Torah Table Talk – A New PaRDeS

Is God’s Law Always Right?

Parshat Emor, Leviticus 21:1 – 24:23
This Torah Table Talk is dedicated by Iris and Jeff Kubel
in honor of the birthdays of the their Grandsons, Jared and Evan Kubel
Jonathan Cohen and Sarah Rosenberg come to see their rabbi to ask him to officiate at their upcoming marriage. Both
Sarah and Jonathan were raised in homes in which Jewish traditions were celebrated and observed. Both attended
Jewish day school through eighth grade and have visited Israel twice. But now Sarah and Jonathan learn that their rabbi
is reluctant to marry them because Sarah was briefly married before and the Torah forbids a Kohen to marry a divorcee.
This week‟s Torah portion contains one of the more disturbing pieces of biblical legislation. We learn that a Kohen is
not allowed to marry a woman who is divorced. Given the context in which this law is found in the book of Leviticus,
the Torah appears to compare the divorcee to a “woman defiled by harlotry.” Similarly we learn that a Kohen cannot
marry a woman who is a convert to Judaism. What are we to make of these laws? The harsh judgment of the divorcee
and the convert is deeply disturbing. And in a larger context, what are we to make of laws which offend our moral
sensibilities? If we wish to discern the will of God in the Torah and in Jewish law then we cannot simply write such
passages off. We must struggle with them and ask what they mean for us today. We come to such a discussion (in the
words of Rabbi Joel Roth) out of a deep sense of reverence for God and the Torah. In other words, we cannot ignore the
teachings of the Torah when they are inconvenient or disturbing. As Conservative Jews we struggle to find a balance
between reverence and criticism.
Leviticus 19:2 They shall not marry a woman defiled by harlotry, nor shall they marry one divorced from
her husband. For they are holy to their God and you must treat them as holy, since they offer the food of
your God; they shall be holy to you, for I the Lord who sanctify you am holy. When the daughter of a priest
defiles herself through harlotry, it is her father whom she defiles; she shall be put to the fire.
PaRDeS
1. P’shat – Understanding the plain sense meaning of the text
Nor…one divorced from her husband: The law prohibiting priests from marrying divorced women persisted into
later Judaism….There is a specific reason for the ban, which explains why the divorcee and the harlot are mentioned
together. Hofmann explains that this priestly ban helps to clarify the view of the House of Shammai as to the grounds
of divorce. In the law of Deuteronomy 24:1, it is stipulated that a man may divorce his wife if he discovers in her
behavior, literally “some matter that was sexually improper,” (‘ervat davar), which was taken to mean that only the
presumption of marital infidelity constituted legal grounds for initiating divorce. In an effort to broaden the grounds
for divorce, the House of Hillel, whose view is reported in Gittin 90a, departed from the original sense of ’ervat
davar in maintaining ’ervah, “nakedness, sexuality,” was not the only “matter” (davar) that could serve as the
grounds for divorce. So, although this wider interpretation became normative in later Judaism, it was not originally
envisioned in the law of the Torah. In biblical times it is likely that divorce always involved a charge of infidelity by
the husband… (Baruch Levine, The JPS Torah Commentary, Leviticus)
My Commentary: The discussion of this passage revolves around issue of divorce and the expression ’ervat davar,
literally, “some matter that was sexually improper” which is found in the book of Deuteronomy. What is the reason
for the previous divorce? Was it a matter of sexually impropriety (ervah); or, was is it some other type of matter
(davar)? Beit Hillel and Beit Shammai understand this expression in different ways. According to Professor Levine,
Beit Shammai comes closer to the literal meaning of this expression though Jewish law tends to follow the non-literal
interpretation of this expression. When we view our biblical passage above, we see that in some way the divorced
woman was viewed as tainted. Gerushah literally means one who was chased away or abandoned, or possibly
discarded. The attitude toward divorce in the Torah, then, is very different from our attitude today. We struggle with
how this should affect our judgment of Torah legislation.
