Responsa

RRR 14-18

Kaddish When Worshiping Alone

It often happens that an older person no longer can come to the synagogue; or, a sick person is confined to the hospital room or to the home. Such people fre quently read the service in the prayerbook. Occasion ally, when it is the yahrzeit of a parent or another close relative, such worshipers wish to say the Kaddish. Is it permissible to say the Kaddish without a quorum (minyan) of the congregation?

Precisely this question was asked of the Chaplaincy Committee of the Jewish Welfare Board during wartime. Soldiers on lonely duty—for example, coast guardsmen patrolling isolated sections of the coast—wished to say Kaddish on the yahrzeit of their parents. The answer that we gave was based upon an analogy between the Kaddish and the Tefillah. We said: “Just as in the case of the Tefillah, it is preferable to say it with the congregation and yet it is permitted to be said silently alone, so the Kaddish, which is primarily part of the congregational response, may also be recited silently alone.” Because it was wartime, we did not go into the full discussion of the propriety of saying Kaddish in personal worship, but were content with this general analogy. It was for that reason that we felt impelled to add that if the soldier or sailor would write to our Committee, giving the name of the relative and the date of ydhrzeit, we would arrange to have Kaddish said in one of our civilian congregations.

Our answer then was perhaps adequate for the special purpose and circumstance, but now that the question comes up in peacetime, it requires closer analysis.

In general, we can say, as we told the inquiring soldier, that Kaddish can be said for the deceased even in the absence of the mourner. This is true especially in our modern congregations where we recite Kaddish together. We all understand that the Kaddish is in honor not only of those mentioned by name, but of the other deceased whose ydhrzeit is being observed by members of the congregation. In addition, if, as in many of our congregations, the name of the departed is read before the Kaddish, then arrangements can be made to have the name commemorated by being included in the list. But even without this, the Kaddish is meant for all the departed kin of the congrega-tion. If, therefore, this shut-in does not say Kaddish at all, he may take it for granted that the Kaddish recited in the congregation that week is in reference also to those whom he would wish to commemorate.

Nevertheless, the very fact that this inquiry has been made indicates that there are some who would like to say Kaddish themselves, even though they cannot attend the services. May they do so?

The law is clear in the Shulchan Aruch that Kaddish is one of those sacred parts of the ritual (Davar She B ‘Kedusha) which cannot be recited with fewer than ten people present. The Shulchan Aruch, in Orah Hayyim 54 : 1, says that we do not say Kaddish except in the presence of ten adult males and that this applies to the Kedusha and to the Borchu. The importance of the minyan for the saying of the Kaddish and so forth can be seen from the rule in Orah Hayyim 55 : 7: namely, that if a person is praying alone in the synagogue, and the others have prayed in unison, they must wait until he is finished so he can participate in the Kedusha and the Kaddish with them. Of course, there are some minor mitigations of the rule requiring a quorum of ten. If, for example, the relevant part of the service was begun with a full minyan and then somebody left, the incomplete minyan can nevertheless recite the Kaddish and the Kedusha and so on. Also, where people have been praying alone as individuals in the synagogue, they may be joined together for a shortened form of the service (Poreys Al Shema) so that they can hear the Kaddish and the Kedusha (see Orah Hayyim 69).

In fact, what seems to be most important about the Kaddish is not even its recitation but the congregational response to its recitation by the leader. The Talmud tells, in Berachos 3a, that when Israel enters the synagogue and responds to the Kaddish with the phrase, “May His great Name be blessed” (Yhay Sh’may Rahba), God Himself nods approval. (See also die statement of Joshua ben Levi in b. Shabbas If, then, a minyan is required specifically for the Kedusha and the Kaddish, and if an important part of the Kaddish is the congregational response, then it would be clearly contrary to the laws and traditions of the service for an individual to recite it when praying alone. People very often prayed alone at home, but when they did, they omitted the Kedusha and the Kaddish; and when, during the w 119 b.)eek of mourning, the mourners could not go to the synagogue and needed to recite the Kaddish, a minyan of friends gathered to make it possible.

Moreover, from the practical point of view, we certainly should not encourage people to recite the Kaddish at home. The Shulchan Aruch tells us (Orah Hayyim 55 : 22) that it is the duty of members of the community to exert pressure upon each other so that there should always be a minyan in the synagogue. There often has been difficulty gathering a regular minyan, especially in the smaller cities. Great effort was expended to make possible the privilege of pub he worship, and it was a frequent enough practice to hire men for a minyan that the law takes cognizance of it (ibid.). Now in modern times the feeling of piety at the yahrzeit date is one of the justifiable motives which urges people to come to public worship. It would surely not be for the good of Judaism if we weakened this motivation and allowed the spread of the custom of saying Kaddish on the yahrzeit at home.

Nevertheless, there are certainly special cases which deserve consideration, namely, sick people or aged people, to whom it would be of great consolation if they themselves could say Kaddish in their home worship. Is this in any way possible without encouraging the practice? It is noteworthy that the Orphan’s Kaddish is not the only form of Kaddish recited. The cantor himself recites four forms of Kaddish in the regular traditional worship. Then there is a Kaddish which is not at all part of the public worship, the Kaddish of Scholars (Kaddish di Rabbanon). After the day’s study was completed, the scholars present recited the Kaddish.

How many scholars need to be present to permit the recitation of this Scholar’s Kaddish? Originally it is presumed that it required ten, as with the Kaddish in the services. But soon it was taken for granted that fewer than ten could recite it after their study. Abraham Abele Gom biner (Magen Avraham to Orah Hayyim 69, end of para-graph 4) says that even if two or three have completed their study, they may recite the Kaddish. Judah Greenwald, in his responsa “Zichron Judah” (vol. I, no. 24), cites this with approbation and tells of the famous Hungarian rabbi, Maharam Moses Schick, who, when asked by a single student who had finished his studies whether he might not recite Kaddish alone, insisted that there should be at least two students present.

At all events, it is clear that the requirement of a minyan of ten does not apply to the Kaddish recited after study. If the person in whose behalf the inquiry is made is eager to recite the Kaddish and cannot come to the synagogue, which would be preferable, then let him study a chapter in the Bible and recite the Kaddish after it. Of course, the title Rabbi’s Kaddish indicates that this was meant to follow the study of rabbinical literature, but we need not be quite so strict about it. Incidentally, the form of Kaddish which we use in our Reform service is much closer in text to the Scholar’s Kaddish than to any of the others. Note also that Eliezer Deutsch, of Bonyhad, an authority especially on matters of mourning, says that the Yiskor (memorial prayer on holidays) may be recited by an individual without a minyan (“Duda’ye Ha-Sodeh” 12).

RRR 217-219

Kaddish and the Three Steps Backward

What is the origin and the purpose of the custom of concluding the Kaddish by taking three steps back ward? (From Rabbi Nathan Kaber, Altoona, Pennsylvania)

It is clear that taking three steps backward at the close of the Kaddish while reciting the verse from Job 25 : 2, “He who maketh peace in the high places” (Osay Shalom), is a required practice. The Shulchan Aruch in Orah Hayyim 5 6: 5 says that the reader of the Kaddish before the Borchu must do so. This practice applies to every form of the Kaddish recited by the reader and the form of the Kaddish recited by the orphan. However, the Shulchan Aruch gives no explanation as to why the reader or the orphan must take these three steps backward.

A hint as to the reason is found in the responsa of Israel Isserlein (fourteenth century), “Terumas Ha-deshen” 15. Isserlein discusses the question of the reader taking three steps backward, and during the discussion makes some mention of the similar custom with regard to the close of the Shemoneh Esray, where the worshiper, at the conclusion of the Shemoneh Esray, when he comes to the above verse from Job (Osay Shalom) takes three steps backward. Also, Elijah of Vilna, in his notes to the Shulchan Aruch, com pares the reader’s three steps backward at the close of the Kaddish to the three steps backward taken after the Shemoneh Esray.

Now it is clear that the three steps backward is easily understood as a practice for the formal close of the Shemoneh Esray. The Shemoneh Esray is a standing prayer, during which the worshiper must remain “rooted” in one spot. During the prayer he may (and must) bow at certain times, but must not move from his place. When the Shemoneh Esray is over, he must definitely mark its close by uprooting himself (oker es raglov). Rabbi Alexander in the Talmud (b. Yoma 53b) says that when he “uproots himself,” i.e., moves backward, he makes the greeting of peace, the analogy to a man taking leave from a king, and so forth; that is to say, he steps backward from the Royal Presence and utters the blessing of peace.

