Herem de-Rabbeinu Gershom and Get-Refusers (Column 433)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

In the previous column I discussed the duty of disclosure between spouses and noted that the rabbinate’s conservative policy is a central part of the problem I described there. This reminded me of another conservative and problematic approach of the rabbinate that surfaced following the marriage of the singer and actor Shuli Rand to media personality Tzofit Grant, which I wish to address here.

Background: Ḥerem de-Rabbeinu Gershom and the “Hundred-Rabbis Permit”

By strict law, marriage restricts only women and not men; that is, a married woman cannot marry another man, but a married man can marry additional women at will.[1] Moreover, a married man does not actually need such a license, for he can divorce his wife against her will even if she does not wish it. These are two advantages that men have over women. Under what is called the Ḥerem (ban) of Rabbeinu Gershom (ḤeDRG), a step was taken to equalize women to men on these two fronts: the ban decrees that a man, too, may not take another wife in addition to his first. In addition, the Ḥerem of Rabbeinu Gershom also forbids divorcing a woman against her will. The situation is still not entirely symmetrical, since the ban is at most a rabbinic prohibition (arguably not even that), and therefore a man who violates it by divorcing his wife against her will or by taking an additional wife may transgress a prohibition, but his act is legally effective. The prohibition he violates by having relations with his second wife is at most rabbinic—if at all. Thus, in practice, even today women are bound by marriage far more than men are.

A “get-refuser” (sarvan get) is someone who refuses to give his wife a bill of divorce (get), thereby de facto chaining her. He binds her to him and prevents her from remarrying, even if he does not live with her and even if she does not wish to live with him (and even if he too does not wish to live with her). A woman in such a situation is a mesorevet get; but due to common parlance today she is often called an agunah (originally, an agunah is a woman whose husband disappeared and it is unknown whether he died and where). After the ḤeDRG, there also arose cases of men “refused” a get, for if the woman refuses to accept a get it is impossible to divorce her against her will (the second aspect of the ḤeDRG), and in that situation one also cannot take another wife in her stead (the first aspect).

From time to time data are published regarding get-refusal, and they indicate that the number of female refusers (women refusing to accept a get) is higher than that of male refusers. Many argue, based on these figures, that there is bias in public discourse, which focuses on male refusal and on women’s misery. But even if that number is correct (and not everyone agrees), even after the ḤeDRG the situation is not symmetrical. A woman refused a get cannot remarry, and sexual relations she has are a severe prohibition of forbidden relations (ervah) and render her children mamzerim. By contrast, a husband who is “refused” may take another wife, and his relations with her will be, at most, a minor prohibition. As we shall see below, he can also obtain a “Hundred-Rabbis Permit” (heter me’ah rabbanim) to override the ban and marry a second wife—an option that of course does not exist for women.

Rand’s Marriage

Some time ago, Tomer Persico commented on Rand and Grant’s marriage, expressing the discomfort many in the public felt about this situation. Many raised the claim that the solution found for Shuli Rand as a man “refused” a get could not help women in his situation. They cannot obtain a Hundred-Rabbis Permit and remarry without a get, and if they do so privately the state will not recognize it (since marriage law here follows halakhah); their children would be mamzerim, and they themselves would be violating a very severe prohibition. Hence, despite the joy many felt at Rand’s extrication from his wife’s refusal, it was hard for them to rejoice when many women in Rand’s situation remain stuck without a parallel solution. The claim is that a parallel solution should be found for women as well.

Some have argued that if such a solution cannot be found for women, it should not be allowed for men either. Despite the halakhic asymmetry, Israeli law espouses the principle of equality. Such a remark appears in a response to his words there:

It would be fitting for Tzofit Grant, who purports to be a feminist, to say: “I am not willing to cooperate with this contemptible institution that does not allow chained women to free themselves but allows a man to take two wives.”

In my opinion, that is untenable. The very institution of marriage is not egalitarian—does the commenter contend that women should therefore refrain from marrying?! By the way, this was precisely the claim made by Rivka Lubitch in an article to which I responded in Akdamot. As I explained there, from a secular perspective one could of course say such a thing; but from a religious perspective this is absurd. Likewise, one could argue that when kiddushin are annulled for a woman, she ought to forego it and remain an agunah of her own accord because there are others for whom kiddushin were not annulled. That sounds absurd. No one should decree misery upon themselves without need merely because others are miserable. If one’s action contributes to saving them—fine. But to make oneself miserable solely to equalize one’s situation with that of others strikes me as unreasonable.

