non-Jewish world that one ought to assume a pervasive level of harlotry which would make it unsafe to allow any convert to marry a cohen.[21] I wish to engage with this issue in two ways, substantially and technically.

Are Converts ‘Steeped in Depravity’?
From a substantial perspective it seems wholly impossible to treat the contemporary non-Jewish world with the kind of deep rooted revulsion that would lead a person to consider all non Jews ‘steeped in depravity’. Yes there are issues with contemporary sexual mores and norms, but that kind of blanket approach to all converts (even if it was merited in classical times) now rings untrue. In the sort of situation that confronts a Masorti Rabbi – that of being asked to celebrate a wedding of a pre-existing relationship – rejecting the convert as ‘steeped in depravity’ seems particularly bizarre, not least since the bride and groom are, almost by definition, in the same stage of a relationship – one with the other.

Moreover, from a technical perspective, the blanket accusation that all converts are to be considered ‘steeped in depravity’ seems to contradict the command to love the ger – stranger or convert. Maimonides’ letter to Ovadiah the Convert contains our tradition’s most forceful articulation of the point;
You must know the greatness of the obligation that the Torah imposed on us regarding the foreigner: we are commanded to honor and fear one's father and mother; regarding the prophets - to heed them… But, concerning the ger - convert, we are mandated to bear them great love, with the full force of our heart's affection: You must also show love to the foreigner (Deut. 10:19), just as we are bidden to love His name, as it is said: You shall love the L-rd your G-d (Deut. 6:5).

This demand to love comes with a ‘thou shall not’ obligation attached.
One cannot say to a convert, ‘remember the actions of your ancestors.’ As it is written, you shall not wrong or oppress a ger. (Ex22)
Mishnah BM 58b

One wonders what could be a more significant reminder of a person’s foreign-ness and a supposed past of ‘harlotry’ than refusing them marriage.[22]
We are therefore looking at two opposing trends in Halachic thought. One which insists we love and do nothing to hurt the ger. And the other which associates all converts with idolatry and harlotry. To apply Rav Zirelson’s approach we have to weigh up these mutually exclusive approaches. Since the first approach is enforced specifically by the language of the Torah itself some 36 times and since the second is a Rabbinic derivation, based on a verse in the prophetic works and a series of assumptions that cannot be applied in good faith to converts today one might argue that we have enough even at this point to permit the marriage.

Personally I would consider this ‘balancing act’ in itself rather than overturning the tradition in its own right instead sets the bar for any change in approach. We are to bend over backwards to find a way to welcome the convert, but we still need a technical loophole that can be exploited to address the prohibition as it is recorded in our texts.

One possibility emerges from an engagement with the language of the Tosafot which states;
The reason [for prohibiting a cohen from marrying a convert is] that anyone coming from a place of idolatry [shebah min haovdei kokhavim] is steeped in depravity.

Most Rabbis do not consider most converts to come from places of idolatry at all. The major source for the relationship between contemporary non-Jewish religious practice and idolatry or avodah zara is another Tosafot, right at the very beginning of the Talmud’s major treatment of this issue. Here the concern is with avoiding engaging with idol worshippers in the three days before and after their ‘eid’ or religious festival. The problem is particularly severe if one considers Sunday a Christian eid. That would make any business between Jew and non-Jew impossible seven days a week (as the authors of this Tosafot make explicit.) The Rabbis[23] find a way to consider monotheistic religious practice other than Judaism, admittedly ‘a rejection of holiness,’ but nonetheless not really avodah zara. It is a deeply pragmatic worldview, and also articulates an important theological message about Christianity. I would argue that if one is prepared to consider a practicing Christian as not really engaged in avodah zara the same would surely be true of converts who grew up devoid of any religious practice. [24]

A further loophole emerges from an engagement with the notion that the root of the prohibition lies in the requirement that a priest marry only one of the seed of the House of Israel. (Ezekiel 4:22 discussed above). Since the 11th Century it has been clear that the convert is considered a member of the House of Israel. Indeed the convert is considered to have the patriarchs Abraham, Isaac and Jacob (Israel) as their own forefathers or progenitors. Again the most forceful articulation of this idea is Maimonides’ letter to Obadiah.
All who embrace Judaism until the end of all generations, and all who profess the unity of the Lord's name as is directed in the Torah, are like pupils of Abraham of blessed memory and are members in his household, all of them; … The result is that Abraham our forefather was the father of his legitimate progeny who follow the path forged by him, and he, too, is father to every ger who converts[25]…For after having entered the Jewish fraternity and accepted Judaism, there is no difference between you and us, and all the miracles that were wrought were wrought for us and for you... There is no distinction or incongruity between you and us in any respect.

