My apologies.
I’m posting the full article.

Cancel the Blacklist | Rivka Lubitch
Posted by the "Shabbat" editorial staff
Instead of reducing the list of mamzerim in Israel, the rabbinical courts, under state sponsorship, continue to add names to it. The time has come to free ourselves from this moral wrong.

The problem of mamzerut seems to be the greatest moral challenge in Judaism, since mamzerim are punished for their parents’ sin through no fault of their own. Ostensibly there are commandments in the Torah that are even more morally challenging, such as the laws of wiping out the memory of Amalek, stoning Sabbath desecrators, the rebellious son, or burning the daughter of a priest who committed harlotry; however, the Sages found ways to bypass these commandments and empty them of practical content, and so they remain merely theoretical challenges. That is not the case with the question of mamzerut, which is valid and operative to this day.

A “mamzer” or “mamzeret” is someone born as the result of sexual relations forbidden by the Torah, except for a menstruating woman, whose children by her husband are not mamzerim. This category includes relations between relatives forbidden by the Torah in sexual closeness (“forbidden unions”), as well as relations between a married woman and a Jewish man who is not her husband. Mamzerim are not permitted to enter the congregation of Israel for all generations.

In practice, the halakhic restrictions apply mainly in the areas of marriage and burial. Mamzerim are permitted to marry other mamzerim like themselves and converts, but not those considered part of the “congregation of Israel.” Their children and descendants forever are also mamzerim and subject to the same restrictions. The stain is irreversible, and that is why it is so threatening. Although the Sages in the Talmud instructed that a learned mamzer should be honored even more than an ignorant High Priest, the accepted public attitude toward mamzerim is one of ostracism, as a senior official in the rabbinical court once said to me: “Would you let your child play with a mamzer child?! Would you let your child sit in school next to a mamzer child?!”

Illustration: Naama Lahav

Preserving the Prohibition While Narrowing It

On the subject of mamzerut, Jewish law speaks in two voices. On the one hand, the view is widespread that “there are no mamzerim in Israel,” because the Sages do everything to “save” children from the fate of mamzerut. And indeed, over the generations various methods developed, as we shall see below, to prevent mamzerim. On the other hand, the use of the threat of mamzerut remained a powerful tool for controlling the woman’s body and preserving the social order, and the Sages did not abolish it entirely as they did, as noted, in other cases.

One creative way intended to validate children against mamzerut and spare them a cruel fate is the Talmudic ruling: “Most acts of intercourse are presumed to be with the husband” (Hullin 11b). That is, even when there is concern that the child was fathered by another man, the child is attributed to the woman’s husband and thus remains within the family. In the old world, this ruling benefited all sides: the child gained a roof over his head, the woman’s secret was kept, the husband was not disgraced, and the man with whom adultery was committed did not have to support the child. Other laws intended to reduce cases of mamzerut are the rule “there is no mamzerut among gentiles” (Shulchan Arukh, Even HaEzer 4:19), referring to a case in which the man with whom the woman committed adultery is not Jewish, and the rule “a married woman is not believed to disqualify her son” (ibid. 4:29), which prevents mamzerim in cases where the testimony comes from the woman.

Additional halakhic rulings stretch reality to the limit. For example, if the husband was absent from home for a long period and the woman gave birth during that time, the Talmud rules that a fetus can remain in its mother’s womb for as long as twelve months. Likewise, if the husband disappeared for a long period and returned home, and the woman gave birth four months after his return, the Talmud rules that a fetus can also be born after four months (ibid. 4:14). The Talmud even posits supernatural situations, such as the husband “coming by means of the Divine Name,” that is, appearing miraculously (through the Divine Name) and having sexual relations with his wife even while they were far apart—provided that the child born not be stained with the stigma of mamzerut.

Alongside rulings that reduce the actual existence of mamzerim, Jewish law gives a husband the power to declare that a child born to his wife is not his son, thereby rendering him a mamzer. This law is called the “law of yakir” (based on the passage in Kiddushin 78b). To limit the unrestricted power this law gives a husband to harm his wife and her child, it was determined that the husband may not make a “yakir” claim unless he did so at the first opportunity he had, for example at the beginning of the pregnancy. Another way to neutralize the power of “yakir” is the argument that the husband is trying to evade his obligation to support the child, and therefore should not be believed.

