Rabbi Adam Mintz: Rabbi Henkin and The First Heter Agunot in America Rabbi Henkin and The First Heter Agunot in America By Adam Mintz The tragedy of the agunah, the woman who is unable to receive a get from her husband, has plagued the Jewish people since time immemorial. Rabbis and scholars throughout the centuries have contended with this issue in an attempt to free agunot to remarry. In the United States this issue was first formally addressed following World War I. European Jews soldiers, fighting on both sides of the war, were among those killed in battle. As soldiers are generally young, they often left childless widows who required a halitzah from the dead husband’s brother in order to remarry. A number of these brothers had immigrated to the United States where visas were difficult to acquire. Therefore, the Agudath HaRabbanim sent a letter to its membership in 1922 alerting them to this situation and offering assistance in helping these women acquire temporary visas to the United States thereby allowing these women to obtain a halitzah and to remarry. With the growth of the American Jewish community in the early part of the twentieth century, Jews began to assimilate and the predicament of the Jewish wife whose husband had abandoned her to live with a non-Jewish woman became an ever increasing phenomenon.[1] Many rabbis attempted to free the Jewish wife to remarry, even though she was unable to find the husband and receive a get. Some of the solutions were based on broad institutional enactments, while others dealt with the problem on a case-by-case analysis. One of the principles underlying the foundation of much of this discussion is the halakhic status of civil marriages and of weddings performed by Reform rabbis. Rabbis Feinstein and Henkin disagreed about the status of these marriages and this disagreement played an important role in their view of the agunah problem. Understanding their particular views is vital for the understanding of the agunah issue and for the appreciation of the important roles that these two American rabbinic giants played on this issue. Rabbi Henkin discussed this issue in a number of articles and teshuvot. His earliest treatment of civil marriage appears in a series of articles in Hapardes in 1934, where Rabbi Henkin argued that a civil marriage is considered a marriage according to Jewish law and that a get would be required to terminate such a marriage.[2] He explained that a couple is considered halakhically married even though they did not have a Jewish ceremony and do not intend to be married according to Jewish law. According to Rabbi Henkin, the validity of the marriage is achieved by the fact that the couple lives together as husband and wife. He added that the Jews who see them together as a couple satisfy the requirement of witnesses in establishing the halakhic status of the marriage. In an article in his book, Perushei Ibra, Rabbi Henkin explained the rational for his position through the comparison to a similar historical situation.[3] He quoted a fascinating responsum of Rivash, Rabbi Isaac ben Sheshet Perfet (1326-1408), communal rabbi in Algeria who had fled Spain following the anti-Jewish riots of 1391.[4] Rivash described that he was approached by a woman who had been a converso in Majorca. After she had escaped to North Africa she asked whether she could remarry even though she did not have a get from her first husband. She explained that she had been married by a priest after both she and her husband had been forced to convert to Christianity. After the marriage they had lived together as a married couple. The husband was not available to give her a get. Rivash decided in this case that the woman could remarry and did not require a get. Rabbi Henkin argued that Rivash’s case is unique as this couple was married by a priest and no longer lived among Jews. This situation, argued Rabbi Henkin, cannot be compared to the American situation where a man and woman are married by a civil authority and live together among Jews. Rabbi Feinstein responded to Rabbi Henkin’s decision in a number of teshuvot in Iggerot Moshe. In the earliest teshuvah, dated June 28, 1959, Rabbi Feinstein argued that a civil marriage does not require termination via a get.[5] Rather, the couple can remarry even without a get. He explained that in the United States where people easily move in and out of relationships, the fact that a couple gets married in a civil ceremony and then lives together is not considered proof that they are married according to the halakhah. He relied on the precedent of Rivash and argued that American civil marriages can be equated to that situation of the fifteenth century. Interestingly, he wrote that even though the halakhah does not require a get, if it is possible for the wife to obtain a get she should follow the opinion of Rabbi Henkin and terminate the marriage through a get. It would appear that Rabbi Feinstein would agree that in a situation where the wife received a get she would not be able to marry a kohen. Concerning a couple that was married by a Reform rabbi, Rabbi Feinstein wrote in a number of teshuvot that this wedding is not recognized according to the halakhah and a get is not required to terminate this marriage.[6] He explained that the only time the wedding would be valid is in a situation where there are two observant Jew who witness the ceremony. However, he claimed that even in that case the Reform rabbi often does not perform the marriage ceremony properly so the wedding would not be valid. Concerning the question of whether the fact that the couple lives together as husband and wife is a factor, Rabbi Feinstein wrote that a Reform ceremony is worse than a civil ceremony. A couple that gets married in a civil ceremony understands that this ceremony is not a Jewish one and that the fact that they live together binds them as a Jewish couple. However, a couple that is married in a Reform ceremony believes that this ceremony is a religious one and do not have the necessary intention of consummating the marriage when they live together. Nevertheless, he believed that if possible the woman should arrange to receive a get.[7] In 1964, Rabbi Henkin wrote a letter to an unnamed rabbi who had ruled that a get is not needed to terminate a marriage when the ceremony had been performed by a Reform rabbi. Rabbi Henkin explained: And the wonder of wonders, which makes one’s hair stand on edge, is that you are lenient regarding a marriage performed by a Reform rabbi. Is there really a need for an officiating rabbi? If a Jewish man says to a Jewish woman “you are mine” in front of witnesses, then she becomes his wife. And, if there are no witnesses at the ceremony, the fact that they live together as a married couple for many years is considered acceptable testimony. What difference does it make if the witnesses were Reform?[8] Rabbi Henkin admonishes this unnamed rabbi that he must not allow other rabbis to rely on this incorrect lenient opinion. Rabbis Feinstein and Henkin disagreed regarding both civil marriages and Reform ceremonies. While the issues are connected, they revolve around different considerations. Rabbi Feinstein looked at American society as a promiscuous one in which a man and woman living together did not reflect a relationship of commitment while Rabbi Henkin saw a more traditional society where relationships reflected commitment. It is fascinating that two Torah scholars who lived several blocks from one another could see American society so differently. The generation of rabbis and scholars who immigrated to the United States from Eastern Europe were forced to reconcile their recollections of the past with the realities of the present. That reconciliation took different forms for different rabbis. It would appear that with regard to a couple married in a Reform ceremony, the differing rulings of these two Torah giants were based on their understanding of the Reform movement. Rabbi Feinstein believed that Reform rabbis were attempting to undermine halakhic Judaism and anything that they did was problematic and needed to be avoided. On the other hand, Rabbi Henkin, while rejecting the religious positions of the Reform movement, did not feel that the Reform rabbis were a threat to the Orthodox. Consequently he felt that whether a wedding was conducted by a Reform rabbi was immaterial. Rabbis Feinstein and Henkin disagreed as to the extent to which the Reform movement created a risk to the Orthodox movement.[9] The positions of Rabbis Feinstein and Henkin had critical implications for the issue of agunah. According to Rabbi Feinstein, if a couple was married civilly or by a Reform rabbi and then the husband refused to give a get, the wife may remarry as this marriage is not considered halakhically valid. According to Rabbi Henkin, in such a situation, the woman would require a get. It would appear that Rabbi Henkin’s understanding of civil and Reform marriages stands as a serious impediment to the resolution of the agunah problem. However, in an article written in 1928, Rabbi Henkin alerted the community to the fact that he was very much concerned with the problem of the agunah and began by describing the current situation: In the past few years the problem of the agunah has increased in Europe and here in America.