In other words if we take Maimonides seriously the convert is considered ‘of the seed of the House of Israel,’ even if they were born and raised as non-Jews. This is a radical rejection of the approach of the classical Rabbinic period, but Maimonides’ statement that, ‘there is no distinction or incongruity between you and us in any respect’ could not be clearer and it is impossible to suggest that the great master somehow forgot about the issue of marriage to a cohen.[26]

Admittedly these are not crushing proofs, and all other things being equal, they would not allow for the overturning of an ancient and well-attested traditional observance. But all other things are not equal. We are, today, particularly mindful of the injustice of applying an assumption of harlotry and pre-existing idol-worship to all converts. We are anxious to strengthen the institution of marriage for those who are living together without the blessings of chuppah and we are particularly anxious to allow Jewish males to find a way to live their lives with their beloved free of any suggestion of ‘marrying out.’ The balance of proof, for a technical solution to our problem, has been set in such a way to welcome any way out of this problematic issue. I hold, therefore, that this provides us with the loophole that allows us to yield to the tremendous tug to ‘love’ and ‘not oppress’ the convert, and thereby officiate at the wedding.

To Celebrate with Joy?
The question of whether this wedding should be celebrated with full joy or with some diminution need not delay us. The houses of Hillel & Shammai debate how to celebrate the wedding of an ugly bride, Shammai wants us to ‘tell it like it is.’ Hillel demands we sing forth of the ‘beauty and grace’ of the bride – the implication being that we should celebrate a bride’s beauty even if she is ugly.[27] Halachah follows Hillel, as does the popular wedding song, ‘How does one dance before the bride – with a voice of delight and a voice of happiness.’ As well as being impractical and unsustainable, it is halachically inappropriate and even cruel, to allow any concerns about the thin ice on which we tread on an issue like this to impair what must be a day of untarnished joy. 

Officiating at the Chuppah – even if one takes the position that the wedding of a convert and a cohen is prohibited.
Rabbi Chaim Weiner, in an unpublished paper on a related issue, notes that the celebrant is in an unusual position. They are not being asked if they approve, as a matter of halachah, of the union of cohanim and those cohanim are forbidden to marry. They are being asked to officiate at a ceremony celebrating the relationship between two people who, at the time of the conversation, are already committed to spending the rest of their lives together.
The question facing the Rabbi in this case is not “Is a Cohen allowed to marry [this person]?” but rather “Should a Rabbi perform this marriage even if it is forbidden?” It is not a question of what is permitted, but rather - what should be done… The marriage will take place anyway. The children will be born anyway. Our refusal to perform the marriage will not prevent a Cohen from marrying a [this person]. Our only achievement will be driving another couple away from us, more alienation, less understanding.
This alone gives sufficient reason in my eyes to perform the marriage. When the only result of enforcing Jewish law is to lose another Jew, when nothing else is achieved, it is preferable to ignore that law in hope that many more will be observed in the future.  I do not say that a Cohen is allowed to marry [this person]. When approached, I advise the candidate of this fact. However, I do not use my position of power to coerce a non-observant Jews to abide by the law. I accept his decision and accept him as a member of my community with love and respect. I do not compromise my own principles. It is not forbidden to perform these marriages - it is forbidden to enter into them.[28] I choose to be lenient in this case because it is a situation in which I cannot win.

If we accept Rabbi Weiner’s argument (and I do) we should officiate at these celebrations even if we are not prepared to consider the marriage of a cohen and a convert sinless.

The Status of the Marriage and any Children
If such a wedding does take place kiddushin tosfin – the marriage holds. This is best illustrated by the clear insistence if, God forbid, there was a falling out in years to come, a get – ritual divorce, would be required.[29]

The child of a cohen and a convert is considered a full Jew, but a halal,[30] and, as such, should not receive first aliyah nor engage in the other rights and responsibilities of a cohen. While there is enough of an opening to allow the marriage, I do not feel the same imperative applies to the issue of the status of any children who are, according to all authorities, recognised as full Jews, with exactly the same rights and responsibilities of all Israelites.