The laws of mamzerut are extremely severe and cruel toward the offspring for all generations. The Talmud in tractate Kiddushin (71a) states that in the future mamzerim will be purified, and also adds: “A family that has become assimilated has become assimilated,” instructing that one should not investigate and dig around to locate mamzerim. It even recommends that mamzerim move to another city so they can assimilate more easily. Thus the halakhic duality seeks, on the one hand, to preserve the threat in order to maintain the social order—but at the same time tries to minimize its practical use as much as possible, so as not to increase injustice toward those who have not sinned.

A Threat to Society as a Whole

Since 1979, the State of Israel, under the directive of the Attorney General, has maintained a computerized database of those disqualified from marriage and those whose marriage is delayed, known as the “blacklist,” to which there is no access. It was compiled from lists held by the rabbinate and the religious councils as far back as the 1950s, and includes thousands of names, among them several hundred listed under the category of “mamzerim” or “requiring clarification regarding mamzerut.”

Besides them, there is a very large group, whose size cannot be estimated, of those “threatened with mamzerut”—thousands of men and women who are not on the list of those disqualified from marriage, but over whom hangs the threat that if they approach the rabbinate seeking to marry, they will be entered on the blacklist. This includes all descendants of those already on the list of those disqualified from marriage, the children of a woman born less than 300 days after her divorce when the ex-husband is not listed as their father and the father is unknown, and more. When a person approaches a marriage registrar to register, his details and his parents’ details are checked, and if the father is not the mother’s husband, the registrar may send him for further clarification and deeper investigation.

The very fear of entering the list terrorizes many people. A parent’s thought that his or her son or daughter might enter the list of those prevented from marrying is paralyzing and affects the shaping of one’s life and choices. It has enormous consequences for the woman’s relationship with the child’s father, for the child’s relationship with his father, and for the true or false story on which the child will grow up regarding his origins and family.

Thus mamzerut becomes a threat hovering over the entire Jewish society. The threat of mamzerut is in fact at the basis of religion-state relations in the State of Israel, which granted the rabbinate exclusivity in the field of personal status because of the fear that “we will become two peoples who cannot marry one another.” The threat of mamzerut is also at the root of the problem of agunot and women denied a get, and it is the main factor that enables a husband to extort the woman in exchange for the get, because the woman desperately needs the get in order to continue her life. Even the law determining that civil marriages also require divorce in the rabbinical court rests on this concern (it is possible that in the future the judges will determine that even common-law couples or people who shared a room for a period will be required to regulate their personal status in the rabbinical court in order to prevent a situation of mamzerut).

In practice, the threat of mamzerut lies at the foundation of the entire field of personal status in the state, and receives legal backing. In addition, the fact that investigation of mamzerut and validation of mamzerim are reserved exclusively to the rabbinical court, which does its work in a confidential and vague way, gives the court tremendous power.

Life in Hiding

Following the rabbinate, the State of Israel adopted into law the Talmudic rule that “most acts of intercourse are with the husband.” Therefore it does not allow registration of the true father of someone born to his mother within 300 days of the divorce or while she was living separately from the husband (sometimes due to ongoing get-refusal), and insists on registering the husband as the father, even though everyone knows he is not the biological father, provided only that the child not be recognized as a mamzer. The Talmudic solution that was meant to ease things for the woman and the child has today become a new injustice—in many cases I handled, the child receives neither recognition nor support, neither from the registered father who does not acknowledge him (justifiably) nor from the biological father who denies him. In this way he is condemned, together with his mother, to a life of poverty and loneliness and to lack of identity and belonging. When he grows up, it may very well turn out that all this suffering was in vain, because when he comes to register for marriage he will ultimately be identified as a mamzer and become disqualified from marriage.