Obviously, then, for some reason the stepping backward and the greeting of peace which the Talmud appropriately required for the close of the Shemoneh Esray were transferred by analogy to the conclusion of the Kaddish. Why should this have been done? Baer in his Prayer Book, p. 130, indicates the reason. The true end of the Tefillah for the reader comes after the additional prayers which follow the Shemoneh Esray. Even the Torah reading is deemed to be appended to the Shemoneh Esray. After these appendages are finished, the reader recites the full Kaddish, which is the close of his Shemoneh Esray. In order to make his Shemoneh Esray end with the stepping backward (from the Divine Presence) the custom arose to end that reader’s Kaddish with three steps backward. That this seems to be correct is seen from the fact that the verse from Job, Osay Shalom, is merely a Hebrew parallel to the previous sentence with which the Kaddish already ends, namely, Y’he Sh’lomo Rabba. Why was the Osay Shalom added to the Kaddish when it merely repeats the thought with which the Kaddish already ends? Obviously, the addition of Osay Shalom was to make a complete parallel between the closing of the reader’s Shemoneh Esray, and the closing of the worshiper’s Shemoneh Esray, which already ends that way.

In brief, the answer to the inquiry is that originally the Talmud required the three steps backward and the sentence of peace as an end to the Shemoneh Esray. Then, to give the reader the same sort of impressive ending to his Shemoneh Esray, the sentence Osay Shalom was added to his Kaddish so that he, too, could take three steps backward. From this Kaddish it spread to all other recitations of the Kaddish.

RRR 132-138

Kaddish for Apostates and Gentiles

A woman had resigned from the synagogue and had become a Unitarian. When she died, her sister (who had remained a member of the synagogue) asked whether she should say Kaddish for her. (From Rabbi David Polish, Chicago, Illinois)

The Christian wife of a Jew had died. Should he say Kaddish for her? (From Rabbi Nathan Kaber, Altoona, Pennsylvania)

A widow had a husband who was half-Jewish. He had not been affiliated with any Jewish congregation. Yet he bequeathed his home to the temple. The widow now wants to have her husband’s name included in the congregations Kaddish list. Should this be done? (From Rabbi Norman Diamond, Springfield,Ohio)

Each of these questions has its special complications. With regard to the Unitarian the problem is: What is the Jewish status of this woman? Does the fact that she had joined a Unitarian church make her an apostate? After all, she added no deity to her Jewish belief in the One God. Furthermore, may the fact that she had asked to be buried in a Jewish cemetery indicate repentance of whatever trace of apostasy may have been involved? (For a specific discussion of the status of Jewish-born Unitarians, see supra, responsum 10.)

With regard to the man who was half-Jewish, if it was his mother who was Jewish, then he is fully a Jew, since in mixed marriages the child has the status of the mother. If the mother was Gentile, he is a Gentile.

Behind all these complications there is a clear and basic question: May we say Kaddish for, first, an apostate, or, secondly, for a born Gentile who never was connected with Judaism?

Concerning the apostate, he is involved in special laws with regard to his burial. The laws are derived from the Talmud (in b. Sanhedrin 46c) that relatives should not mourn for those who had been sentenced by the court. This was fixed and developed as a law in the tractate Semachot 2, that we should not concern ourselves with one who “goes aside from the path of the community” (eyn misaskin imohem). This is embodied as law in the Shulchan Aruch, Yore Deah 345 : 5. Of course the question still is: What does it mean when we say we should not be concerned with them? Generally the commentators take it to mean that we do not give them the full ritual, such as standing in the line of mourners, or giving eulogies, and so forth; but even the strict Moses Sofer, of Pressburg, says that nevertheless we must provide a burial place for them in our cemeteries (see his responsum, Yore Deah 341). However, should we say Kaddish for them?

This question, whether we should say Kaddish for them, has its precedent during the time when Marranos were escaping from Spain and there was often a different religious status between the generations in one family. We might combine this question with the clearer question, namely: Should we say Kaddish for a non-Jew, who was not an apostate since he had never been a Jew? This too can be, and is, a practical question. It can come up in the case of a man converted to Judaism whose father remains a non Jew. May the Jewish son say Kaddish for that Gentile father? Let us, therefore, deal with the fundamental problem, beginning first with the question of whether to say Kaddish for an apostate, and then of whether one may say Kaddish for a Gentile.

The question as to apostates, which arose first in the sixteenth century with regard to the Marranos, is itself based upon an older Talmudic precedent.

Rabbi Meir, in the many legends told about him and the famous apostate Elisha ben Abuyah (Asher) in b. Chagiga 15 b , made great effort to redeem the soul of this apostate from Ge-hinnom and to bring him into Paradise. Since the purpose of the Kaddish is the redemption of the father, and since the dictum is quoted in discussions of the Kaddish, “The son brings merit to the father,” therefore the precedent of Rabbi Meir is used in the discussion of whether a Jewish son may do merit, i.e., redeem his apostate father by saying Kaddish for him. This question came as a practical inquiry before Rabbi David Cohen, of the Island of Corfu, in the sixteenth century. In his Responsa (section 30) the situation dealt with was as follows:

A Marrano, escaping from Portugal, never succeeded in reaching a Jewish community. His son, however, was successful and returned to Judaism. Now the father was murdered and died while still a Christian. Should the Jewish son say Kaddish for him? David Cohen says: “In my humble opinion, at a quick glance, it would seem that this matter does not require a scholar to decide it [phrase from b. Baba Metzia 101a, often used when the answer to a question is obvious]. Certainly this mourner, whose father was slain as an apostate, must say Kaddish among the other mourners on the basis of the Talmudic principle (b. Sanhedrin 44a) that even though one has sinned (i.e., the father) he is still a Jew. Note that Achan (Joshua 7) transgressed against the entire Torah, yet even so they called him an Israelite. . . . Clearly, then, a son should do all he can to earn merit for his father, even if his father had been a ‘provocative’ apostate. For behold, Ahaz (the father of Hezekiah) was a provocative idolater and did all the evil things which God hates. Nevertheless, his son Hezekiah dragged his bones [to the grave, as a mark of pennance] in order that he should attain atonement (Pesachim 56a). For this the rabbis praised him. If this would not have done Ahaz any good, Hezekiah would not have done it and the rabbis would not have praised him.”

Moses Isserles, in his commentary, “Darke Moshe” to the Tur (Yore Deah 376), says that a son should say Kaddish for an apostate father, but not if that father died a natural death; only if the father was slain should the child say Kaddish for him, since the slaying was a means to atonement, for the father certainly would have repented before he was slain. Isserles repeats this opinion in his commen-tary to the Shulchan Aruch (same reference). The commentators to the Shulchan Aruch, Taz and Schach, at this point underline Isserles’s limitation that the Kaddish be said only if the father is slain. However, Solomon Eger, son of Akiba Eger, in “Gilion Maharsha,” says that if the deceased apostate has no other mourners, then the one mourner should say Kaddish for him even if he was not slain but died on his bed.

Abraham Teomim (Galician rabbi, end of the nineteenth century) in his responsa “Chesed L’Avrohom,” Tinyana, Yore Deah 84, says that if the father is slain, the son is in duty bound to say Kaddish, but if the father dies on his bed, the son is not in duty bound but he is not prohibited from saying it. And he adds, “There certainly can be no prohibition to utter this praise to the Almighty [i.e., the Kaddish].”

All this applies to an apostate father. But what if the father was bom a Gentile and remained a Gentile? May his Jewish son (who had converted to Judaism) say Kaddish for him? It is possible to take the point of view that the Jewish son should not say Kaddish for the Gentile father. The general description in the Talmud of the relationship of a convert to his Gentile relatives is that they are no longer his relatives at all. “A convert is like a new-born child” (Yevamoth 22a), which means that entering Judaism is like a new birth and all his past life does not (legally) exist. He has no relatives any more. Of course, this general principle added to the respect in which the proselyte was held because it declared that he is not the same person who once was a pagan. Yet the principle could not be applied in the practicalities of daily life. For example, since he is new-born, then his pagan relatives are no longer his relatives. He therefore could legally now marry his sister! Yet the Talmud (ibid.) says that if this were permitted, it would be said that paganism (which he had abandoned) was more sacred or moral than the Judaism he has entered.

The same situation occurs with regard to a proselyte saying Kaddish for his Gentile father. Since by the general Tahnudic principle he is new-born, his Gentile parents are not related to him any more, and therefore he need not say Kaddish for them. Indeed, this is the conclusion to which Maimonides comes (Yad, “Hilchos Avel” II: 3) and from Maimonides it is carried over to the Shulchan Aruch (Yore Deah 374:5).