iii) Should a Cohen Who Marries a Convert Still Be Considered a Cohen?
The key text on this is;
A cohen who came to accept the things of priesthood, apart from one thing, we don’t receive him as it says He, among the sons of Aaron, who offers the blood of the peace offerings, and the fat, shall have the right shoulder for his part. This means all the rituals are passed on to the sons of Aaron and any cohen who does not accept this has no part in the priesthood.
Bechorot 30b

Again I would say that while there is room to permit the wedding, it relies on technicalities and is justified only because other issues demand it. I would therefore apply this passage from Bechorot and insist that any cohen married to a convert should step back from the rights and responsibilities of the priesthood, in particular the right to duchen and receive the first aliyah. [31] I acknowledge that this may prove a major emotional wrench for many cohanim but it is an appropriate way of recognising the traditional approach to this issue while still allowing the wedding to be celebrated with joy. While this may be painful it should be noted that any children of the marriage would grow up not to expect, inaccurately, that their father’s role in ritual service would devolve to them. They would grow up seeing their father and mother taking the same role in ritual service that they may grow into themselves.

A Path Not Taken
Some discussions of this issue focus on the issue of ‘the doubtful cohen,’ that is the notion that since we are unsure as whether any presenting Cohen really is the direct patrilineal descendant of Aaron, without any marriage to any person who might result in the children becoming halalim, it is possible to deem a presenting cohen who wants to marry a convert a non-cohen and perform the wedding. I feel uneasy with this approach which comes close to destroying the entire fabric of the cehunah. Deeming, for example, one brother a non-cohen for the sake of his marriage would mean that one ought to deem his other brothers equally non-cohanim. Rather than destroy the institution of the cehuna, it seems more honest and far more preferable to engage with the outmoded, unsustainable and unjust issue of deeming all converts harlots.

Summary & Practical Considerations
  • A candidate for conversion who wishes to convert should not be turned away if she wishes to marry a Cohen.
  • We should officiate at the weddings of cohanim and converts.
  • These weddings should be celebrated with delight and happiness.
  • We take these positions since;
    • When weighing the relative merits and problems involved in a couple living together  as Jew and non-Jew (or even as a Jewish couple outside of marriage) and comparing them to the merits and problems of getting married, or officiating at the marriage, the latter is persuasive.
      • Per Rav Hoffman & Rav Zirelsohn.
    • Performing the wedding removes a great stumbling block to sinning and supports the institution of marriage.
      • See discussion of MT Hil Avadim 9:6 in the context of Zirelson.
    • We consider that walking away from these couples creates a problem in the context of the Torah’s repeated commands to love and not oppress the ger – convert.
      • See discussion of Deut 10 & Ex 22.
    • We reject that contemporary coverts should automatically be considered, in their previous life, ovdei avodah zara – idol worshippers.
      •  See discussion of Tos AZ 2a DHM assur.
    • We reject a contemporary application of the tradition’s blanket assumption of harlotry, applied to all converts.
      • See discussion of Tos Yev 61a DHM v’ein zona in the context of Maimonides’ Letter to Ovadiah.
  • The children of these marriages are considered fully Jewish but ‘mehalalin – the ritual responsibilities and privileges of the priesthood do not apply to them.
  • The husband, once married, should no longer serve as a priest, stepping back from taking first aliyah etc. They are, of course, to be welcomed as a full member of the community in all other respects.

Addendum - Sept ‘08
Recent activity in the Ultra-orthodox community and, especially in the Rabbanut HaReishit in Israel has complicated matters regarding children. I would consider it clear that the children of a convert and a cohen should be recognised as Jewish. In their wisdom the Rabbanut HaReishit have begun to retro-actively deem even conversions under Orthodox auspices invalid is a convert subsequently ‘demonstrated their lack of fidelity to halachah’ by marrying a cohen. In other words according to this (in my opinion) aberrant approach the convert is stripped of her Jewish status by marrying her beloved and children born to the couple are therefore not to be considered Jewish. To be clear this is NOT my approach nor has it been the approach of much contemporary orthodoxy.

