Kabbalat Mitzvot (4) Contemporary Approaches to Kabbalat Mitzvot (2)

  • Rav David Brofsky
 
Last week, we began our discussion of contemporary approaches to conversion in general, and to kabbalat mitzvot in particular. We noted that in the 19th–20thth century, the Jewish world confronted, in the wake of the Emancipation, assimilation and intermarriage. The responsa literature regarding conversion relates primarily to Jewish men who wished to convert their non-Jewish partners. Similarly, the Israeli Rabbinate confronted the situation of Jews who arrived with their non-Jewish spouses immediately after World War II and in the wake of the massive Russian immigration to Israel.
 
            We first presented the position of R. Benzion Meir Chai Uziel (1880-1953), who served as the Chief Rabbi of Tel Aviv-Jaffa (1911-1939), Salonika (1921-1923), Mandatory Palestine (1939-1948), and the State of Israel (1948-1953). R. Uziel expressed his great concern for Jews who might assimilate due to intermarriage, as well as toward their children, who might be lost to Judaism if they are not converted. He felt that there was a religious obligation to bring these families closer to Judaism, even through conversion.
 
            R. Uziel was well aware that converting non-Jewish spouses would most often entail compromising on a full commitment to religious observance. In his Mishpetei Uziel (7:20), he argues that the beit din may, and should, convert the non-Jewish spouses and their children. Regarding kabbalat mitzvot, he writes that “[the beit din] does not require the convert to fulfill the mitzvot.” R. Uziel further asserts:
 
The court does not need to know that he will fulfill that mitzvot... It is permissible and it is a mitzva to accept male and female converts, even though it is known to us that they will not fulfill all of the mitzvot, because eventually they will fulfill them and we must offer them this opening, and if they do not fulfill the mitzvot, they will bear their sins and we are free [of responsibility].
 
R. Uziel appears to maintain that although kabbalat mitzvot is undoubtedly an integral part of the conversion process and the convert must accept to fulfill all of the mitzvot, when the beit din is convinced that it is in the best interest of the family and of the Jewish People to convert the non-Jewish spouse, and the convert accepts upon himself the Torah and mitzvot, they are not concerned with whether or not the convert will actually observe the commandments.
 
            We noted that this approach is shared by other Sephardic decisors, such as R. Eliyahu Chazan (Neve Shalom, Minhagei No Amon, YD, Dinei Gerim 2), R. Refael Aharon ben Shimon (Nahar Mitzrayim, Hilkhot Gerim, p. 111), and R. Moshe HaKohen (Ve-Heshiv Moshe, YD 51). R. Yosef Messas attests that it is customary “in the Western cities, including the cities of Algeria and Tunis,” to accept “anyone who comes to convert” (Mayim Kedoshim, YD 108; see also Otzar Ha-Mikhtavim 765). See also R. Chaim David Ha-Levi (Aseh Lekha Rav 3:29), R. Ovadia Hedaya, (Yaskil Avdi, YD 16) and R. Chaim Amsalem (Sefer Rei’ach Nicho’ach, regarding R. Yachia Benharroche [Morocco, d. 2000]). This appears to have been the approach of numerous Western and Eastern European courts as well. It seems that these authorities believe that the validity of the giyur is dependent upon following the proper procedure and the beit din’s decision to accept the convert.
 
            This week, we will present another contemporary approach to kabbalat mitzvot.
 
R. Chaim Ozer Grodzinski – Achi’ezer
 
            R. Chaim Ozer Grodzinski (1863 - 1940), a leading rabbinic judge and posek in 19th–20th century Lithuania, formulated his approach to converting non-Jewish spouses in a well-known responsum that has since served as the legal precedent for both lenient and strict batei din over the past century.
 
            In the winter of 1911-1912, R. Grodzinski was asked regarding a Jewish man who returned to Europe from America and had been civilly married to a non-Jewish woman. The couple was apparently prepared to pursue a Reform conversion if an Orthodox beit din would not convert the woman. It was clear to the rabbis that the conversion was “for the sake of marriage” and that the women would “not observe the laws of Israel after the conversion.”
 
            R. Grodzinski, in his Achi’ezer (3:26), relates to three separate questions.
 
            First, he discusses whether, after converting, this couple would be permitted to be married. The mishna (Yevamot 24b) appears to prohibit marriage in these cases:
 
One suspected by others of engaging in sexual relations with a Canaanite maidservant and she was later set free, or one suspected of relations with a gentile woman and she subsequently converted, may not marry. But if he did marry her, they [the judges of the court] do not remove her from him [i.e., they do not require him to divorce her.]
 
The gemara explains the reason for this prohibition:
 
If so, [why is one suspected of relations with such a woman not permitted to enter into marriage with her] ab initio as well? Due to the statement of R. Asi. As R. Asi said with regard to such cases: “Put away from yourself a twisted mouth, and perverse lips put far from you” (Mishlei 4:24).
 
The Talmud explains that if the couple were to marry, they would give substance to the prior suspicions. R. Grodzinski notes that the Rishonim disagree as to whether we are concerned that the initial rumor regarding their relationship was true (Rashi, ibid. s.v. lo), or whether we fear that people may think that that she only converted due to their illicit relationship (Rashba, ibid. s.v. ve-akshinan). The Shulchan Arukh (EH 11:5) codifies this law.
 