This background of the law is dealt with by Aaron Walkin, Rabbi of Pinsk-Karlin, in a responsum written in 1933. He believes that in spite of Maimonides’s negative opinion mentioned above, a proselyte may say Kaddish for his Gentile father. He calls attention to the fact that Maimonides himself (in “Hilchos Mamrin” V : 11) says that a proselyte must honor his Gentile father, and gives the same reason which the Talmud (in Yevamoth, ibid.) gave as to marrying his close Gentile kin, namely, that it should not be said that a proselyte has left a more sacred religion than he has entered. Therefore Rabbi Walkin concludes that since Kaddish is an expression of a son’s honoring his deceased father, this proselyte should say Kaddish.

Walkin begins by an argument a fortiori: If a son may say Kaddish for his Jewish-born apostate father who had willfully deserted Judaism, then certainly a proselyte son may say Kaddish for a Gentile father who is naturally following the religion in which he was brought up.

In the Responsa of Abraham Zvi Klein, rabbi in Hungary during the past century (“Beerot Avraham” 11), the author is asked whether we may accept a gift for the synagogue from a Gentile woman. He answers that we may do so. Then he is asked whether we may pray for her, which she had requested. To this his answer is that of course we may, and he gives the following reasons: In the temple in Jerusalem they sacrificed seventy oxen in behalf of the seventy nations. Further, it is accepted by all Israel that the righteous of all nations have a portion in the world to come. In b. Gittin 60a, we learn that for the sake of peace we should visit the sick of Gentiles and bury their dead. When Maimonides records this law in chapter 10 of his “Hilchos Melachim,” he adds: “For the Lord is good to all and His tender mercies are over all His works.” So there is no prohibition against recording her name and her good deed in the Hevra Kaddisha, and we should recite an El Mole Rachamim for her on Yiskor days.

Thus, while there is not very much discussion on this matter in the legal literature, yet whoever discussed the answer is in the affirmative. There may be some opinions in the negative but I have not seen them. It seems clear that, according to the law, you are completely justified (as Rabbi Teomim said) “to utter this praise of God” in honor of a deceased Christian or apostate.

(Based upon the responsum originally written for the Central Conference of American Rabbis Yearbook, Vol. LXVII, 1957.)

RRR 219-221

Menopause

What are the Biblical and Rabbinical references on menopause? (From Rabbi S.E.W. on behalf of Dr. M. G.)

There is, of course, the Biblical reference to Sarah (Genesis 18 : 11): “There had ceased to be with Sarah the way of women.” Unfortunately, none of the Midrashic references to this verse make any comments which deal with this physiological condition. Incidentally, none of the modern Talmudic medical books seems to deal with this condition (Preuss, Greenwald, et cetera).

There is, however, some mention of this in the legal literature. The first reference is in the Mishnah (Niddah I : 5) where the question is asked: What is an old woman? The answer given is: Every woman with whom three regular periods have passed “near her older years.” This last phrase refers to the fact that the Mishnah deals also with a young girl who may miss three periods because she has not yet become regular.

The Talmud (Niddah 9a), discussing this Mishnah, gives a sort of “social” definition of the words, “near her older years.” One rabbi says, “All whom her friends consider old.” The other rabbis say, “All whom people call ‘mother’ and she is not embarrassed at it.” The Tosfos (ad loc.) objects to this on the ground that the definition should not depend upon how she feels (i.e., that she should not resent being generally called “mother”). Therefore, quoting the Jerushalmi, the Tosfos says that it means every woman who should be called old (and misses three periods).

These definitions of menopause are of importance with regard to the laws of uncleanness (Niddah), and so on. Hence they are codified in two references in the Shulchan Aruch. In Yore Deah 184 : 3 there is a discussion of the law that a man must keep from contact with a woman the day before her period; the other reference is that one need not keep away from a young person who has not yet had three successive regular periods—and, then the Shulchan Aruch adds, “So it is with an old woman whose blood has ceased” (i.e., the test is the passing of three periods).

In Yore Deah 189 : 28 the law is more specific. In this section the law deals with the question of irregular periods. It says (28): “So it is with an old woman who has passed three periods and has not seen blood, having grown old. She is to be considered as having ceased to have regularity; and she no longer needs to be concerned (as to ritual cleanliness) with regard to her original date.” See also Isserles, who explains that she (like a young girl) need not be concerned with irregular reappearance of blood. That is to say that after three regular periods have passed, then the occasional irregular reappearance of blood has no significance legally. This opinion is based on Joseph Caro (in “Bes Joseph”) and on Solomon ben Aderet (rabbi in Barcelona, thirteenth century).

A later and fuller statement of the law is found in “Chochmas Adam” 112: 37 (Abraham Danzig, of Vilna, 1747-1820): “An old woman who can be called ‘mother’ in her presence, and she is not ashamed, usually has ceased to have ‘the way of women.’ If three average periods have passed, that is, ninety days, she is to be considered as having ceased to have menstruation. She need no longer have concern for any recurrence that is not regular . . . ,” and so forth.

In general one may sum up the law by saying that a woman who is generally considered old (i.e., by their standards in those days) has the same menstrual status as a young girl. With a young girl, if three, regular, successive periods have not yet occurred, she is not to be considered as having menstrual maturity. So an old woman, if she misses three regular periods, is no longer to be considered as regular.

This is about all there is (or at least all I can find) on this question.

RRR 194-203

Orthodox Aspersions Against Reform Marriages

This problem is involved in the situation which is described in the letter which follows:

“You may be aware that in Great Britain there seems to be now a more or less concentrated attack on the Reform Movement, especially in connection with the acceptance by Orthodox authorities of mar riages conducted in our synagogues. It has gone so far as to cast doubts that Orthodox synagogues would accept such marriages as valid, and it has been inti mated that the Jewish status of children from such marriages may be in question. I speak of marriages among Jewish persons, excluding proselytes.” (From Dr. W. Van der Zyl, Senior Minister of the West London Synagogue, London)

There are certain technical differences between Orthodox and Reform marriages as to witnesses, ketuba, and so forth. Some Orthodox authorities in England have spoken of declaring marriages performed by Liberal or Reform rabbis invalid. Is such a declaration of invalidity justified by the Halacha itself? In general, what is the validity in Orthodox law of marriages in which procedure varies from that which is normally required by Orthodox law?

Orthodox Jewish marriage requires a minyan present at the ceremony, a ketuba and kosher witnesses to the ketuba, kosher witnesses to the declaration of marriage, the giving of the ring, the reciting of the seven blessings, and so forth. While all these observances are required, are they indispensable? Suppose a marriage takes place without some of them; what is it in Jewish law which makes a marriage valid?

It must be noted that this question has been an important one and a practical one for many centuries: for example, in the case of the Marranos in Spain and Portugal who escaped to Jewish communities and said they had been married in a church, or in the cases of civil marriage in modern times. Are such marriages valid?

It is true that there is a considerable disagreement as to what is the basic requirement for the validity of a Jewish marriage, but the majority of opinion, which is becoming increasingly weighty in modern times with the spread of civil marriage, is that the validity of the marriage is not dependent at all upon most of these ceremonial or ritual requirements.

The basic marriage requisite is that the man speaks of his intention to be married and gives the woman an object of some value—”he says and he gives.” And, indeed, the basic ground for marriage is that the man takes the woman into his house and they live together in physical relationship. Now, while this Mishnaic method of marriage (biah) was frowned upon in the Middle Ages by Israel Isserlein (“Terumas Ha-deshen” 209), nevertheless when it does occur the general attitude of the law is that such a marriage is valid. This is based upon the opinion of Rav (b. Ketuboth 72b to 73c), that if a man takes a woman into his house for the purpose of marriage, she cannot be freed from that marriage without a formal divorce (i.e., this simple marriage is valid). The opinion of Rav is based upon the belief that a man does not generally intend his sexual relationship to be adulterous (Eyn Adam Oseh, and so on). How ever, this presumption that the sexual relationship is intended as a marriage relationship, and not as an adulterous one, broke down in later years and was no longer held to be valid; as, for example, in the case of certain Marrano marriages about which some authorities said that, since they could have escaped and did not escape, we no longer apply to them the presumption which we grant to righteous people, that their sexual relationship was meant to be a marriage relationship.

However, suppose the couple thus informally married stay together as husband and wife, and this is public knowledge. Then the fact that they are known to live together as husband and wife proves retroactively their original intention, and the presumption (chasdkah) is thus reestablished and their marriage, therefore, is valid. This attitude is increasingly held by Orthodox authorities, namely, that they follow Rav in the Talmud, that the very bringing of the woman into his house constitutes proof of proper intention and therefore of the validity of the marriage. Thus, for example, Isaiah Trani (Riaz), quoted as part of “Shilte Ha Geborim” to Alfasi to Kiddushin 3, says definitely: “Although there are no witnesses of the marriage itself, or even witnesses that they secluded themselves (yichud), nevertheless it is presumed in their locality that they are man and wife. This presumption is equivalent to clear and perfect testimony.”