For the same reason, the state also refuses to allow a man, without authorization from the president of the Great Rabbinical Court, to perform a tissue test to determine the identity of the child’s father. But why should a court ruling have to be transferred at all to the rabbinical court? Why can one not rely on a clear ruling that a tissue test does not constitute a determination regarding mamzerut? After all, these children have no father; they are condemned to lives of poverty, and even the National Insurance Institute disowns them because there is no one against whom to file a child-support claim.

The mamzerim living among us have no voice; more than any other “others” in our society, they live in terrible loneliness and constant concealment. Phone calls I received from mamzerim in the course of my work at the Center for Women’s Justice were always from anonymous callers, who at times gave a false name and usually called from a blocked number. The words were spoken in whispers and fear, and for the most part they did not contact me again. Who will make their voices heard? Who will go out to demonstrate for them? They keep away from the media and zealously conceal their story, without sharing even with one another.

The fear is understandable; publicity may harm not only them but also their family and descendants. In addition, they know that in Jewish tradition the problem of mamzerut is solved on an individual basis, each case on its own merits, and therefore there is no benefit in making contact with other mamzerim in an attempt to solve the problem at its root.

It is therefore no wonder that public awareness of the problem of mamzerim is so negligible. The prevalent perception is that there are few mamzerim among us, and that the courts do everything to minimize the phenomenon, as emerges from Jewish sources. Yet experience shows the opposite trend: the courts carry out many inquiries and ask questions that expose many people to mamzerut, and they transfer names to the list even without the knowledge of the men or women suspected of forbidden sexual relations—in explicit contradiction to the Jewish law that says, “A family that has become assimilated has become assimilated.” The blacklist has become in our time a coercive tool that increases injustice rather than preventing it.

A Means of Oppressing Women

The suffering of mamzerut is not like suffering caused by fate, bereavement, or illness; this is suffering created and continuing to be created in the name of Jewish law and religion, and under legal protection. Its price is paid by children born into a situation defined as forbidden, without having sinned or broken the law. What kind of society are we, that allows such grave harm to those who have not sinned? What kind of religion do we have, that does not come to the defense of the weak but the opposite, abuses him? Who is our God, in whose name we allow injustice? What kind of democratic state have we built, that lends a hand to such blatant trampling of rights?

The threat to children is the ultimate threat against women, and therefore this is patriarchy in its purest form. The rabbinate’s waving of the threat of mamzerut is total control by the male establishment over female sexuality. Is this the reason we find it hard to see this as harm and insist on believing that they are “saving” the children? After all, if they wanted, the rabbis could act to abolish the blacklist rather than expand it, and propose comprehensive halakhic solutions to reduce the phenomenon.

For example: conducting kiddushin on condition, which would lead to annulment of the marriage in the event that a mamzer child is born; a solution for women through in vitro fertilization, which according to many rabbinic approaches stops mamzerut from continuing to future generations because there is no intimate relation; a general rabbinic decision (based on a tradition of rulings) that no testimony capable of “mamzerizing” a person should be accepted; a principled decision by the rabbis that all of us are presumed mamzerim, because the Jewish people went through enormous upheavals, great migration, and the Holocaust especially in the last hundred years, which increased the likelihood that most of the Jewish people are descended from mamzerut, and therefore the whole matter of mamzerut has passed from the world.

I appeal to the state, to the legislature, to stop cooperating with this oppression. As a religious woman I am ashamed that a comprehensive and absolute solution has still not been found for the issue of mamzerut; as a citizen of the State of Israel I am appalled that a democratic Western state stands behind the rabbis, backs them, and even assists them in maintaining a blacklist that casts fear over the entire public.

Rivka Lubitch is a rabbinical pleader on behalf of the Center for Women’s Justice and a member of Kolech.

Published in the “Shabbat” supplement of Makor Rishon, 26 Adar 5777, 24.3.2017

If that’s okay with you.