            In the case at hand, in which the couple is already civilly married, Rashi would not object to the conversion and subsequent marriage. However, it appears that the Rashba would object to this relationship, as the conversion itself would be scrutinized. Elsewhere (Teshuvot Ha-Rashba 1:1205), he writes that it would be “mekhu’ar” (repulsive) for the man to marry the Canaanite slave with whom he had relations before the conversion. R. Grodzinski rules, initially, that the marriage itself would be prohibited.
 
            Second, R. Grodzinski relates to the conversion itself and, more specifically, to conversions performed for the sake of marriage. R. Nechemia and the Rabbis (Yevamot 24b) disagree regarding the validity of a conversion performed for “impure” motivations. R. Nechemia maintains that conversions performed for personal benefit, as well as those that were coerced, are invalid. The gemara concludes, however, that “the halakha is in accordance with the statement of the one who says that they are all converts.” What is behind this seemingly fundamental debate between R. Nechemia and the Rabbis?
 
            R. Grodzinski suggests that all agree that the foundation of conversion is one’s intention, and that a conversion must be performed whole heartedly, “be-lev shalem.”  He suggests that R. Nechemia and the Rabbis disagree as to whether we must assume that one who converts for ulterior reasons did not whole-heartedly convert. He writes:
 
According to R. Nechemia, geirut is dissimilar to other legal acts, as the kabbalat ha-mitzvot itself and the conversion is in one’s heart, and as long as he converts without a full heart, he is not considered to be a convert.
 
The Rabbis, in contrast to R. Nechemia, understand that one’s primary motivation for converting does not necessarily impact upon his ability to accept upon himself to fulfill the mitzvot. Therefore, in the absence of an “umdena de-mukhach,” i.e., overwhelming circumstantial evidence, that he converted for the sake of marriage, his status is in doubt (safek).
 
            In other words, all agree, according to R. Grodzinski, that conversion performed for the sake of marriage is invalid. R. Nechemia, however, believes that unless it is clear that the conversion was for the proper reasons, the conversion is invalid, while the rabbis maintain that the conversion is recognized out of doubt unless the true reason for the conversion becomes evident.
 
            This approach appears to have been previously articulated by R. Yitzcḥak Schmelkes (Galicia, 1828–1906) in his Beit Yitzchak (YD 2:100). He writes:
 
Regarding the matter itself, that if a proselyte converted for the sake of some benefit, the law is that they are all proper converts – the Ritva writes in the name of the Ramban that the reason is that since they converted and accepted [the mitzvot] upon themselves, the presumption is that because of their compulsion, they decided to accept [the mitzvot]… This proves that in any event they must accept the mitzvot with a genuine heart. This is not the case when a person converts only on the outside, but his heart is not with him to maintain observance of the mitzvot, and we know that he intends even afterwards to have relations with a menstruant woman, to profane the Sabbath, and to eat non-kosher food. His conversion is not valid, and the idea that "thoughts of the heart are of no consequence" does not apply… For it is different there, when it is an interpersonal matter… and in interpersonal matters, thoughts of the heart are of no consequence. This is not the case where a proselyte converts and accepts upon himself the yoke of mitzvot. If in his heart he has no intention to observe them, the Merciful One seeks the heart, and the conversion is invalid.
 
R. Grodzinski disagrees with R. Shmelkes’ position regarding the scope of kabbalat ha-mitzvot, but he appears to fundamentally agree with his understanding of conversion.
 
            R. Moshe Feinstein also appears to accept this approach. In an early responsum, (Iggerot Moshe, YD 1:157), he writes:
 
Regarding the matter about which you were in doubt, whether a proselyte who failed to accept the mitzvot is regarded as a proselyte – it is clear and simple that he is not at all a proselyte, even bedi'eved, and so ruled my father and master ztz"l, in actual practice… Even if he states that he accepts the mitzvot, if we are witnesses [anan sahadi] that he is not truly accepting [the mitzvot], it is nothing. The case of conversion for the sake of marriage that is valid bedi'eved is where for the sake of marriage he truly accepts upon himself the mitzvot.
 
R. Feinstein repeats this numerous times (see also Iggerot Moshe, YD 3:106).
 
            Most Acharonim reject this understanding and rule that even a conversion performed for marriage is considered to be valid.
 
            Third, R. Grodzinski insists that in the case under discussion, the kabbalat ha-mitzvot is valid. He notes that the Ritva (Yevamot 24b), citing the Ramban, explains that in this case, “due to his duress, he accepts the mitzvot completely.” In other words, although he accepts upon himself to perform the mitzvot because he wishes to marry, his acceptance is considered to be full and valid. He calls this “ones ha-ratzon.”
 
            R. Grodzinski questions how one who converts with the intention to marry, which in this case, as demonstrated above, is prohibited, can be considered to have converted whole-heartedly. The Talmud (Bekhorot 30b) insists that “If a gentile comes to convert and takes upon himself to accept the words of Torah except for one matter, he is not accepted. R. Yosei, son of R.Yehuda, says: Even if he refuses to accept one detail of rabbinic law, he is not accepted.”
 