Indeed, another commenter there argued:

As someone who has long been active on behalf of mesoravot get and agunot, I did not understand your claim. Is it proper, in your view, to wrong men who are “refused” because of the wrong done to women who are “refused”? (Two wrongs don’t make a right)

This is, in my view, a very correct argument, except that it is irrelevant to Persico’s words. He wrote that a similar solution should be found for women; he did not call to shackle men.

Two Parallel Tracks

I read in Wikipedia (note 4 there) a statement by Rabbi Eli Ben-Dahan, formerly of the Chief Rabbinate, that a Hundred-Rabbis Permit to take another wife because of a woman’s get-refusal is granted roughly eleven times a year. This strengthened a thought that occurred to me upon reading about Shuli Rand’s case: that this is a very strange and illogical practice.

Instead of permitting such a man to take two wives, it would be preferable to permit him to divorce his wife against her will. Both are, in principle, permitted by strict law, and the source of the prohibition is only the ḤeDRG. I do not think one is inherently preferable to the other, but there certainly is a preference for a situation in which each person is married to a spouse he desires over a de facto bigamy in which a man is married to two women simultaneously—especially when he does not want one of them. True, this is not a solution for women who are refused, but under the existing halakhic constraints I think this is a far more reasonable policy.

It is customary to use the Hundred-Rabbis Permit only for taking a second wife, but there is no necessity for that. The Chief Rabbinate, in its sanctified fossilized fashion, clings to custom and does not dare touch it; its conservatism and ossification repeatedly create problems of its own making instead of solving them. Thus, for example, their insistence in most cases not to compel a get forcefully, and certainly not to annul kiddushin in cases where that is entirely possible, results in “bound” spouses seeking their bread in forbidden domains. This creates de facto bigamy by the man who lives with another woman (incidentally, this bigamy is recognized by law through the “common-law spouse” mechanism, which under Israeli law makes her, for all intents and purposes, a second wife) and also mamzerut and forbidden relations for the woman who lives with another partner without divorcing her first husband. The desire to prevent problems by conservative means creates far more serious problems, and there are many more examples.

I am sure many readers will think that even if I am right, there is a formal problem: the Hundred-Rabbis Permit was not instituted to suspend the ban on divorcing a woman against her will, but only the ban on taking two wives. I assume this underlies the rabbinate’s policy of preferring the one over the other. But as I will now explain, this claim is mistaken for several reasons.

Can the Hundred-Rabbis Permit Be Applied to Divorcing a Woman Against Her Will?

First, it is not at all clear that the Hundred-Rabbis Permit was part of the original enactment. Many hold that it is a later allowance, based on the rule that a court greater in wisdom and number is needed to annul the words of a prior court (an original principle that pertained only to enactments and decrees of the Sanhedrin). Thus, for example, the Netivot ha-Mishpat (in Naḥalat Ya’akov, responsa section, §5) writes that the Hundred-Rabbis Permit is not part of the original ban itself, and can therefore be applied to any ban and enactment of its kind. In Responsa Maharam Schick, Even ha-Ezer §4, he writes that this is a general principle applicable to exceptional cases in which the rationale of the original enactment has lapsed. According to the Rambam’s view (Hilkhot Mamrim ch. 2), even then one needs a court greater in wisdom and number to annul it; but Maharam Schick writes that one can annul it temporarily also by means of a Hundred-Rabbis Permit. According to his view as well, this can be applied to the prohibition of divorcing a woman against her will. If so, just as this permit is applied to the ban on taking two wives, there is no impediment to applying it to divorcing a woman against her will.

Moreover, the primary and earliest source from which it appears that the Hundred-Rabbis Permit was part of the original ban is the Mordekhai on Yevamot, “Ha-Ḥoletz,” §108. According to his view, it would seem that it cannot be applied to divorce against the woman’s will. But a close reading of his words there implies quite clearly that the Hundred-Rabbis Permit was stated regarding all the enactments of the ḤeDRG and not only regarding the permission to take a second wife. If so, it follows that even according to his view the permit can be applied to divorcing a woman against her will.