Addendum  - Aug '16
I'm enormously grateful to Josh Weiner who passed on this reference to a Ketubah, issued by the Orthodox, United Synagogue, of London (not to be confused with the USCJ), celebrating the marriage of a Cohen and a convert at the Bayswater Synagogue of London!
HaDavar Tzarich Iyun




[1] Normal Jews have no restrictions, cohanim can only ‘profane themselves’ in the case of immediate kinsmen (Lev 21:3) and the High Priest cannot mourn even his own parents (Lev 21:11).
[2] There is no barrier on daughters of cohanim marrying male converts, see Mishnah Sotah 3:7.
[3] The first passed in 1967 is also published in I. Klein Responsa and Halakhic Studies (1975). The second can be found at http://rabbinicalassembly.org/teshuvot/docs/19912000/goodman_marriageconvert.pdf.
[4] See also Mishnah at Yev 61a (references, throughout, to Talmudic tractates are to the Babylonian Talmud).
[5] Underlined emphases throughout are my own.
Note that in Tos Yev 61a DHM v’ein zona this ‘prooftext’ from Ezekiel is dismissed as an asmachata, presumably so that the issur can be considered d’oraita (no proof text beyond the superficially vague,  but penteteuchal Lev 21:7 being considered to provide a more weighty prohibition than a verse from Neviim). The issue of whether the prohibition should be seen as d’oraita or d’rabanan is one we will return to. I will follow Zirelson who assumes it to be d’rabanan, see discussion below.
[6] The biblical verse states zera and not zerai the plural form. Note the case of a woman born to a Jewish father and non-Jewish mother. She would clearly need to come to a Bet Din to convert but, at least according to Rabbi Eliezer Ben Yaacov, would nonetheless be permitted to a cohen.
[7] Reworded to aid clarity.
[8] Rambam MT Issurei Biah 18:3 & Haggahot Maimoniot ad loc., SA EH 6:8.
[9] Melamed L’ho’il 3:8.
[10] Hoffman makes sure that the woman knows that the child cannot be considered Jewish, even though he has been circumcised, he will need to come to Bet Din and mikvah.
[11] Mechkarei Lev 72
[12] Although the scholars were contemporaries it does not appear that either was aware of each other’s responsum.
[13] See above (Shabbat 4a).
[14] In this case the mitzvah of allowing a fully constituted quorum for prayer.
[15] This is a well attested Rabbinic prohibition that prohibits, for example, a person from using a stolen lulav to fulfil the obligation to take a lulav on Shabbat.
[16] Perhaps he wilfully re-interprets the phrase mitzvah derabim not as ‘a mitzvah for many people,’ but rather as ‘many mitzvot.’ But this is neither the ‘pshat’ sense of the Talmudic passage nor is it an comfortable application of grammar.
[17] Zirelson, in his treatment seems to focus less on the sin of an unmarried couple living together and less on any sin that might apply to a celebrant of marriage, and more on the possible mitzvot that marriage allows both the man and woman to celebrate, particularly being fruitful and multiplying, an obligation he acknowledges as a mitzvah rabbah – great.
[18] Including Tos Yevamot 61a DHM zona, Hidushei HaRashba ad loc. Note also that the prooftext is NOT the verse from Leviticus, but Ezekiel.
[19] See also SA YD 267:79 which uses identical terminology.
[20] Yevamot 61a DHM v’ein zona.
[21] The notion of the Rabbis making presumptions based on the pervading majority of a surrounding society has clear precedent. The classic example is of ‘nine stores’ Pes 9b. In a neighbourhood with nine kosher butchers and one butcher who sells treif, any meat found in the street is deemed kosher. The child of a woman who has been raped is considered to have a status dependent on the majority of the men in the town where the abominable action took place (Mishnah Ketubot 1:10). A person arriving at a city on erev Shabbat who sees lights from far off may say the Sabbath blessing over the lights if ‘the majority of inhabitants of the city are Jewish’ Brachot 53a.
[22] Indeed being forbidden marriage is the marker of the clearest instance of Judaism denying a person entry into the community of Israelmamzerut.
[23] Tos AZ 2a DHM assur.
[24] For a similar approach to Islam see Maimonides’ letter to Obadiah who converted from that religion.
[25] Note also the classic nomenclature of a convert - ploni ben avraham avinu – so and so, the son of Abraham our patriarch..
[26] I suppose it is, however, just about conceivable that since there is no prohibition on a male ger marrying a female cohenet he didn’t feel the need to mention this exception to his male correspondent.
[27] Ketubot 16b-17a
[28] This distinction is based on the opinion of Rava, that the transgression is committed on consummation of the marriage, and not by the act of marriage itself. Kiddushin 78a (footnote in the original).
[29] The position of British Orthodox Betei Din on this issue is a little more complex. It might be that if such a wedding was performed by a Masorti rabbi they would not insist on a get deeming the wedding null by dint of the Rabbis who officiated. I suspect they would probably insist on a get, even while rejecting the validity of the marriage, but claim no particular expertise on this specific issue.
[30] Mishnah Kiddushin 3:12
[31] The cohen would take other aliyot and should be considered as a full member of the community in all respects, just not a cohen.