            R. Grodzinski then formulates the following approach to kabbalat ha-mitzvot:
 
It appears that this law – that if a non-Jew who wishes to become a proselyte accepts all the mitzvot except for a single detail of rabbinic law, we do not accept him – only applies where he stipulates that he does not accept [that one detail] and that it should be permitted to him by right. In such a case, we do not accept him, for conditions may not be attached to conversion, and there is no half conversion. If, however, he accepts upon himself all the mitzvot, but he intends to violate [a certain law] to gratify his appetite (le-te’avon), this is not regarded as a deficiency in his acceptance of the mitzvot.
 
R. Grodzinski adds, however, that “if it is clear that he will certainly violate Torah laws, such as violate the Sabbath and eating non-kosher foods, then we clearly know that his intention is not to convert whole-heartedly.”
 
            He therefore concludes, initially, that “a beit din kasher” should not perform this conversion, since the person’s intention is for marriage, and therefore even after the conversion they couple may not be married. He further insists that we should not be concerned that the couple will turn to a Reform court, as “a proper beit din should only act in a manner which is prescribed by the posekim.”
 
            Interestingly, under Tsarist law, only religious marriage was accepted by the government. However, after the Bolshevik revolution, the Bolsheviks replaced religious marriage with civil marriage. In light of this change, R. Grodzinski added an addendum to his responsum:
 
After the revolution which occurred during the great war, during which conversion was permitted by law as well as civil marriage, I have been asked numerous times regarding a non-Jewish woman who is civilly married to a Jew and who wishes to convert and to be married with a chuppa and kiddushin, and they express their intention to raise their children according to the Jewish religion, and they also say that if the beit din will not permit her to convert, her husband will renounce his religion.
 
He cites R. Shlomo Kluger (Galicia, 1785-1869), in his responsa Tuv Ta’am Ve-Da’at (230), who responded to a query from Western Europe regarding a Jewish soldier who returned home with a non-Jewish partner. The non-Jewish woman requested to convert. R. Kluger relates that the soldier’s father attested that if she would not be permitted to convert, “he will return with her to her religion and her home.” R. Kluger ruled that it is permitted to convert this woman, as we are concerned that if we do not allow the women to convert, he will “go off to evil ways” (tarbut ra’ah). R. Kluger explains that since there is no external impediment to their union, and given that the non-Jewish woman desires to convert, that is considered to be “for the sake of Heaven.”
 
            Similarly, R. Grodzinski concludes, based upon R. Kluger and the precedent of the Rambam (Teshuvot, Blau 2:221), that “there is therefore room for leniency, in accordance with the view of the beit din, and to rely upon the ruling of R. Shlomo Kluger.” 
 
            R. Avraham Dov-Ber Kahana Shapiro (Kovno, 1870–1943), in his Dvar Avraham (28), appears to accept R. Grodzinski’s premise, yet maintains that nowadays, since a couple can be civilly married, we can no longer assume that the convert’s kabbalat mitzvot is whole-hearted despite being coerced.
 
            R. Grodzinki’s approach to kabbalat ha-mitzvot – that the awareness that he will be unable, or unwilling due to his desires, to fulfill some of the mitzvot does not undermine the kabbalat ha-mitzvot – was accepted by numerous Poskim. For example, R. Isser Yehuda Unterman (1886-1976), Israel’s Ashkenazi Chief Rabbi from 1964–1972, accepts the view of the Achi’ezer. He writes:
 
From all of this it appears when approaching conversion, the proper policy regarding kabbalat mitzvot is that when it appears to us that he genuinely (be-tom lev) accepts upon himself to fulfill the mitzvot, this is a proper acceptance, and there is no need to exhaust him with questions... And according to the Achi’ezer, even if his intention is to violate [certain mitzvot] due to his desires, this does not undermine the kabbalat mitzvot.
 
Similarly, his predecessor, R. Yitzchak Ha-Levi Herzog (1888-1959), first Ashkenazi Chief Rabbi of Israel (Heikhal Yitzchak EH 1:9), invokes the rational of the Achi’ezer. (See also R. Yehuda Herzl Henkin, Bnei Banim 2:36, and R. Moshe Ha-Cohen Driham, Ve-Heshiv Moshe, YD 50.)
 
            In summary, R. Grodzinski, and other Acharonim, maintain that the validity of the conversion is dependent upon the convert genuinely and whole-heartedly accepting upon himself to fulfill all of the mitzvot of the Torah. Of course, as it is impossible to know what is in the heart of the convert, conversions performed for the sake of marriage are generally considered valid, although suspect. However, he leaves room for great leniency, as according to his opinion, if the convert does not intend to fulfill certain mitzvot due to his urges (le-te’avon), the conversion is still valid. Some Acharonim disagree and maintain that the convert’s intention not to fulfill certain mitzvot undermines the kabbalat mitzvot and the validity of the conversion.
 
            We will continue are discussion of the kabbalat ha-mitzvot next week.