Furthermore, logic dictates that the ḤeDRG was imposed on the individual—that he not take two wives and not divorce his wife against her will. But if a court finds it proper to divorce a woman against her will and the person acts under the court’s aegis, there is no reason to forbid it—certainly not to place him under a ban. On the contrary: Rabbeinu Gershom surely intended to mend, not to mar (one might address him with the claim “I do not consent to the sages’ enactment” in this case). Admittedly I noted that the ḤeDRG requires a Hundred-Rabbis Permit, and if a single court’s permission were sufficient there would seemingly be no need for a hundred sages. But this can be countered: the Hundred-Rabbis Permit concerns allowing an individual to divorce his wife against her will or to take another wife. If a court itself instructs them to do so, there is no need for the consent of another hundred sages. On second thought, this may be why the Hundred-Rabbis Permit is mentioned mainly regarding taking a second wife and not regarding divorcing a woman against her will: divorce is usually done in court, and where the court instructs him to divorce, there is certainly no need for a Hundred-Rabbis Permit. Kiddushin are performed without a court (even a marriage officiant is not a halakhic requirement). Consider: in cases where the court deems it proper, it compels the husband to divorce his wife against his will. All the more so that in cases where it deems it proper it would compel the woman to accept a divorce—since by strict law she can be divorced against her will in all cases. And rather than coercing her physically, coerce her by imposing divorce against her will. To my mind this is simple, as plain as an egg.

Beyond all this, if indeed the Chief Rabbinate regards itself as the central halakhic authority of all Israel, as they and their supporters repeatedly claim, then we have in our time a new situation in which a central halakhic authority has returned to the people of Israel—truly the beginning of redemption. If so, it follows that they should be able to annul this ban themselves, certainly if it is a local annulment of the ban for a specific case. In the sixth part of my book Maḥalakhim Bein ha-Omdim I argued that any rabbinic law can be temporarily suspended by the sages of the time if they see fit, and I proved this from the Rambam (Hilkhot Mamrim ch. 2), even regarding a law set by the Sanhedrin and covered by “Do not deviate.” All the more so regarding laws established by custom or by bans of sages after the Talmudic era—there is certainly room to do so.

In addition to all of the above, I would like to take the opportunity to comment on communal bans (ḥerem) in general.

A Look at Communal Bans and Their Meaning

The concept of ḥerem is quite vague—both in Talmudic literature and in the decisors. When is a ban imposed, and on what, and by whom? Who imposes it and under what circumstances? Upon whom does it fall, and who is bound by it? How is it annulled? Above all, the concept creates complete anarchy, for any person (certainly any sage) can excommunicate people or groups at his discretion, and now this binds the entire public, including those who do not agree with him—and even in circumstances where it is no longer relevant. One can find highly elaborate halakhic “fences” regarding bans, but almost all of them are inventions and reasonings of various decisors and commentators.

We find in halakhah bans upon blasphemers, false oaths, disparaging a Torah scholar, and much more. All these are ordinary bans imposed on a person who has done a deed warranting a ban. But there is another type of ban that is, in effect, a different mode of enacting an ordinance or decree. The sages establish a prohibition on some action by declaring a ban upon anyone who will perform it in the future. The ḤeDRG is of this kind, of course. These bans are called by the early authorities “communal bans” (ḥarmei tzibbur) or “community bans” (ḥarmei kahal) (see a survey in the Encyclopedia Talmudit, entry “Cherem (Harmei Tzibbur)”). I will not enter the details here, which are complex and highly disputed; I only reiterate that there is a sense they are set by sages according to what seems reasonable to them in context, not from solid sources. That itself demands explanation and indicates that we too are called to do likewise.

The question of the status of such a ban (and its relation to oaths, imprecations, and curses)—for example, whether it is a biblical law, a “words of Kabbalah” law, or rabbinic—is disputed among the early authorities. Some rishonim and aḥaronim wrote that such a ban means that one may place a person under ban; it does not mean he is automatically banned. In any case, according to these views, one must actually place under ban a person who violated it in order for him to be considered banned. Some wrote that it depends on the wording in which the ban was formulated, which we likely do not possess regarding the ḤeDRG.

Above all, bans can be annulled in several ways. Many decisors wrote that they can be released by a sage like a vow or an oath. Others wrote that the community can release them even without the laws of releasing vows (“the mouth that forbade is the mouth that permits”). Some rishonim wrote that a community can annul the ban even if its underlying rationale has not lapsed (see Shulḥan Arukh, Yoreh De’ah §228:27, citing Responsa Rashba), and even within the term initially set for the ban (see the Rashba there, and the Shakh ad loc. n. 82). Incidentally, several early authorities wrote that Rabbeinu Gershom’s ban was until the end of the fifth millennium and therefore lapsed long ago; and even according to those who hold it continues, some wrote that today there is no need for a Hundred-Rabbis Permit. Thus, regarding the ḤeDRG it is not at all clear that we are still “within the time.” And the Rivash (§185) wrote that one need not provide a rationale for annulling the ban. The very community that imposed it can annul it. Certainly, if there is agreement of the sages of Israel or a central body representing them, there is no impediment to annul the ban when they find it proper—especially if it is only for a particular case. Common sense dictates that if a hundred sages can permit the act that the ban forbids, they can also annul the ban. The decisors further wrote that a majority of the community suffices; unanimous consent is unnecessary. In particular regarding permitting divorce against the woman’s will, several decisors wrote that a hundred sages are not required to permit it, since it is lighter than taking a second wife (see Encyclopedia Talmudit, “Ḥerem de-Rabbeinu Gershom,” notes 825ff.).