Friday, 29 July 2016

Pinhas and Zealotry Envy

Is it a good or a bad thing to kill a couple, a Jew and a non-Jew who are copulating together in-front of the entire community of Israel?

Actually, don’t bother with that one, it’s not really the question I am interested in.
I’m more interested in this question?

Someone has just gone and done it, just gone and killed the couple, are you relieved, pleased or horrified? Do you puff out a relieved sigh that you are not going to have to work out what to do about such a discomforting event, because someone has one that dirty piece of work for you?

And now the real question I am interested in; forget about Pinhas and Zimri son of Salu and Cozbi daughter of Zur and 600,000 Israelites marching across the wilderness. How do you feel about someone who solves the problems facing you with an act you might feel is too bold, too violent even, but an act that absolves you of the need to work out what to do about other people doing things you don’t disagree with?

Because this is the real question at the heart of the opening of this week’s Torah reading. And, come to mention it the real question at the heart of so much else that is going in the world today.

It’s a question that animates all kinds of movies and comic book series from James Bond to the Suicide Squad; the secret black ops assassin who goes around doing the dirty work so respectable politicians can keep their hands clean. And I think it’s a question that explains much of how w go about our lives. It might even have something to do with recent events in the American political establishment.

David Runciman, a political scientist at Cambridge coined the term ‘dictator envy’[1] to articulate the way in which we look at a complex problem and wish someone strong and powerful would just come along and sort it out. It’s not, said Runciman, that we actually articulate the desire to live in a dictatorship - but we harbour this desire that something would come along and save us the trauma of having to deal with complexity ourselves. We both want a dictator and we live in desperate fear of one. It might be that Runciman, who wrote that several years ago, might be proved wrong in the most important democracy in the world, it might be that enough of the population of that great nation might fancy having a dictatorially minded leader as to leave us all in a very dangerous place.

But let me leave, for a while, the world of the front pages and do some Talmud.
I think you can feel this ambivalence, the attraction and the fear, of the zealot in some of the key Rabbinic passages engaging with the story of Pinhas.[2] In the story itself Pinhas seems to be rewarded for his zealotry with a Brit Shalom, but, fascinatingly the word Shalom is deliberately written in a defective manner in the Torah




shalomopt



It’s the only broken letter in the entire Torah.
As if aware of the extraordinary irony of suggesting peace can come about by shoving spears through bellies.
Or what about the key Talmudic analysis of the story of Pinhas,

Talmud Sanhedrin 82a
Rav Hisda said: If the zealot comes to take counsel [about whether to kill in the case of cohabiting with an idolator], we do not instruct him to do so. What is more, had Zimri forsaken his mistress and Pinhas slain him, Pinhas would have been executed on his account; and had Zimri turned upon Pinhas and slain him, he would not have been executed, since Pinhas was a pursuer [seeking to take his life].

Rabbinically draw the seeming gashbanka of zealotry away from the situation.
Because we are not people of violence.
We are not people who believe in temper, in zealotry.

Our heroes, as Jews, are not men of violence.

הלל אומר הוי מתלמידיו של אהרן אוהב שלום ורודף שלום אוהב את הבריות ומקרבן לתורה:[3]
Trans
Hillel’s not advocating being a pushover. But he is advocating never resorting to anger, never resorting to violence.
There is a wonderful story about Hillel in the Talmud
תנו רבנן: לעולם יהא אדם ענוותן כהלל
[4]Our Rabbis taught, a person should be as slow to anger as Hillel.
They tell a story about two people who made a wager. Whoever can make Hillel lose his temper, the other shall give them 400 zuzim.
[and that was when 400 zuzim was a lot of money, you could buy a baby goat for 2 zuzim]
It was the eve of Shabbat and Hillel was washing his hair the man passed by the door of his house and called out ‘Is Hillel here, is Hillel here.’
Hillel got dressed and went out to speak with him.
‘My son, what do you want,’
‘I have a question.’
‘Ask your question.’
‘Why are the heads of Babylonians round?’
[you might, rightly, get the sense that this is not the most honestly pressing of questions, on the eve of Shabbat]
But Hillel replies, ‘My son, you have asked a great question – it is because they don’t have skilful midwives.’
The man left and waited and returned and called out
‘Is Hillel here, is Hillel here.’
Hillel got dressed and went out to speak with him.
‘My son, what do you want,’
‘I have a question.’
‘Ask your question.’
 ‘Why are the eyes of the Palmereans bleary?’
And Hillel, with immaculate patience answers and returns to his Shabbat preparations.
And the story repeats itself,
‘Why are the feet of Africans broad?’
And Hillel, with immaculate patience answers and returns to his Shabbat preparations.
The man continues, ‘I’ve so many questions, I’m only concerned that I might anger you.
Hillel gets dressed and sits before the man and says to him, ‘Anything you have to ask, ask.’
The man gives up, ‘Are you Hillel, the one they call Prince of Israel.’
‘Yes’
‘Let there not be many like you, I’ve lost 400 zuz because of you.’