This, too, is the basis of the famous responsum of Isaac Elchanan Spektor, of Kovno, in his responsa, “Ayn Yitzchok,” vol. I, Even Hoezer 47, especially paragraph 12. He discusses the case of a Jewish soldier who lived with a Jewish woman without formality of marriage, and then the man deserted the woman. Is she married to him or not? Spektor, on the basis of the above-mentioned laws, says that if they were known as man and wife for thirty days in the city where they lived, the marriage is valid and cannot be broken without a get. So also the late Orthodox authority Yechiel Epstein, in “Aruch Ha Shulchan Kiddushin” 26 : 11, says that if a Jew and a Jewess live together and say that their living together is meant to be a marriage—if it is known to all that they live together the marriage cannot be broken except by a get . The most recent authority is Joseph Henkin, of New York. In his “Perushey Ibra,” chapters 3 and 4, he proves the general thesis that if a man takes a woman for the purpose of marriage and they just live together (under that intention) this is an absolutely valid marriage. Their physical relationship (known in the Jewish neighborhood) makes the marriage as valid as if there were all the necessary witnesses. This source (“Perushey Ibra”) gives the fullest discussion of the laws involved. Rabbi Henkin returns to give a briefer statement of the law in an article in Hapardes, vol. XXXIII, no. 10, p. 12, in which he simply says that if a man lives with a woman and the Jews of the neighborhood know it, it is a full marriage.

Of course, the opposite opinion is also held in the law, that such free unions or, for that matter, civil marriages are not Jewishly legal. However, the opinions cited above that such marriages are legal are sufficiently important that they must be given considerable weight and certainly cannot be brushed aside. Furthermore, the tendency of the law among recent Orthodox scholars is to consider such marriages as Jewishly legal (see Abraham Haim Freimann, “Seder Kiddushin,” U’Nissuin, p. 362).

Now let us assume that Reform or Liberal marriages lack many of the observances which Orthodox law considers necessary to marriage, kosher witnesses (i.e., those who do not violate the Sabbath and other ritual observ-ances), a properly written ketubah, and so forth; nevertheless none of these defects can possibly invalidate the marriage, for the couple live together as man and wife in the knowledge of the community. Add to this the fact that in Reform marriages the intention clearly is to be married according to the laws of Moses and Israel as the contracting parties understand it; then even the objection which some scholars made against the Marrano marriages falls to the ground. Here, in Reform marriages, there is the clear intention of marriage, of Jewish marriage. There is also the living together in the knowledge of the community. In that case, the wedding ceremony may be objected to by the Orthodox, but the marriage itself is absolutely valid according to Orthodox law.

This being the case, any Orthodox official who casts doubt on the validity of such marriage is not only callous to human considerations, but ignores the main development and tendency of Orthodox law.

There is a much more serious aspect to the whole question than the technical implications of the Halacha itself. It involves the unity and the integrity of the Jewish people, and also raises the problem of what should be the mutual relationship of Jewish groups who differ from each other in religious matters.

First of all, it must be realized that Jewish legal tradition on marriage is so complicated and is such a melange of laws and customs that it is only too easy to cast aspersions on the validity or at least the propriety of almost any marriage. For instance, the marriages conducted in Orthodox synagogues in the United States and in England have been subject to bitter attack by those who are more extreme in their Orthodoxy or who give special weight to specific customs. As an example, although Maharil, of the fourteenth century in Mainz, conducted marriages in the synagogue, the overwhelming opinion of Orthodox authorities of the last century has been that it is absolutely forbidden to have marriages within the synagogue; they must be conducted elsewhere, preferably out of doors, or at least under an open skylight in order to fulfill Isserles’ suggestion that marriages should be under the stars as a sign of blessing. Most of the marriages taking place in Orthodox synagogues in England and in America are thus open to serious objection.

Then further, modern Orthodox weddings generally take place in the presence of men and women sitting together. This has been strongly denounced by many Orthodox authorities. Some rabbis turn over the task of reciting the seven blessings to some bystander in order not to recite them in a mixed company. What about the witnesses at these Orthodox marriages? Is the rabbi sure that they are valid witnesses, truly kosher witnesses, and not violators of the Sabbath, and so on? (Cf. Chosen Mishpot 34 : 2, 3, 17 ff.) If the mood of belligerence is permitted to hold sway, as it does in some quarters, then perhaps fifty percent of the Orthodox marriages in England and in America can be deemed improper.

In this regard Orthodoxy is indeed more vulnerable than we are, for to Orthodoxy no commandment is minor and all established customs have their importance. Ben Zion Uziel and also Hillel Posek, of Tel Aviv, both bitterly objected to the mood surrounding the breaking of the glass at weddings (“Mishp’tey Uziel” II, Even Hoezer, p. 431; “Omer” Hillel, Even Hoezer 59). But both indicated that they dared not abolish this aged custom. How, then, can Orthodox rabbis permit the modern custom of holding marriages in the synagogue or in the midst of a mixed company of men and women, and with witnesses of dubious eligibility?

Our own attitude to these variations of observances in both Orthodox and Reform Judaism is based on our general attitude to Jewish tradition. We respect the spirit of both Bible and Halacha, but we seek to find this spirit according to our conscience and judgment, rather than to be bound by specific enactment. We ask ourselves, therefore: What is the spirit of Jewish law in relation to variant types of marriage and the families derived from such variant marriages?

To discover the basic mood of Jewish law, it is not sufficient to study one enactment or another; we must cover whole sections of the law to see if there is one prevalent mood, or a tendency toward a certain consistency. Let us consider, for example, an extreme case, the case of the Karaites. These people, unlike ourselves, are a separate sect, a separate community with no communal cooperation or fellowship with the rest of Israel. They reject outright the entire rabbinic tradition. They have been hostile and have been met with hostility since the days of the Gaon Saadia almost down to our day. One would therefore think that this hostile sect, the occasion of so much controversy, would be rejected outright as a potential part of the Jewish people, that their marriages would be declared invalid and that any intermarriage with them would be prohibited unless after conversion. Certainly this would seem to be the case if one merely judges by the statement of Moses Isserles, Even Hoezer IV, section 37, in which he says it is forbidden to enter into marriage with Karaites because all of them are under suspicion of bastardy and we do not even accept them if they wish to return. Actually this statement of Isserles is based upon one opinion, cited by Joseph Caro in his “Bes Joseph” from a responsum of Rabbi Samson. But this opinion of Rabbi Samson is only one opinion. There are contrary opinions of such various shades that the law of the marital status of Karaites is a vast confusion.

The fullest discussion of the question is found in the responsa of Jacob Castro, of Egypt (died 1610), who was greatly honored by Joseph Caro. In his responsa, “Ohaley Ya’acov” 33, he quotes the various opinions of the great authorities on both sides of the question. An analysis of this large and complete responsum-essay will reveal something of the spirit of the Halacha in this regard. It becomes clearly evident that the rabbis on both sides of the question are eager to find some way in which the Karaites might not be rejected. Those rabbis who say that Karaite marriage is not valid conclude from that statement that therefore their wives are not actually wives, that therefore there is no bastardy among them (since in Jewish law a bastard is the offspring of a married woman and a man not her husband), and that therefore we may marry with them. But those rabbis who say that we may not marry with them base it on the interesting ground that there is the suspicion of bastardy since their mothers are married women, inasmuch as Karaite marriages are valid marriages, if not by rabbinic law and custom, at least by Biblical law. In other words, both sides in dealing with this ancient enemy want in some way to continue the bond with them, either by permitting us to marry them or by declaring their marriages Biblically valid.

This reluctance to exclude Jews from the family fellowship of Israel is a basic one in the Halacha. It can be seen still more clearly from the relationship of the law to an apostate, a mumar. A mumar (which would include a public violator of the Sabbath) is ineligible as a witness, cannot be counted to a minyan, and so forth. He loses all his Jewish rights except one basic one, namely, his marital status. “His marriage is marriage and his divorce is divorce.” This inalienable marital and family status of the apostate (whatever else he has lost) has its clearest expression in the responsum of Saadia, cited in “Ozer Ha Gaonim” (Yevamoth, pp. 196-97), in which he says that a man’s status with regard to his trustworthiness as witness, and so on, depends upon his observance of the commandments, but his marriage rights and status depend upon his birth. Saadia ends his statement by saying firmly, “This is the law and one may not change it.” In other words, whether a man is obedient or disobedient to the commandments can never invalidate his marriage and family rights.