I read it quickly, and I’ll address a few points.
1. In the first part of the article there is a distorted interpretation (common in academia and liberal circles) according to which every rule stated regarding mamzerim is driven by overt or covert agendas. That is not so. True, sometimes there are formal mechanisms that seem contrary to reality (“came by means of the Divine Name” or a twelve-month pregnancy), and the tempting conclusion is that they were made in order to permit mamzerim. But as far as I’m concerned, these sources are very difficult, and I certainly would not add to them. If Jewish law determines mamzerut, you can’t bypass it unless the bypassing argument really holds water. An agunah woman too is not permitted on the basis of fictions. If we are convinced that the husband died, we will permit her even if the formal evidentiary requirements were not met (such as two witnesses). But one must be convinced the husband died. For me, the same applies to a mamzer. Only if there is real concern that he is not a mamzer can he be regarded as a possible mamzer. One may waive formal requirements, but the law itself remains in place.

There are cases where this is simply the author’s ignorance. For example, “most acts of intercourse are with the husband” is a true and correct rule. It was not invented as a fiction to prevent mamzerim. Sometimes its applications look fictitious, but in my view one should always seek an explanation showing that there is indeed real doubt about the mamzerut.
The same is true regarding the credibility of “yakir,” mamzerut from a gentile, and so on. All these are halakhic rules that do not necessarily express an agenda of permitting mamzerim.
The inability to say about one’s son after some time (on a second occasion) is a simple law and not a means of permitting mamzerim. If he was silent earlier, that is evidence that he doesn’t think so (or that there is less real doubt whether this is so, and a possible mamzer is not a mamzer).
Regarding “a family that has become assimilated has become assimilated,” this again is a silly mistake. This is an ordinary law of personal status and has nothing to do with permitting mamzerim. It doesn’t have the slightest connection to rabbinate policy. I don’t recall anyone ever deriving from this law a policy of deliberate concealment of mamzerut. If the family has become assimilated, then we do not worry. But who said it is permitted to assimilate it deliberately from the outset? On the contrary, the Sages elevated lineage and were stricter regarding mamzerut than the Torah law itself.
The claim that this is a tool of oppression against women and the female body is common feminist propaganda and nonsense. By the same token, it is oppression of the male body too. As our rabbis have already said, tango takes two (ibid., ibid.), and therefore the punishment of mamzerut troubles the woman no less than the man. Exactly the same. Indeed, a husband may have relations with an unmarried woman, and a married woman may not have relations with an unmarried man, but by the same token an unmarried man may not have relations with a married woman, and an unmarried woman may have relations with a married man. These prohibitions are symmetrical, and the threat of mamzerut harms women and men alike.

To sum up, the problem of mamzerut is indeed a difficult practical and moral problem, and here the Torah harms a person who has not sinned. It is hard to understand. But the problem is one of Jewish law and the Torah, not of the rabbinate or the state.
The question whether it is right for the state to adopt halakhic norms is of course another question, and personally I also think not. But there does need to be registration so that those who are particular about such things will not stumble into marrying a mamzer (and even a possible mamzer is rabbinically forbidden).
I once heard in the name of an article by Rabbi Elchanan Wasserman that one may deliberately cause a person to stumble regarding the prohibition of mamzer marriage (see my article on the personal status of a convert), because a possible mamzer is not a mamzer:

המעמד האישי של גר: אפלייה או סטטוס חברתי?[1]

It’s time all secular people, and especially secular women, stopped relating to this primitive and imaginary religious concept!
Only flooding the country with thousands of “mamzerim” will solve the problem!
Secular people should have absolutely no problem building families with “mamzerim”!
May “mamzerim” increase in Israel!

They’ve already been doing that quite nicely for a long time, and meanwhile the situation hasn’t really changed.

If so, then secular women must keep going and not despair! Once there’s a critical mass of “mamzerim,” then I hope they’ll have the courage to petition the High Court against the state and demand the possibility of marriage in Israel, cancellation of the “mamzer” lists, and a ban on declaring people mamzerim!

Good luck. I’ll join the High Court petition too (which of course will be rejected, unfortunately). But only to recognize marriages (I support the right of every primitive secular person like you to live according to his mistaken understanding). But lists are necessary so as not to cause those who want marriage according to Jewish law to stumble (I also support the right of the correct and enlightened people to live according to their understanding).

