Sex, Marriage and Family in World Religions (19 page)

Answer:
Judaism looks upon divorce with sadness (Git. 90b; San. 22a), but recognizes that it might occur.

As divorce proceedings frequently involve a great deal of bitterness, the husband may not be willing to provide a religious divorce
(Get)
along with the civil divorce unless a large payment or some other concessions are made. Sometimes a religious divorce is stipulated as part of the arrangement in a secular divorce. The Conservative Movement has sought to remove itself from this predicament by including a special statement in its marriage document. It provides for authority of a rabbinic court to grant a divorce in cases where the husband is unwilling to do so or if he becomes unavailable (Isaac Klein,
A
Guide to Jewish Religious Practice,
p. 498). This kind of ante-nuptial agreement, 72

m i c h a e l s . b e r g e r

as well as other possible solutions, have been suggested by various traditional scholars (Freimann,
Seder Kiddushin Venisuin; Berkovits, Tenai Benisu-in Uve-get
), but they have met only strong opposition among other Orthodox authorities.

The Reform Movement has concerned itself with the problems of both marriage and divorce since its inception. The matter was raised at the Paris Sanhedrin in 1806, when it was asked whether divorce was allowed and whether civil divorce would be recognized. It was clearly stated that a religious divorce would only be given if a valid civil divorce had preceded it. This statement weakened the status of religious divorce, although that was not the intent of the respondents. The Brunswick Conference of 1844 appointed a committee to look into all of the questions connected with marriage and divorce. . . . They reaf-firmed the Paris statement that marriage and divorce were subject not only to Jewish law, but to the laws of the land in which Jews reside. Although various reports and motions were presented to rabbinic conferences . . . none of these resulted in any definite actions. . . . Holdheim had earlier suggested that divorce be eliminated entirely from the set of Jewish proceedings and that civil divorce simply be accepted. This was the point of view accepted by the Philadelphia Conference of 1869 . . .

The discussion of divorce continued at later rabbinic conferences, but without any formal action being taken. Generally, the civil decree was simply accepted (
CCAR Yearbook,
vol. 23, p. 154; Freehof,
Reform Jewish Practice,
vol. I, p. 106) . . . Kaufmann Kohler, in his discussion of the problem of marriage and divorce and their relationship to civil laws, recommended that civil divorce be recognized as long as the grounds for such divorce were in consonance with those provided by previous rabbinic tradition (
CCAR Yearbook,
vol. 25, pp. 376ff). His recommendations were heard by the Conference, but not accepted in any formal manner.

Technically, of course, the child of a woman (and possibly a man) who has remarried without prior religious divorce would be considered illegitimate
(Mamzer)
. Such a child would, according to Orthodox law, be considered unlawful, and akin to one born of incestuous or adulterous relationship (
Mishna,
Kid.

III.12;
Yad,
49a;
Shulchan Aruch,
Even Ha-ezer 4.2). This was the attitude taken toward Karaites until recently. In fact, however, there is nothing that Reform or Conservative Jews can do to avoid this possible predicament. It does not matter to the Orthodox authorities whether we simply recognize civil divorce or proceed to initiate our own form of
Get.
The latter is also not recognized by them . . .

At the present time, the Central Conference of American Rabbis makes no provision for a religious divorce and civil divorce is recognized as dissolving a marriage by most Reform rabbis.

Walter Jacob

[Walter Jacob, 162. Reform Judaism and Divorce (1980), available at http://www.ccarnet.org/cgi-bin/respdisp.pl?file ס 162&year ס arr]

Judaism
73

REFORM OPINION ON PATRILINEAL AND

MATRILINEAL DESCENT

Since the rise of the diaspora in Second Temple times, Jews saw a need to define themselves vis-à-vis their surrounding culture. Rabbinic Judaism insisted that having a Jewish mother was sufficient to be deemed a Jew—a position consistent with the view that Jews were a people and transmitted identity genetically.

