I held the opinion (and I could be wrong, of course) that perhaps it's better, whenever possible, to ensure that when non-Orthodox people get married that a proper, kosher wedding is performed (such as serving as witnesses to the ceremony - kosher witnesses being a condito sine qua non for the ceremony).
My disputant took the opposite position - that we should not ensure that they have proper marriages. I don't know if he would have gone so far as to say that we should actively discourage halachicly kosher marriages whenever possible, but based on his reasoning, I think he would have even agreed to that.
His primary concern, which is a valid concern, is the issue of mamzeirus. As we all know, if this woman were married in a halachically valid ceremony, and then were divorced (and, in all likelihood, there would be no get or an invalid one) then any children she had from any subsequent marriages would be mamzeirim - unable to marry anyone in the community other than other mamzeirim or converts (and their children would be mamzeirim as well).
I agreed with his reasoning that this is a concern; but I felt that there were too many possibilities that would reduce mamzeirus to a negligible concern:
- First of all, who says that they are going to get divorced? Yes, there is a high divorce rate (my disputant provided the customary 50% rate, I wasn't so sure that that was really accurate), but then again, even if they get divorced...
- There is the possibility that she will get a kosher get. It's not unheard of, of course. I have a relative who was in such a situation - she got married by a Conservative Rabbi (who didn't know what he was doing because he married them on Chol HaMoed!) in a ceremony that was, in all likelihood, not k'das v'k'din. Later on, when they split up, she had become Orthodox and was able to get an Orthodox get so that she could remarry if she wanted to.
- Then there is the possibility that she will not choose to remarry OR the possibility that her former husband will die before she gets remarried (or has kids from that subsequent marriage).
- Lastly, there is the question that if she remarries, will she have kids? Will she marry in enough time to have kids (before her biological clock runs out)?
My argument in favor of a kosher marriage was that you'll be saving the couple from having illicit relations. True that other, more serious prohibitions (such as Niddah, for example) will be violated -- but they're going to be violated either way - there's very little help for that (short of getting her to accept Taharas HaMishpacha - a tough sell for someone non-Orthodox). But just because they have the more serious prohibition of Niddah doesn't mean that they shouldn't have to violate the lesser prohibition of illicit relations. By "preventing" them from having a kosher marriage, you are causing them to violate today for a situation in the future which may or may not happen.
My disputant went on to mention that Chazal seemed to want to take whatever steps were necessary to reduce mamzeirus. And that despite the mitigating factors that I presented above, there remained a chance of mamzeirus and therefore we shouldn't do anything that would increase that probability.
My counter argument to that was that if we are concerned about preventing any possibility of mamzeirus, then we should simply abolish all marriages to begin with. If no one performs kiddushin, there are no marriages and then (barring cases of incest) there is no mamzeirus. Of course, I wasn't seriously presenting this as an option, but merely to show that the idea that we should do anything and everything to prevent any chance of mamzeirus is fallacious.
Of course, there is the opinion (was it R. Ya'akov Kaminetsky? - I'm not certain who) that if we see a couple living together as man and wife, even without the benefit of a valid kiddushin, they have a chazakah as a married couple and would require a get anyway. I'm fairly certain that R. Moshe Feinstein holds the opposite opinion (I'll have to listen to the Rabbi Frand shiur on that topic again).
Of course, I am not a posek and neither was my disputant - it was just a back and forth conversation that we had. Anything that either of us said could be off the mark halachically. I'm curious as to what other people think.
The Wolf
13 comments:
Sadly, it doesn't matter. Many achronim have pointed out that the repeated biah in a common law marriage amounts to nesuin anyways.
Right. That's what I pointed out in my second to last paragraph.
But that's not a universal view.
The Wolf
Missed that, sorry.
The original chiddush belongs to the Pnei Yehoshua or the Node Beyehuda - I always mix them up and cant remember which.
I think it was R' Henkin.
The details of this can be incredibly offensive. Here's a real case--mine. My husband and I come from families that are not observant. We have become observant, within the standards of the Conservative movement. My husband asked our rabbi (who is shomer Shabbos according to the standards of the Conservative movement) to be one of our witnesses. A close relative who has recently BT'd to Orthodoxy then told us that he could not participate in the wedding unless we replaced my husband's rabbi with a 'more kosher witness'. He said he wouldn't have minded one of our observant male friends from our Conservative synogouge, but that a Conservative rabbi was by definition unacceptable. This was, of course, days before the wedding, after we had been discussing various halachic and logistical issues for months!
You can believe it left a bitter taste in our mouths towards Orthodoxy in general, and BTs in particular!!!
As you pointed out, R. Moshe tried to discourage such kosher marriages and sought to invalidate them in order that no get would be required. For this he was pilloried by the non-Orthodox rabbinates. Its a perfect example of wires getting crossed. What R. Moshe obviously intended as a social kula was interpreted as the greatest kind of sectarianism. The truth is that it might have been both. The facts are that non-Orthodox Jews have been getting married and divorced for 200 years now. Its very likely that many or most of these people didn't get a halakhically valid get when they were divorced. So--whither all the mamzerim?
The answer may lie in the fact that the Rambam scathingly criticized the Karaites for not writing proper Gittin. And yet, he permitted intermarriage with them. If you think that the this is a position that is like squaring a circle then you're not alone.
Suffice it to say that the issue that confronted R. Moshe in the latter portion of the 20th century was a real issue for 150 or 200 years.
So again, I ask, whither all the mamzerim?
MFM (S)
The Rambam also holds mishpacha sh'nitma' nitma'. If you cannot prove (or do not have means to research) whether a person is a mamzer, you assume that they are not. That is not really squaring the circle. Halacha makes assumption part of its decision.
R.Moshe invalidated the kidushin.R.Henkin disagreed with him.
How many people do you think are walking around today with the knowledge that they are mamzerim and with the additional forthrightness to live within the Halachic framework for mamzerim?
I could probably count them all on one hand.
I wouldn't be surprised if a good percentage of the people who visit this site are technically mamzerim and are totally ignorant.
What this means is that the entire discussion is pretty moot. It's like worrying about tumah for the beit hamikdash.
While what you say may be true Orthoprax, one must still do due diligence and try to ascertain that, to the best of your ability to discern, the person you are marrying is not a mamzer (unless you are a mamzer or ger yourself, of course).
And, furthermore, there is nothing wrong with trying to stem the tide of mamzeirus as much as possible, even if it already exists (unknowingly) in a significant percentage of the population.
The Wolf
Wolf,
Why? What would be wrong if everyone were a mamzer? Being a mamzer is only bad if other people are not. If everyone is a mamzer then everyone is equal again.
For two reasons:
Firstly, it's fairly clear from the way the pasuk describes it that mamzeirus is a bad thing. True, if everyone is a mamzer than the problem goes away, but that's kind of like saying that if everyone is dead then the problem of murder goes away.
Secondly, the fact of the matter is that *not* everyone is a mamzer. And furthermore, unless you *know* that you are a mamzer, you must still conduct yourself as if you are not one and try to avoid marriages to mamzeirim (unless, as mentioned above, you are a ger).
The Wolf
Wolf,
Why is mamzerus bad? It's just bad because the non-mamzerim look down on the mamzerim. Take the non-mamzerim away and there is no "untouchable" nebuch class anymore.
You ask any Torah scholar and they throw up their hands at the immorality of faulting a child with the sins of his parents. There is nothing wrong with a mamzer and in protest of this horrible labeling we should all put on the scarlet letter.
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