This reluctance of Jewish legal tradition to invalidate marriages when such will break up the unity of our people has its august precedent in the relations of the school of Hillel and the school of Shammai to each other. They disagreed as to the permissibility of a certain form of levirate marriage. Then the Mishnah says, after stating the disagreement (m. Yevamoth 1:4); “Although these forbade and those permitted, these declared unfit and those declared eligible, nevertheless, the school of Shammai never hesitated to marry women from the school of Hillel, nor did the school of Hillel hesitate to marry women from the school of Shammai.” Bertenoro, to make the situation unmistakable, says, “Even though, according to the interpretation of one school, the children of the marriages which they prohibited would be deemed mamzerim, the two groups nevertheless intermarried.”

To sum up: If we keep from getting lost in the maze of separate enactments and customs and look for the basic spirit of our Halachic tradition, we find from the days of the schools of Hillel and Shammai, through the Talmudic and Gaonic laws pertaining to apostates, and in all the complicated laws in regard to the hostile sect of Karaites, that the ruling spirit of the tradition was to maintain as much as possible the unity of our people.

Clearly, then, anybody or any group which seeks to declare another group of Jews unfit to marry with according to Jewish law is violating the basic tendency of the law. Even though certain specific requirements can serve to bolster their opinion, they themselves are not free from similar accusations upon the ground of their own violation of certain other enactments.

But the practical question is, How shall we react to those embittered people who, in the heat of controversy, would break the family unity of our people? There is no answer to this. Those who want to exclude will find reasons for it. We may face them, however, in the confidence that they will not succeed. We are part of the Jewish people. We share its destiny. We join in every great Jewish cause. No legalists will succeed in persuading the majority of Jews—Orthodox, Conservative, or Reform—that we must cease marrying one with another. We may leave the decision as to “Who is a Jew?” to the sound instinct of our people, which has expressed itself magnificently in the spirit of the Halacha: “Let the people of Israel alone [they will find their way]. If they are not prophets, they are certainly the children of prophets” (b. Pesachim 66a).

RRR 158-162

Cohen Marrying Daughter of a Mixed Marriage

The daughter of a mixed marriage in which the mother is Jewish and the father Christian wants to be married to a Cohen. The Orthodox rabbi refuses to officiate at the marriage. What is the law and what should be our attitude in this matter? (From Rabbi J. Soetendorp, Amsterdam, Netherlands)

The Shulchan Aruch seems definite on this question, stating (Even Hoezer 7 : 17) that if a non-Jew has relationship with a Jewish woman and a daughter is born from this relationship, the daughter is deemed unfit (p’gumah) for one of the priesthood. Despite this seemingly clear statement, the law has never been definitely settled, as can be noted from the careful choice of the vague adjective “p’gumah” (spoiled or unfit), rather than “asurah” (forbidden). Of course it is clear that a child of a Jewish mother follows the status of the mother and there is, therefore, no objection to her marrying an ordinary Israelite. Also, if the Christian father had been converted to Judaism before the sexual relationship, then the daughter would not be unsuitable even for the priesthood. Evidently the situation that you refer to must be of an irregular sexual relation or of a marriage in which the Christian husband was not converted to Judaism. Otherwise there would be no question at all.

This law as to the girl’s unsuitability as a priest’s wife is not at all definite. As we have noted, all the classic commentators call attention to the vague word p’gumah, and say that this indicates that she is not really asurah, forbidden; therefore, if she is married to a priest, the marriage is quite valid and he is not even asked to divorce her. See Be’er Hetev to the passage, who sums up the classic commentators to the Shulchan Aruch in the way just indicated. Therefore, before deciding our own attitude to the question, it is worthwhile to trace the law to its origin and see whence the uncertainty comes.

The law is based, of course, on Leviticus 21 : 7, in which it says that a priest should not marry a harlot or a chalala, i.e., a woman spoiled for the priesthood. The further definition of the word used here (chalala) is then taken up in the Mishnah (Kiddushin IV : 6-7). Rabbi Judah says that the daughter of a “ger” is to be deemed equal in status to the daughter of a “chalal, ” a profaned priest, and is forbidden to the priesthood. But in the next Mishnah, two rabbis disagree with Judah and come to the general attitude that if a woman’s mother is Jewish, she may marry into the priesthood. The Talmud discusses these opposing Mishnaic opinions, both in the tractate Kiddushin to the Mishnah, but more especially in Yevamoth 45a, where the discussion shows the basis of the dilemma, namely, that some authorities say a child of a mixed marriage is kosher and others say the child is not. The opposing opinions are compromised by saying that the child of a Jewish mother is Jewish and kosher, but unsuitable (p’gumah) for one of the priesthood.

The classic commentators, therefore, take varied attitudes on the status of a child of an unconverted Gentile in relation to marrying a priest. The best summation of the Rishonim is made by Chaim Joseph David Azulai, in his “Birche Josef” (Even Hoezer IV : 13; the Vienna edition erroneously marks it 19). He says that Alfasi is uncertain as to whether she is even p ‘gumah, unfitted as a priest’s wife, and Maimonides is certain that she is fitted for such a status; at which point he adds that Joseph Caro so understands those two authorities in his “Bes Joseph,” at the beginning of paragraph 4 of Tur Even Hoezer. Then Azulai quotes Solomon Luria, the great sixteenth-century Polish authority, that she is not forbidden except “I’chatchillo” i.e., if we have to take the initiative and marry her to a priest, but that if she is already married the marriage is valid. (This quotation is from the Responsa of Solomon Luria, 17.)

So all the later authorities come to about the same conclusion. The marriage is valid if we find the couple already married; the marriage stands. But we avoid taking the initiative, I’chatchillo, to marry them. See, for example, “Chalkas M’chokek” (Moses of Vilna to Even Hoezer 7 :17) and “Bes Shmuel” (Samuel Ben Uri Phoebus to the same passage). Incidentally, in the responsum of Luria quoted, he also says that the Tur considers her kosher to the priesthood, and that he, on the basis of all these doubts, has decided that she is not to be deemed p’gumah except insofar as we would prefer not to marry her, I’chatchillo.

A number of the later authorities discuss the matter. Perhaps the most interesting is Abraham of Sarchow in his large responsa collection, “Avneh Nezer” (Even Hoezer I :15), although the question that he asks is somewhat different. In the case before him, this mixed couple had a son, and later the son had a daughter, and it was this granddaughter of the mixed marriage about whom it is questioned whether or not she may marry a Cohen. He ends up his rather full discussion by saying we should not be strict in this matter (“En I’hachamir ).

The late Isaac Halevi Herzog, Chief Rabbi of the State of Israel, in his new volume of responsa, “Hechal Yitzchok” (Jerusalem, 1960), responsum 16, takes a strict stand in for-bidding a priest to marry the daughter of a mixed mar-riage. However, in the case with which he deals, it was the father who was Jewish and the mother was Gentile. The mother was converted after the birth of the daughter, who now wants to marry the priest. However, on the assump-tion that this child was converted, it then becomes the problem of marrying a priest to a convert.

A dramatic case of a proselyte marrying a priest is described and decided by Judah Leb Zirelsohn, the martyred Rabbi of Kishenev, in his responsa collection, “Ma’arche Leb” 72. A young daughter from a noble family fell in love with a Jew and was converted to Judaism. When the rabbi (Rabbi Naftali Rath, of Rutchuk, Bulgaria) was about to marry them, it was discovered that the young man was a Cohen. Rabbi Rath refused to marry the couple. This created a great storm, bitterness on the part of the boy, anti Jewish anger on the part of the Gentiles. The rabbi, greatly disturbed at the outcome of his strictness, turned to Rabbi Zirelsohn, who reluctantly gave permission for him to marry the couple, but cautioned him to declare that this would not be a precedent.

In both cases cited, that of Rabbi Herzog and of Rabbi Zirelsohn, the girl was born a Gentile. But in the case cited in our question, the child is the daughter of a Jewess, and therefore is Jewish by birth. Taking into account all the various opinions, it is possible to be strict if one wishes to be strict. The Orthodox rabbi did not marry the couple. If he said that it is absolutely forbidden for them to marry, he overstated the case. If he said he “prefers not to marry them,” he is correct. In other words, according to the law, the marriage is valid, but not a preferred marriage.