In short, I think you can see that there is no great difficulty in annulling this ban—certainly where the exigency of the hour requires it. To appreciate the flexibility and vagueness of bans, whose contours each sage sets as seems proper to him, I will bring a few examples.

Examples

Haredi leaders (the Ḥazon Ish and the Brisker Rav—R. Yitzḥak Ze’ev Soloveitchik) imposed a ban upon the building “Heikhal Shlomo,” the seat of the Chief Rabbinate in Jerusalem (it turns out their crystal-clear eyes saw far). Some people here and there still take care not to enter or use this building, but many fine people do not observe this at all—including the best of our Haredi youth (for a description of the current state, see, for example, here).

This is an excellent example of the flexibility of bans and their laws, and of the anarchy that can result from their use. Political reasons led some rabbis to impose a ban upon a move and institution that other rabbis saw as a mitzvah. Clearly, the basis of the ban was a political and ideological agenda not accepted by all. The imposition of the ban attempted to create facts that would bind everyone. But must we all now refrain from using the building because there were rabbis for whom that institution was an eyesore? That seems unreasonable. In principle, there is nothing to prevent Haredi sages from banning religious-Zionists, or vice versa; the hardline faction (ḥardal) could ban the “lites” (as they define them), and Beit Hillel could ban Beit Shammai, and vice versa. Must I keep my distance from religious-Zionist or Haredi Jews just because some rabbi or court decided to ban them? Everyone understands that such bans are ideological tools and should not be treated as halakhically binding.

Incidentally, until 1992 the Chief Rabbis sat in Heikhal Shlomo and were not overly troubled by the ban imposed upon the building (including the Great Rabbinical Court, in which, among others, R. Yosef Shalom Elyashiv z”l served). I recall that leaving the building was attributed, among other reasons, to the ban (from the time rabbis identified with or subordinate to the Haredim began serving). What is even more amusing is that from that year onward the Chief Rabbis indeed moved their seat elsewhere due to the ban, yet this did not prevent them from serving as Chief Rabbis. We must remember that the ban on the building was imposed because of the institution it housed (the Chief Rabbinate), and now there are those who are careful not to use the building but serve at the head of the very institution that it housed. Behold the pinnacle of the Chief Rabbinate’s conservative coherence.

In short, a ban is a matter of outlook. Rabbis who oppose something impose a ban; others who do not oppose it ignore the ban. The ḤeDRG is, of course, not of that family; but from these examples—and those to come—you can appreciate that the concept of ban is not as formally grounded as it is presented. Certainly, if a court sitting in the name of the majority of the public annuls a ban when the hour requires it, there is no impediment to doing so—especially if it does so only for a specific case.

Another example is the ban on Spinoza, which recently returned to the headlines. The rabbi of the Jewish community in Amsterdam forbade Prof. Yitzhak Melamed to research and make a film about Spinoza on the synagogue premises. Prof. Melamed is quoted as saying that he is amused by this ridiculous display of zealotry, given that the “zealous” community itself makes a living selling Spinoza souvenirs in that very synagogue. Again, the ban serves mainly for public relations—unsurprising, of course. Originally, the ban’s principal matter is public relations; I contend that our attitude toward it should be accordingly. Thus, for example, if in my opinion there was no place to ban Spinoza, I see no prohibition upon myself to study his writings. And what of the “laws of the ban”? We already said these are laws that common sense should shape. It cannot be that some sages’ agenda, however important they may be, dictates to me what to study and how to serve God.

Speaking of “forbidden” philosophy, who can forget the Rashba’s ban on engaging in philosophy before the age of twenty-five? Did everyone in all generations observe it? Obviously not. Those who think philosophy is harmful and bad cite the Rashba and rely on him (though he too forbade it only until age twenty-five), and those who think it is an important, beneficial, and desirable pursuit simply ignore him. I have not heard that anyone performed a formal release of that ban, or that at least the descendants of Spanish Jewry observe it.