I love that story, as hard as it is to live by.
Especially on the eve of Shabbat.
Because there is that piece of me that, on the eve of Shabbat, as I am trying to get a sermon finished and I get disturbed for the fourteenth time by a child with a question of ... dubious importance, there is a piece of me that wants to feel that the strong response is the right one.
There is a piece of me that wants to feel that it’s OK to react forcibly even to those I love, let alone the stranger.
But it’s not OK.
Here’s the task.
Ben Zoma used to say, who is a hero – the one who conquers their inclination to anger,[5]
Goodness it’s a hard bar to reach.
What with the provocations that life dishes up on a regular basis.
The provocations that come from acts of terror visited on La Promenade des Anglais or the Catholic Church of St Etienne de Rouvray and German wine bars and on the list goes. There are provocations so much more offensive than the daft questions of the man who wagered they could get a response from Hillel. But the response of peace remains the cooler response.
It remains the response that is suppresses that sense we have that it is OK to respond to violence with violence, the response of attempting to build peace through peaceable means is not even better because it is holy, it’s the only logical response that makes sense - if we strike back at those who strike us we all end up blind.

I’ve been Wofgang Ulrik’s biography of Adolf Hitler, who understood exactly the way in which people would get excited by a certain kind of strength and demagoguery, and used, that excitement in the most nefarious way. The theorist of leadership Ronald Heifetz[6] asks this question, in what way is Hitler a bad leader? After all he did, as the saying go, make the trains run on time, and he brought millions of people to a peak of fervour to defend him and even die for him. Heifetz nonetheless considers Hitler’s failings as a leader not simply the failings of lead in the right direction, but a failure to allow the complicated challenges of his time to be addressed honestly and profoundly. Instead Hitler provided ‘illusions of grandeur, internal scapegoats and brought his own nation to eventual disaster.’
Anger, zealotry and the suggestion that complex problems have simple solutions might look attractive at first glance, but they bring no hope, they bully, but they cannot transform a problem into a peaceable future.
A friend of mine, Rabbi Melissa Weintraub, ran a programme bringing Rabbis and Rabbinical students in Jerusalem into the West Bank to meet Palestinians.
One of the exercises she leads involves having all the Jews and the non-Jews stand around in a circle and various statements are read out.
If you agree with the statement that has been read you have to take a step forward.
And then you look at the other people who have also stepped forward
and then you pause and then you step back again.

On one occasion she read out the statement ‘I like vanilla ice cream.’
At this point two people, a Jew and a Palestinian stepped forward.
And they looked at each other, paused and then they stepped back again.
The next statement was, ‘I’ve lost a loved one in this conflict.’
And the same Jew and the same Palestinian stepped forward. And they looked at each other and paused and then they stepped back again.
And in that moment was heroism.
The ability to look another person – maybe a person who represents everything that we find most upsetting, most alarming in the world…
the ability to look that person in the face, pause, and then step back again.
That is what it means to be a hero.
The other kind of heroism, the tough guy heroism of Pinhas is really a failure.
It might be tempting, the fierce response. We might feel it in ourselves, we might wish for someone to come along and be fierce so we don’t have to do that nasty work ourselves.
But these violent responses and these responses which condone violence or are prepared to look the other way when violence is committed in our name, need to be conquered. We need to be ever more deeply sceptical of their possibility, and in doing so commit ourselves ever more to building a world of peace.
Shabbat shalom



[1] https://www.theguardian.com/books/2013/nov/08/trouble-with-democracy-david-runciman
[2] Sanherin 82a
[3] משנה מסכת אבות פרק א משנה יב

[4] TB Shabbat 30b-31a
[5] Avot 4:1
[6] Leadership Without Easy Answers
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