2. Remez – Allusions: Finding meanings hidden in the text
Mishnah: Beth Shammai says: a man should not divorce his wife unless he has found her guilty of some unseemly
conduct, as it says: “Because he has found some unseemly thing in her.” (Deuteronomy 24:1) Bet Hillel, however,
says that he may divorce her even if she merely spoiled his food, since it says: “Because he has found something
unseemly thing in her. Rabbi Akiva says, he may divorce her even if he finds another woman more beautiful than she
is, as it says, “If it comes to pass if she finds no favor in his eyes.” (Deuteronomy 24:1)
 …for hated is one who is sent away: (Malachi 2:16) Rabbi Judah said: This means that if you hate her you should
put her away. Rabbi Johanan says: It means, He that sends his wife away is hated. There is really no conflict between
the two, since the one speaks of the first marriage and the other of the second, as Rabbi Eleazar said: If a man
divorces his first wife, even the altar sheds tears, as it says, (Malachi 2:13-14) “All this you do as well: you cover the
altar of the Lord with tears, with weeping and with sighing, so that he refuses to regard the offering any more, and to
accept what you offer. But you ask, Because of what? Because the Lord has witnessed between you and the wife of
your youth, with whom you have broken faith, though she is your partner and covenanted spouse.” (Bab. Talmud
Gittin 90a-b)
My Commentary: In the Mishnah above, we see the source of the controversy between Beit Shammai and Beit Hillel
on the grounds of divorce. We should note that the issue of the right to divorce is viewed completely from the
vantage point of the man and not the woman. A woman could not initiate a divorce in Jewish law; only a man could
do so. The sages disagreed about whether there had to be grounds for such a divorce such as infidelity, or whether
other issues might be sufficient for the sages to grant a divorce. While we might find Rabbi Akiva‟s perspective
somewhat offensive, it is interesting that of all the sages he had possibly the most romantic relationship with his wife,
Rachel. He seems to be suggesting that if two people no longer love one another or no longer find each other
attractive there is reason for them to divorce. The second passage under Remez is the very final passage in the
tractate of Gittin which deals with matters of divorce. The Talmud chooses to end by quoting a powerful passage
from the book of Malachi which suggests that there are no grounds for divorce. While the sages were quite
permissive in granting divorce, they also saw this as a great tragedy.
3. Din – Law: Applying the text to life
In 1952 the CJLS adopted a responsum authored by Rabbi Ben Zion Bokser permitting RA members to solemnize
such a marriage. This permission has been widely accepted by the overwhelming majority of the RA although his
recommendation, that where such marriage is to take place, the rabbi seeks to persuade the couple to refrain from a
large public wedding, has not been widely observed. Rabbi Aaron Blumenthal, in a concurring opinion, differed with
Rabbi Bokser, and argued that such marriages be treated no differently than any other. I return to this responsum not
because I disagree with Rabbi Bokser, but because his paper fails to offer a satisfactory rationale for overturning a
clear Biblical prohibition. In his responsum, Rabbi Bokser reviewed the sources clearly forbidding such marriages
but concluded, “A rabbi who officiates at such a marriage has not acted in a manner inconsistent with his
Judaism….”
….The prohibition of a Kohen marrying a divorcee is clearly prohibited by the Torah… Rabbi Bokser begins his
paper by recognizing that there is no question that Jewish law objects to such marriage. It is Biblically forbidden. The
Talmud reaffirms this prohibition...He develops his argument by showing that where such a marriage does take place,
the Talmud ruled the marriage is valid. To be sure, the children of such marriage are not considered Kohanim and
disqualified from priestly functions, but in the event that they do perform a function it is valid after the fact.
….Yet the right “to uproot” was never completely prohibited. There was often the need for an escape hatch, and the
right of Rabbinic authorities to do so was articulated by the Rashba as follows: “It was not a matter of the sages
deciding on their own to uproot a matter of the Torah, but it is one of the mitzvot in the Torah to obey the judges in
your day and anything they see necessary to permit is permissible from the Torah…” …In conclusion…
 The prohibition of a Kohen marrying a divorcee is clearly Biblical. The reality is that very few Kohanim
who turn to us for marriage are concerned about their status as Kohanim. Our refusal to solemnize their marriage
would only lead them to be married either in a civil ceremony or in a ceremony without full Huppah and
Kiddushin
 While we regret the dissolution of a marriage, divorce in our day offers men and women an opportunity for a
second chance to develop a successful marital relationship. We also no longer perceive a divorcee as a woman
who has been discarded by her former husband and hence not suitable as a spouse for a Kohen.
 The principle that “a rabbinic court has the power to uproot a Torah law,” is applied only when faced with
extreme situations, and we regard intermarriage crises as such a situation. We also note the high rate of
intermarriage of divorced women who are often single mothers with minor children.