The modern period, however, viewed religion as a matter of personal choice, challenging the normative “biological” view. With the rise of intermarriage in America and its increased acceptance among Jews, the traditional notion was seriously tested, particularly as these couples sought affiliation in synagogues and temples. Reform Judaism, which sees religion as constantly evolving, therefore redefined Jewishness in 1983 to reflect both nature and nurture: a child is Jewish if either parent is Jewish and the child is raised as a Jew. This significant departure from the traditional definition meant some individuals were not universally recognized as Jews—another cause of internecine Jewish conflict.

Document 1–61

c e n t r a l c o n f e r e n c e o f a m e r i c a n r a b b i s , 3 8 . patrilineal and matrilineal descent. october 1983

Question:
What are the origins of matrilineal descent in the Jewish tradition; what
halakhic
justification is there for the recent Central Conference of American Rabbi’s resolution on matrilineal and patrilineal descent which also adds various requirements for the establishment of Jewish status?

Answer:
. . . These discussions show us that our tradition responded to particular needs. It changed the laws of descent to meet the problems of a specific age and if those problems persisted, then the changes remained in effect.

The previous cited material has dealt with situations entirely different from those which have arisen in the last century and a half. Unions between Jews and non-Jews during earlier times remained rare. Furthermore, the cultural and sociological relationship with the people among whom we lived did not approach the freedom and equality which most Jews in the Western World now enjoy.

We in the twentieth century have been faced with an increasing number of mixed marriages, with changes in the structure of the family, and with the development of a new relationship between men and women . . .

We may elaborate further with the following statements which reflect the previously cited historical background, the introduction to the resolution as well as other concerns. We shall turn first to the question of descent and then to the required “acts of identification.”

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m i c h a e l s . b e r g e r

1. In the Biblical period, till the time of Ezra or beyond, patrilineal descent determined the status of a child, so the children of the kings of Israel married to non-Jewish wives were unquestionably Jewish. This was equally true of other figures. Furthermore, our tradition has generally determined lineage
(yihus)
through the father, i.e., in all valid but originally forbidden marriages. This was also true for priestly, Levitical and Israelite lineage which was and continues to be traced through the paternal line. . . .

Yihus
was considered significant, especially in the Biblical period, and long genealogical lines were recorded; an effort was made in the time of Ezra and, subsequently, to guarantee pure lines of descent and precise records were maintained (Ezra 2:59 ff; genealogies of I, II Chronicles). An echo of that practice of recording genealogies remained in the
Mishnah
and
Talmud
despite the difficulties caused by the wars of the first and second century which led to the destruction of many records (M. Kid. 4.1; Kid. 28a, 70a ff). In the Biblical period and in specific later instances, lineage was determined by the father.

2. Mishnaic and Talmudic authorities changed the Biblical laws of descent, as shown earlier in this responsum, as well as many others when social or religious conditions warranted it. Family law was changed in many other ways as demonstrated by the laws of marriage. For example, the Talmudic authorities validated the marriage of Boaz to Ruth, the Moabitess, despite the strict ruling against such marriages (Deut. 23.4); they indicated that the Biblical rule applied only to males, not to females (Yeb. 76b ff). Earlier the
Mishnah
(Yad. 4.4) claimed that the various ethnic groups had been so intermingled by the invasion of Sennacherib that none of the prohibitions against marriage with neighboring people remained valid. In this instance and others similar to them, we are dealing with clear Biblical injunctions which have been revised by the rabbinic tradition. We have followed these examples in our own twentieth century revision.

3. The Reform movement has espoused the equality of men and women, virtually since its inception. As equality has been applied to every facet of Reform Jewish life, it should be applied in this instance.

4. We, and virtually all Jews, recognize a civil marriage between a Jew and a Gentile as a marriage although not
quidushin,
and have done so since the French Sanhedrin of 1807. We are morally obliged to make provisions for the offsprings of such a union when either the father or mother seek to have their children recognized and educated as a Jew . . .