What, then, should be our attitude to such a marriage? Of course, if the marriage has already taken place, it is absolutely valid, even according to the strictest Orthodox law. The question is what should be our attitude (l’chatchillo), that is, in being willing to take the initiative to officiate at such a nonpreferred marriage? It seems clear that we should not hesitate to officiate. In the first place, on general ethical principles, the Reform movement has long decided that there shall no longer be any distinctions observed between priests, Levites, and Israelites. This ethical decision is bolstered in the Halacha by the fact that actually a priest nowadays is no longer to be considered an actual priest, but a doubtful priest (Cohen Sofek) because his genealogy is no longer carefully kept. This is clearly stated in the “Magen Avraham” (Orah Hayyim IV : 57, note 9). Hence we have no reason to hold onto this law, which is uncertain from its very beginning and throughout its development. Furthermore, there is very little danger that we would arouse ill will by officiating at such a marriage, since it is a perfectly valid marriage and, according to Orthodox law, must be accepted as such.

RRR 73-78

Who Is a Jew?

The security of the State of Israel requires that every citizen carry an identity card recording nationality (or origin) and religious affiliation. This recording of re ligious affiliation has created considerable dispute be tween Orthodox religious leaders and the registration office of the State of Israel. The dispute becomes clear in the case of a child bom of a Jewish father and an unconverted Gentile mother. The parents desire to have this child registered as Jewish. This the State is ready to do, on the ground that religious affiliation is the free choice of the individual and that in the case of an infant the parents, as guardians of the child, may make the choice for the child. However, the re ligious leaders object from the point of view ofOrtho dox law. A child born of an unconverted mother is a Gentile, and a Gentile cannot become a Jew except by specific ceremony, mikveh for a girl, and mikveh and circumcision for a boy. To allow affiliation merely on the basis of choice, as the State proposes, is declared to be a violation of the requirements of Jewish law and would dilute the identity of Jewry as a religious community. What is to be done in this situation? (From The Honorable David Ben-Gurion, former Prime Minister of the State of Israel)

The laws involving the reception of proselytes into Judaism seem on the surface to be absolutely clear and unmistakable. However, this is not entirely the case. As in the case of other laws, also, the emotional attitude of the scholars of the various generations reflects itself in their decisions on this question. When from time to time the rabbis have felt that the circumstances of their day required extra cautionary prohibitions, they applied them and the law becomes stricter. Unfortunately, these restrictive actions tend to become permanent, and the longer the law lasts, the longer do these times of restrictiveness accumulate, and the law grows further and further away from actual life.

The present attitude of the Orthodox rabbinate toward the reception of infant proselytes reveals this tendency toward cumulative restrictiveness. Basically, the law was generous about receiving infants into Judaism. The Talmud (b. Ketuboth ll a ) says simply that the Beth Din may bathe an infant as a proselyte. The discussion following indicates that although the infant cannot be aware of all that is implied in its adherence to Judaism, nevertheless, to accept the child as a Jew is a favor to the child, and we can always do a favor to someone without that person’s knowledge. Furthermore, the Talmud (b. Yevamoth 47b) considers the acceptance of proselytes to be a mitzvah. While it is true that under varying circumstances they disliked accepting proselytes while at other times they were willing to do so, it seems clear that with regard to an infant, whose soul is still pure (see Ketuboth l1 a ), they were always hospitable.

However, about a century ago, a different mood came over Jewish scholars. There was an increasing amount of intermarriage, and many men asked the Jewish community to circumcise the children born of their Gentile wives because they wanted the children to be Jewish. Here a great objection arose. Shalom Kutno wrote a two-volume work, Let the Law Be Obeyed, in which he emphasizes the great dangers to Judaism in accepting such children. On the other hand, the Chief Rabbi of the British Empire indicated that his uncle, Tevele Schiff, permitted the circumcision of such children in California and Australia (i.e., under frontier conditions) and, of course, with the understanding that later, if possible, if the family moved to a more settled place, the child should be taken to the mikveh. A similar mood of friendliness is recorded in the responsa of Marcus Horowitz, the Orthodox Rabbi of Frankfurt, seventy-five years ago (see his “Matteh Levy,” Vol. II). There he finally decides not to be too strict, but to permit such children to be circumcised, however only after exacting the promise that at some future time the Gentile mother will be converted to Judaism. In other words, there is a noticeable difference in attitude, one more receptive and the other more prohibitive.

The fact is that Orthodox law is not objective. There is a large subjective element involved. Although with regard to a child of a Gentile mother even the Shulchan Aruch implies that he should be circumcised, but merely says that he should not be circumcised on the Sabbath (Yore Deah 266 : 13); nevertheless, if the rabbis feel that it is necessary to be strict, they will rely upon the law in the Shulchan Aruch (Yore Deah 334 : 6) where Isserles says that in the case of a man under the ban the court may refuse to let his children be circumcised.

It is clear, then, that the law is not absolutely fixed. If the rabbis today felt it proper to be liberal, they would encourage rather than fear the reception of these children as Jews. They would, of course, ask for the ceremonial requirements, but their attitude would be friendly and not hostile to the entire situation.

In this regard, it is important to note the decision of the Central Conference of American Rabbis, which is the offi cial organization of the Reform movement in America (see C. C.A.R. Yearbook, 1947). Such a child is welcome to enter the school of a Reform congregation, and if the child completes the school courses, we consider this education to be the full equivalent of any ritual or ceremony of conversion. In other words, in Reform Judaism, while the rituals are not disregarded, the education in ethics and in Jewish history and literature is considered the more important element. That is also why, in our reception of converts, we are not content with the mere ceremonies, but require a month or more of instruction.

Basically, then, one of the sources of difficulty in the situation is not so much what the Law is, but the attitude of the rabbis. There is only one form of Jewish religion in Israel, and that form, for reasons which seem adequate to itself, is afraid of the whole situation confronting the Jewish religion in the present world (including Israel) and reacts vigorously against a liberal attitude in the reception of proselytes. There are in Israel many moods among Jews, but only one type of religious organization. In America, for example, where there is more than one type of religious organization, the mood between traditional and modern has become mutually tolerant.

But what is to be done under the present circumstances? The State can do no other than to make religion a matter of choice, and Orthodoxy can do no other than express its mood of suspicion in the matter and demand the full ceremonial of bathing and circumcision as an indispensable preliminary. In fact, it may even demand the formal conversion of the mother on the ground that the child, even if converted, yet being raised by a Christian mother, would not be truly a Jew. All this constitutes a sharp conflict in which a solution must be found.

May I suggest that a solution is possible? The State can make clear that it is not deciding for the Jewish religion who is a Jew. It is making only a civic or political decision as to which of the three communities, Christian, Mohammedan, or Jewish, the citizen belongs. The religious tests remain. When this child grows up and is about to marry, it will be the duty of the religious authority to inquire whether this child is born of a Jewish or a Gentile mother. It should have such a questionnaire for all who come to be married. If the religious authorities find that the person was born of a Christian mother, then they may demand that certain ceremonials be observed before the marriage is permitted. All that the State now says is that this child is politically or civically Jewish. Whether or not the requirements for being religiously Jewish are also fulfilled is left to the religious authorities to decide whenever the matter comes before them, in such individual cases as marriage or divorce.

Of course, this involves, in effect, the creation of a group of what may be called half-proselytes to Judaism. They will be people who have full Jewish rights civically, but only tentative Jewish rights religiously. Is this possible? Is there a precedent for it? There is, indeed! Besides the full proselytes [p???] which Orthodoxy now demands, there was also during the time of the Jewish State, a status of half-proselytes [???]. This is based upon the Talmud (Avodah Zara, 64b) and codified by Maimonides (“Issure Biah” XV : 7-8). But, such half-proselytes could only be accepted while the Jewish State existed, the technical phrase for that being, “while the Jubilees were being observed.” But after the Jewish State ceased to exist, it was not safe, or permitted, to welcome such half-proselytes (cf. Maimonides, op. cit., 8). However, now there is a Jewish State. Without going into the complex question of the State’s status in Jewish religion, it appears to be clear, as you indicate in your letter, that whatever assimilation there is, it will be toward Judaism and not away from it. There fore, it is again possible to have ger toshav, half-proselytes.

Actually, this is all that the government of the State of Israel wants. The present difficulty with the religious groups has arisen chiefly because of a confusion between ger zedek, the full proselyte, and ger toshav, the half- or tentative proselyte. If the State will now declare that it does not proclaim these children ger zedek (this [ ???] will be a matter for religion to decide, when the problem of the status of the child comes before the religious authorities at marriage and other occasions), the State is only making a ger toshav decision affirming the civic right to choose to belong to the Jewish community rather than to the Christian or Mohammedan community. It is with this clear distinction that I believe a solution can be reached.