 We, therefore, support the decision of two Jews to marry even when he is a Kohen and she is a divorcee, and
a member of the Rabbinical Assembly may solemnize such marriage.
 With the negating of the prohibition in Leviticus 21:7, children born of marriages between a Kohen and
divorcee are not, disqualified from the priesthood and the Kohen is no longer disqualified to serve as a Kohen in
our Services or rituals.
 Such marriages may be properly celebrated in a public manner. (R.i Arnold Goodman, CJLS EH6.1.1996)
My Commentary: I have quoted a few passages from the responsa by Conservative Rabbi Arnold Goodman,
“Solemnizing the Marriage between a Kohen and a Divorcee.” While this question was originally addressed by Rabbi
Ben Zion Bokser in 1952, Rabbi Goodman felt the need to explore this question anew. First, Rabbi Bokser allowed
for a rabbi to officiate at a marriage of a Kohen and a divorcee but he still suggested that such a marriage was clearly
prohibited by Jewish law. Second, he suggested that breaking the law would amount to forfeiture of one‟s rights as a
Kohen. According to Bokser, after the fact, the marriage would be legal and allowing the couple to marry was better
than having them live together without Kiddushin. There is however a mixed message in Rabbi Bokser‟s responsa.
Rabbi Goodman revisited this question so that he could wrestle with the question of whether the sages ever had the
authority to abrogate Jewish law. If so, then a clear message of permission should be given in such a case and the
children of such a marriage should not be penalized for their parent‟s marriage. The larger question that is being
raised in this responsa is the question of what role if any a Kohen should play in Jewish life today. Indeed, many
Conservative rabbis have argued for the complete abrogation of Kehuna, „priesthood‟ in Jewish life. In an age when
we celebrate democracy and the equality of all people what does having priesthood really mean. And yet to do away
of priesthood is to give up a powerful part of our tradition. We speak of the Jewish people as being a nation of priests
and a holy people. What does this mean if there is no priesthood?
4. Sod – The Meaning and Mystery of Faith
Today‟s Torah Table Talk raises many questions for us as contemporary Jews. While most Conservative Rabbis
would not hesitate in performing a wedding for a Kohen and a divorcee, we are left to ponder the question of
authority and tradition. There is a slippery slope if one can „so easily‟ abrogate a law in the Torah. Where does one
draw a line? How does one decide which laws are worthy of abrogation and which laws should be preserved? Who
can make such moral judgments and how do we go about making such judgments? Rabbi Goodman argues that this
is not so much a moral judgment as it is a judgment based on the needs of survival and continuity in Jewish life. He
asks, “When a divorcee is prepared to marry a Jew, albeit a Kohen is it appropriate for us, in this day and age, to
refuse to solemnize the marriage?” Goodman speaks of us living in a time of crisis, when the marriage between Jews
should not easily be dismissed. I would argue that Rabbi Goodman is still copping out and not addressing the larger
issues: the attitude of the Torah toward women, the pejorative attitude toward divorce, and the role of a caste system
in Jewish life. I think I would have been more satisfied with his responsa if he had addressed these issues more
directly. Rabbi Goodman suggests that if the current rate of intermarriage is reversed a future law committee might
want to rethink this issue. I can‟t ever imagine ever going back to the ethos of the Kehuna, the priesthood. While I
admire Rabbi Goodman‟s attempt to wrestle with a difficult piece of legislation in the Torah, maybe there comes a
time when we simply must say that this speaks in a language no longer relevant to our world today.
Questions to Ponder
1. If Beit Shammai‟s opinion comes closer to the literal meaning of the Torah text, why did the Rabbis choose to
adopt Beit Hillel‟s opinion as the official law? (There does not need to be an issue of fidelity for a couple to be
granted a divorce according to Jewish law.)
2. Are the issues raised above only an issue for those who view the Torah as „the word of God?‟ How might one‟s
attitude toward the question of divine authorship affect the way one wrestles with this question?
3. Rabbi Bokser wrote his responsa in 1952 and Rabbi Goodman wrote his in 1996. How do you think the time
frame may have influenced each of these scholars?
4. How should rabbis address issues of divorce today? You can find Rabbi Goodman‟s responsa at the Rabbinical
Assembly website: http://www.rabbinicalassembly.org/jewish-law/cjls/even-haezer
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