For the reasons cited in the introduction to the Resolution, those stated above and others, we have equated matrilineal and patrilineal descent in the determination of Jewish identity of a child of a mixed marriage.

Now let us turn to the section of the resolution which deals with “positive acts of identification.” There are both traditional and modern considerations for requiring such acts and not relying on birth alone.

Judaism
75

The clause which deals with the “appropriate and timely acts of identification with the Jewish faith and people. . . . ” has gone beyond the traditional requirements for consideration as a Jew. Here we have become stricter than traditional Judaism. We have done so as the normal life of Jews has changed during the last two centuries.

In earlier periods of our history . . . individuals identified themselves and lived as part of the Jewish community. . . . Its entire way of life was Jewish.

Emancipation changed this condition. . . . [V]irtually all Jews live in two worlds.

In order to overcome these problems as well as others, we now require “appropriate and timely public and formal acts. . . . ” The requirement has been worded to permit some flexibility for individual circumstances. With time and experience, custom will designate certain acts as appropriate and others not. It would be wrong, however, to set limits now at the beginning of the process.

We are aware that we have made more stringent requirements than our tradition. We believe that this will lead to a firmer commitment to Judaism on the part of these individuals and that it will enable them to become fully integrated into the Jewish community. We have taken this step for the following additional reasons:

1. We do not view birth as a determining factor in the religious identification of children of a mixed marriage.

2. We distinguish between descent and identification.

3. The mobility of American Jews has diminished the influence of the extended family upon such a child. This means that a significant informal bond with Judaism which played a role in the past does not exist for our generation.

4. Education has always been a strong factor in Jewish identity. In the recent past we could assume a minimal Jewish education for most children. In our time almost half the American Jewish community remains unaffiliated, and their children receive no Jewish education.

For those reasons the Central Conference of American Rabbis has declared: “The Central Conference of American Rabbis declares that the child of one Jewish parent is under the presumption of Jewish descent. This presumption of the Jewish status of the offspring of any mixed marriage is to be established through appropriate and timely public and formal acts of identification with the Jewish faith and people. The performance of these
mitzvot
serves to commit those who participate in them, both parents and child, to Jewish life.

“Depending on circumstances,
mitzvot
leading toward a positive and exclusive Jewish identity will include entry into the covenant, acquisition of a Hebrew name,
Torah
study,
Bar/Bat Mitzvah,
and
Kabbalat Torah
(Confirmation). For those beyond childhood claiming Jewish identity, other public acts or declarations may be added or substituted after consultation with their rabbi.”

[Central Conference of American Rabbis, 233. A Reform Get (July 1988), available at http://www.ccarnet.org/cgi-bin/respdisp.pl?file ס 38&year ס carr.]

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n o t e s

1. This text is nowhere in our present copies of the Old Testament.

2. The woman’s declared rebellion and the man’s knowledge that even during cleanness she will remain forbidden aggravate the pain of the deprivation and entitle him to immediate redress.

3. In this case divorce is delayed in the hope that the weekly reductions of her ketubah and the persuasions used by the court will induce her to change her attitude.

4. This parable serves to express the absence of reserve that may characterize the mutual and intimate relationship of husband and wife without offending the laws of chastity.

5. Whilst cohabitating with one woman to think of another.

6. Or: science and philosophy.

7. I.e., observing the golden mean.

8. Cf.
Nicomachean Ethics
iii.10.1118b2ff. The passage referring to the sense of touch reads as follows in Rackham’s translation: “Hence the sense to which profligacy is related is the most universal of the senses; and there appears to be good ground for the disrepute in which it is held, because it belongs to us not as human beings but as animals.”

c h r i s t i a n i t y

Luke Timothy Johnson and Mark D. Jordan

u n e a s y e m b o d i m e n t , s e x u a l a m b i v a l e n c e , a n d t h e i n c a r n a t e d a n d r e s u r r e c t e d