RRR 222-225

Grafting of Roses

Since Jewish law seems to prohibit all mixture of spe cies of animals and of plants, is the grafting of roses in order to produce varieties permitted at all? Originally, Dutch and French rose breeders planted seeds of dif ferent species in the same field, and the resulting seeds (evidently by spontaneous crossing) produced new va rieties. The modem method is a conscious, artificial crossing of different kinds of roses (presumably by mixture of pollen, as with hybrid corn). A third method is the grafting of the tender twig of a garden rose on the tough stock of wild roses. Are any, or all, of these methods permitted, or forbidden, by Jewish law? (From M. S.)

There are two Biblical sources for the laws as they developed on this matter. The first is Leviticus 19 : 19: “You shall not mix cattle breeds; you shall not sow your field with mixed seeds.” The other verse is Deuteronomy 22 : 9: “You shall not sow your vineyard in mixed seeds.”

The commentators generally despair of giving a reason for this prohibition. Rashi merely says that it is a decree of the King that we have to obey. But Nachmanides says that the reason for the prohibition is that God has made the species and that if we start trying to make new species, we are implying that God’s work at the Creation was not perfect (see Nachmanides to Leviticus 19 : 19).

There is, of course, a complete tractate of the Mishnah entitled “Kelaim” (Mixed Seeds), and there is a Gemara in the Palestinian Talmud on it, but in the Babylonian Talmud there are only a few chance references. This was due to the fact that many of the laws involved in the processes of agriculture, such as stoppage of agriculture on the Sabbatical year, tithes, and so forth, apply only in Palestine; this is also the case with some of the laws on mixed seeds. Of the later legalists, the chief sources are Maimonides in his “Laws of Kelaim,” and the Shulchan Aruch itself in Yore Deah 295 ff.

Now as to the applications of the law to the grafting of roses: Owing to the fact that the verse in Leviticus speaks of seeds in the field and the verse in Deuteronomy speaks of the vineyard, the laws are divided into two sections, one on the planting of vegetables (i.e., “seeds”), and so forth, and the other on the planting of vineyards and trees. There are laws applying to the planting of mixed varieties of vegetables which do not apply to trees and the grafting of trees.

The question, therefore, that must be decided here is whether a rose bush belongs to one class or the other. Is it akin, let us say, to a potato vine or even a wheat plant? Or is it to be classed with the trees? If it is counted among the plants and not the trees, then the problem is simple. The prohibition of mixing such plants as wheat and turnips, and so on, applies only in Palestine and is not prohibited outside of Palestine. Thus, Maimonides, in Yad, “Kelaim” I : 1, says that vegetable mixtures are forbidden in Palestine only, and (I : 3) that a Jew may sow mixed seeds outside of Palestine.

If, however, the rose bush is a tree (or akin to a tree) then the prohibition of grafting trees applies outside of Palestine too. But even if it is a tree, the first method mentioned in the question, namely, sowing the seeds together in the field, is entirely permitted, because the prohibition against sowing seeds together applies only to vegetables, not to trees (see Yore Deah 292 : 3).

Let us continue on the presumption that the rose bush is a species of tree, for otherwise it is a species of vegetable plant and the prohibition applies only in Palestine. Maimonides states that the law against “mixing” applies only to the prohibition of mixing plants that result in edible food, but in bitter, inedible plants, or even medicinal plants, the mixture is not prohibited. So, too, the Shulchan Aruch (in Yore Deah 297 : 3) says that only such vegetables as are meant for human food are forbidden to be mixed, but there is no prohibition in mixing those bitter herbs and roots that are of use only for medicine. Since the rose is certainly not raised for food, such mixtures are permitted (see Yad, I : 4).

Furthermore, in all the prohibited mixing, whether with regard to vegetables, which is forbidden only in Palestine, or with trees, whose grafting is forbidden also outside of Palestine, the mixture is forbidden only if the plants are definitely of different species. Therefore, the Mishnah in Kelaim says in the very first Mishnah that wheat and rye grass may be mixed, and barley and oats may be mixed, because they are not different species. Maimonides says in Yad, “Kelaim” III: 5 and 6—after mentioning various plants that are so similar that mixing them is not forbidden, for example, turnips and radishes—that in general if plants or trees have similar leaves and are not widely different, it is not forbidden to mix them. With regard to the rose bushes, surely all the grafting is done between varieties of roses, and the leaves, et cetera, are much alike. There is not enough difference for the admixture to be declared a crossing of species. In other words, while the law does not use our modern terminology, it seems to say that the crossing of species is forbidden, but not the crossing of varieties of the same species.

An interesting sidelight on the question of tree grafting is stated in the long controversy, still going on, as to the ethrog used in the Succah ceremonial. The ethrogim, especially those raised in Corfu, which are in many cases preferred by many Chasidim to those raised in Palestine, are customarily produced by grafting the tender twig of the ethrog plant on the sturdier wood of the lemon tree. Only Mordecai Jaffe, in the “Levushim,” prohibited it on that ground, but Ephraim Margolis, in responsum 56 of his “Bes Ephraim,” refutes this rather solitary prohibition. He speaks of the fact that Gentiles are not prohibited to graft trees and then adds (on p. 48, column 1) that as to the ethrog (which grows grafted onto the lemon tree) if it remains in taste and appearance like an ethrog (and not like a lemon) and there are only variations in color and so on, then there is no objection. It is still an ethrog.

So it is with the roses. They change only in “variety.” The admixtures are of the same species; they are not different enough to be called a mixture of species. Finally, if they are akin, not to trees, but to grasses and vegetables, then the prohibition against mixing them applies only to Palestine and not to the rest of the world.

RRR 50-55

The Word “God” Spelled “G-d”

Your question concerns the spelling of the word “God” in English printed material. You have noticed that in recent years, many Orthodox magazines print the word “G-d. ” Now you have found that the bulle tin of one of the Reform congregations has apparently adopted the custom of the Orthodox and spelled the word in the same skeleton way. Should we follow that custom in our own bulletin? What is the justification for it in the Jewish legal tradition? (To Rabbi

Walter Jacob, Pittsburgh, Pennsylvania)

The question involves one of the most complicated themes in Jewish legal literature. Almost every phase of it has been subject to debate and divergence of decision. The basic source of the law is Deuteronomy 12 : 3 and 4. The verses contrast the treatment to be accorded idolatry with that accorded to the worship of God. It reads: “Thou shalt destroy their altars and erase their name” [of the idols], and it continues (verse 4): “Thou shalt not do thus to the Lord thy God.” The Sifre to this verse says that from this we derive the law that it is forbidden to erase the name of God. This statement is the source of a great deal of law with regard to the writing of Torah scrolls. If, for example, the scribe makes a mistake and writes the name of God where it should not appear, may he erase the error? If he misspells the name of God, may he erase the incorrect letter? These laws are discussed in the Talmud (Menahot 30c and b) and are finally codified in the law in Shulchan Aruch, Yore Deah276.

The question then ramified into many other questions. If a Sefer Torah is written by a heretic and according to some authorities (Shulchan Aruch, Yore Deah 281 : 1) must be burned, how is it possible to permit the burning of all the names of God in that scroll? If, as often occurred in certain old synagogues, psalms and texts were painted on the wall, how could the synagogue be repainted and those names of God be erased by the new paint (in case they no longer wanted to have those verses on the wall)? (Z’vi Eisenstadt, “Panim M’iros,” vol. I,45, and Jonah Landsofer, “M’ill Zedekah” 24 and 25.)

New complications arose at the beginning of the age of printing. Does sanctity inhere only in the written name of God, or does it apply also to printed text? What about texts written in languages other than Hebrew? Are these texts to be deemed sacred?

A variation of the problem is found in the discussion in the Talmud (b. R.H. 18b) where there is a report that the name of God used to be written in notes of debt (i.e., in the date) as, “In the third year of Johanan, High Priest of God.” Then a man would pay his debt and the note with God’s name would be found on the ash heap. Therefore they prohibited this use of God’s name in order to protect it from undignified neglect. Thus to the problem of erasure was added the problem of indignity through neglect.

During the last century, owing to a rather curious circumstance, most of these problems received a thorough discussion in one single essay. When Chaim Cheskia Medini published the first volume of his great legal compendium, he named it after the verse in Isaiah 32 : 12, “S’de Chemed” (Pleasant Fields). A rabbi wrote to him objecting to the title, saying that in case some of the sheets should be thrown onto an ash heap and the title were torn in half, the word S’de, meaning “field,” would look like the word Shaddai, which is one of the names of God.