Perhaps first among all is the excommunication imposed on R. Eliezer following the “Oven of Akhnai” controversy. The Talmud itself tells that his students came to him—thereby violating the excommunication (which was released only on the day of his death). Moreover, R. Eliezer himself complains that apart from R. Akiva, his other students did not come to him until the day of his death (when the Talmud describes a visit by all the sages). Beyond that, the Gemara in Ḥagigah 3b also describes a visit by a sage from among his students to R. Eliezer, who was sitting in excommunication in Lod. How did those sages permit this to themselves? I did not find an explanation (to be fair, I did not look very hard), but I gather that even then it was clear that this was a pedagogic excommunication, and therefore if there is good reason to violate it—one does.

Incidentally, regarding communal bans in general, some decisors (see Encyclopedia Talmudit, entry “Cherem (Harmei Tzibbur),” n. 32) wrote that they are not really bans but rather language intended to strengthen a prohibition. But there is no obligation to treat violators with formal ban or excommunication. In light of what I have described, the situation seems even more far-reaching. Essentially, the term “ḥerem” comes to express the severity of the act prohibited, but not necessarily as a binding halakhic statement—certainly not if I myself do not identify with that ban.

In general, it has already been noted that the mechanism of the ban served Jewish communities in the Diaspora when it was impossible to conduct matters centrally. But today, when many claim there is a central authority, there is no reason to use this tool; it would be proper to remove it from the world and abolish bans as a general matter wherever possible. In my opinion—even absent such an authority—it would be proper to dispense with it. It is an outdated social tool whose time has passed.

A Note on Claims of Discriminating Against Women

I have written more than once that halakhah is not gender-egalitarian. Halakhah does indeed discriminate against women in many cases, though there are also cases where it discriminates against men. In any case, clearly halakhah is not egalitarian. Now, around the discussion of Shuli Rand’s case, claims are being made that go further than halakhic discrimination against women. Thus, for example, Persico writes in his article cited above:

If Shuli Rand were a woman, he would be stuck. And if men were the ones stuck, I promise you, a halakhic solution would descend from heaven. But only women are stuck, so the rabbis are chill. And Israeli law allows this vile discrimination.

That is, of course, nonsense. Clearly there is halakhic conservatism in the rabbinate, but I do not think there is essential anti-female discrimination there. Were halakhah to require keeping men agunim, they would do so to men as well. There are quite a few male get-refusers and they do not have more solutions than women. The permission to take another wife is rare.

Persico assumes that decisors can do whatever strikes their fancy; not so. The latitude is far greater than what the rabbinate’s policy reflects, but I do not get the impression that they care more for men than for women. The principal asymmetry has its source in halakhah, not in the rabbinate. There is room to criticize the rabbinate for doing almost nothing to correct injustice and minimize, as much as possible, this asymmetry—even where it can within halakhah. But one must honestly admit: the rabbinate is not the source of the discrimination.

Consider the following examples: Are issues of mamzerut for men solved more far-reachingly than those of women? Do kohanim get solutions that allow them to marry divorcées? Note that kohanot (female descendants of priests) may marry divorcés; here the halakhic asymmetry favors women. Why don’t these rabbis already find solutions for these unfortunate men?! And what about solutions for gay men? As is known, here too women enjoy halakhic “preferential treatment” (lesbian relations are a far lighter prohibition).

In short, criticism of halakhic conservatism is justified, but Persico and his likeminded colleagues think that conservatism is applied selectively to women; in my estimation, that is simply untrue. The asymmetry between women and men is dictated by halakhah, not by the rabbinate, and the rabbinate’s conservatism merely entrenches it (but does not create it). As we have seen, in certain cases the preferred treatment in halakhah is actually for women. I can accept the claims of a secular person who protests against halakhic inequality—and certainly if he protests its incorporation into Israeli law and its imposition on secular people. But the claim that this is a rabbinic conspiracy seems to me baseless.

[1] I believe I have noted in the past that it is not entirely clear this is discrimination against women. Every prohibition on a relationship between a man and a woman is symmetrical. When a divorcée is forbidden to a kohen, the kohen is likewise forbidden to the divorcée. When a married woman is forbidden to another man, that other man is likewise forbidden to the married woman. From this perspective there is no true difference between men and women in terms of the halakhic attitude toward them. Well, one can of course split hairs on this point.