To defend his use of the title, Medini wrote a long essay called “Be’er Bisdey” (Explanation of the Fields), in which he defended his use of the title, stating primarily that this word means “fields” and not “God,” and that even if he had meant it to signify God, that would not be wrong, for there were scores of books using the name of God in their titles. Following his own detailed statement are a series of letters from most of the great scholars of the generation. This essay, “Be’er Bisdey,” contains much of the legal material involved in our problem. Yet there are certain matters not included since, after all, Medini did not mean to use the name of God, while those who write and who print “G-d” do mean it to be the name of God. Therefore the matter has to be discussed systematically.

Before going into the subject itself, one general consideration must be borne in mind. This writing of the word “G-d” is a fairly recent custom in America, and all new restrictions and disciplines must be looked upon with suspicion. Just as it is wrong to eliminate laws, so it is wrong to add restrictions and prohibitions. Such additional strictness as this spelling represents in English texts must not be allowed unless it is absolutely certain that it is required. An example of how far such new restrictions can go is the one made by Isaac ben Aryeh Rudnik in his responsa “S’de Yitzchok” 5 (London, 1961). He would forbid the sound taping of the wedding ceremony, for if the tape were to be erased, the name of God would thus be destroyed! Of course, anybody may add additional strictness to his own behavior; but he has no right to add additional strictness to the life of the general Jewish public unless, of course, this new strictness has become indispensable because of some new situation or is unmistakably justified in the law. It will be seen upon study of this matter that every basis of the prohibition is dubious or, at least, debatable.

First of all, the primary prohibition against erasure (by act or neglect) of the name of God applies to the sacred names in the properly written text of the Torah, and even in the Torah itself, those names of God are not sacred unless the scribe, by a specifically uttered formula, sanctifies them. If the scribe has not sanctified them, then there is considerable opinion that even the names in the Torah may be erased (see authorities quoted by Isaac Schmelkes in letter 23, in “Be’er Bisdey”). Certainly if a scroll is written by a heretic, it may be allowed to be burned up in a fire on the Sabbath, without needing to be rescued from the fire (cf. above).

Secondly, after the age of printing, there was a widespread debate as to whether the sanctity of the sacred written text of the Torah carried over to printed texts. There is a strong body of opinion to the effect that the special sanctity inheres only in the formally written text. Of course, custom has made printed prayer books sacred and they are carefully preserved and buried. Nevertheless, the strong opinion against the sanctity being transferred to printed texts cannot be ignored (see letter of Schwadron in “Be’er Bisdey,” Letter 13).

Furthermore, the bulk of legal opinion consisting of some of the greatest authorities insists that the sanctity which the law ascribes to the written name of God applies only to the name as written in the Hebrew language, in the sacred tongue. Sabbetai Cohen (Schach) in his commentary to the Shulchan Aruch (Yore Deah 179 : 11) says that the rules of special handling do not apply at all to the name of God written in any other language. Therefore, he says, such names as Gott in German or Bog in Russian may be erased, having none of the requirements of special sanctity as writing. The great authority Yair Chaim Bachrach, in his Responsa 107 (109 in Lemberg ed., 1894), is inclined to believe that if these non-Hebrew names, Gott or Bog are written in Hebrew letters, they are somewhat sacred and may not be erased. But if they are written in non-Hebrew letters, he says (clearly and scornfully): “I cannot imagine that there would be any man in the world who would think that they have any sanctity.” If Bachrach had lived today, he would find out that there are people who imagine that “God” written in EngHsh has special sanctity (cf. also Solomon Eger, “Gilion Maharsha” to Yore Deah 276). Further references to the fact that the name of God has no technical sanctity in any language other than Hebrew, and therefore may be erased, are responsa of Simon ben Zemach Duran (“Tashbetz” I : 2) and Akiba Eger (Responsa 25).

There is one final consideration. The law is clear (see Maimonides, “Hilchos Y’Sodeh Torah” VI : 2, and the Talmud in b. Shevuos 35a and b) that there are seven different names of God which have the same sanctity and must be carefully preserved (against erasure and neglect and so on). These are: Jhvh, Adonoi, El, Eloah, Elohim, Shaddai, and Zebaoth. Since that is the case, then if “God” is deemed sacred in English, we will have to find a special, mutilated spelling for EI, Elohim, Shaddai, and so forth, which will bring the matter close to the ridiculous.

Since, therefore, every subquestion involved in this matter is debated and undecided, and especially since with regard to the technical sanctity of English the weight of opinion is in the negative, it is actually forbidden, or at least it is against the spirit of Jewish law, to make an additional restrictive decree requiring all printers, and others, to write the word “G-d.” In fact, the great Galician authority of the last generation, Shalom Mordecai Schwadron, in his letter in the “Be’er Bisdey” mentioned above (letter 13), ends his defense of Medini by citing exactly this principle (which is found in the Palestinian Talmud, Shevi’is II: 4-5). This great Galician scholar, speaking of precisely this subject matter, says: “We may not multiply and add restrictions and decrees.”

Therefore in our bulletin we will continue to spell the name “God” in full.

RRR 104-107

Funeral Services and Mourning for Those Lost at Sea

A man’s plane was lost at sea and hope has been given up for his recovery. When may funeral service and memorial service be held, and when does mourning begin for the family? (From Rabbi Meyer Miller, Durban, South Africa)

The tragic question which you ask is unfortunately not without ample precedent in Jewish law. It happened often in past generations that Jews were slain on the road and drowned in the rivers, with no definite proof available as to the time of death or even as to the certainty of death. Therefore, there is a great deal of legal material involved in this matter, and it is better to simplify it and follow the law chronologically.

The Gaonic compilation, Semachot (2 : 10), states definitely that if a man falls into the sea or is swept away by a river, all mourning rites are to be observed, and the period of mourning should begin when the family has finally given up hope of recovering the body. This moment of definite hopelessness of recovering the body, “mi-she-nishyoashu, ” is to be considered equivalent to the date of burial for all purposes of Kaddish and yahrzeit. This principle of the moment of hopelessness being the crucial point becomes basic in the law.

Isaac Or Zorua was asked by a son whose father was drowned in the Rhine and whose body was not recovered, whether he should say Kaddish for his father and when he should begin, and Isaac Or Zorua said to him that he should begin at once to say Kaddish, because Kaddish begins from the moment that “they have despaired” of recovering the body.

The Shulchan Aruch uses this same term, namely, the time of despair of recovering the body, as legally equivalent to the date of burial. It gives the case of a person killed by a tyrannical government, whose body is not obtainable for burial (Yore Deah 375 : 5), and Joseph Caro asks: When do they begin to mourn for him and to count shiva and the thirty days of mourning? and he answers: When they give up hope of getting the body for burial. More specifically, Yore Deah 375 : 7 reads as follows: “One who is drowned in waters that have a limit [for example, a lake in which you can see definitely that he did not emerge] they count from the time when they give up hope of finding him; or if there is a definite report that bandits slew him, they count from the time that they gave up hope of finding him.”

Of course, the ocean is considered “waters that have no limit” and, therefore, according to the Talmudic law, there is a possibility that he may be cast up on an island and is alive and, therefore, the law discourages formal mourning lest that be taken as permission to his wife to be remarried. To what extent this law concerning the “unlimited” ocean applies today we must now discuss, because if it were taken strictly, none of the thousands of people drowned at sea would ever be considered officially dead. This, of course, is not the case because the older concept of water without limit has gradually changed. The Orthodox opinions have been changing. You will notice at the end of the large “Pis-che Teshuva” section, the author (Z’Vi Eisenstadt) lines up a whole sequence of authorities who say that even if the wife cannot be free to remarry on the basis of the evidence, nevertheless Kaddish should be said and mourning followed, even in waters that have no limit. The authorities quoted there are of the first rank. While the general law is that the wife may not mourn on the ground that her husband may yet be found, there is a contrary opinion from Hai and Sherira Gaon cited by the Tur that even if there is no clear proof that he is dead but there is a report, you must mourn for him. True, this is not the prevailing opinion, but these two Gaonim are sufficient for us to rely on in a case like this.

In modern times, the concept of “water without limit,” which carries the presumption that the husband might still be alive, has changed. You will find, for example, that certain Orthodox scholars will permit a wife to be free, that is to say, they will accept the presumption of death even in such waters, because nowadays, with telegrams and cables and wireless, there is hardly any place on the ocean from which a man could not communicate if he were alive. This is not universally accepted as a general rule, but there is a tendency in the law nowadays to allow the legal presumption of death to apply also in “waters without limit.” Taking this tendency into consideration, together with the opinions of Gaonim Hai and Sherira and our own Reform liberal mood to accept the presumption of death, we may conclude in the case you cite that, although the Indian Ocean would be considered “water without limit,” nevertheless there is sufficient evidence that the man is dead and that mourning and memorial services can be held. The date for the beginning of mourning (and all other dates follow from this) is the date when they definitely give up hope.