A. Lists are something each person and each community can make for themselves—but not the state, contrary to the Basic Law: Human Dignity and Liberty!
B. What I meant, of course, is that all secular women denied a get and “agunot” should ignore the concept of “mamzer,” not wait for a get, and continue with their lives and start families with new partners!
Women shouldn’t “receive” the get—they should take it!
C. I didn’t call you and people like you “primitive”—I called the concept of “mamzer” primitive!
D. You’re not the address for my proposals, but rather the secular women who aren’t willing to wait for a halakhic get!
E. As for religious women for whom the halakhic get matters—you really are doing excellent work, but unfortunately it still isn’t enough!
E. I hope that an “increase of mamzerim” will ultimately also bring about the abolition of this blatantly immoral and chauvinistic Jewish law!
Regards.

A. So we’re back to the religious primitiveness of secular people who see lists as an infringement of human dignity. And anyway, what’s the difference between the state and a community? The state too is a kind of community.
C. I understood. The concept I believe in is primitive, but I myself am enlightened. Nice.
E. If your starting point were commitment to Jewish law, there would be room for an argument about whether some Jewish law is primitive or not. But for some reason I get the impression that this is not your starting point, and therefore there is no point in this argument at all. Such criticism is logically foolish, though typical of secular thinking, which contains a good deal of primitiveness and superficiality (again, you are of course enlightened. It’s only secular thinking that is primitive 🙂 ).

Indeed I’m not committed to Jewish law—but the law of “mamzerut” really bothers me as a Jew and at the same time as a humanist!
I believe that if I were a religious person, then this law would bother me much more!
This law—in my opinion and in the opinion of many traditional and religious people I’ve spoken with—is blatantly immoral, because it punishes human beings through no fault of their own—and that’s without even getting into the discrimination against women in it, since the child of a married man by a woman who is not his wife is not considered a “mamzer”!
In any case—I do not deny the right of those who chose to observe Jewish law to observe it, but on the one hand I’m not willing for this law and everything that follows from it to be imposed on secular women as well, and on the other hand I expect modern halakhic decisors to find a way to abolish this law for the sake of the religious women groaning under it!
I’d be glad to hear your reply.

Let me clarify my point more. This law bothers a religious person too, perhaps even more than it bothers you. But for him there is also a second side to the dilemma, since the Torah commanded it (and in his view this is the word of God), and he is committed to it. So he is in a dilemma, and in the end he believes that if God commanded it, apparently He has a good reason for it. Therefore the conclusion is to observe this law despite the distress.
But you accept only one side of that distress, the side of the harm to an innocent person. You have no dilemma because you do not accept the commitment to Jewish law and the word of God. Therefore your criticism is not relevant.
As to the claim of immorality itself, I can offer some explanation (though it is not required, as I explained here). It is similar to someone who criticizes the checks done at the airport on innocent people out of concern for terrorists. In mamzerut too, the innocent child suffers as part of the desire to prevent harm to the institution of the family in Israel. But as stated, that explanation is not entirely satisfying even to me, and I too am troubled by the problem in this law (and still think it should be observed). As I explained, your claim, because it comes from outside, is not substantive and not relevant criticism.

By the way, notice what you yourself wrote at the end of your remarks. You wrote that this is harm to women. For some reason you wrote “to women,” and not “to children” (the mamzerim themselves). Why? Because due to the law of mamzerut, women will refrain from bringing such children into the world, and so there will be no harm to children. But that itself is the reason for this law (as I explained, to prevent harm to the institution of the family). In your very own words you showed that this law achieves its purpose, namely preserving the institution of the family and preventing promiscuity, and in fact preserving it also causes almost no child to be harmed (because there are almost no such children). So there you have it: there is no injustice here at all, only a legitimate step to achieve a goal that in my opinion (as a religious person) is worthy, and in your opinion (which is irrelevant to the discussion) is not.
The question of coercion that you raised here is a completely different question. Here, as I wrote, I’m entirely with you. But registration is necessary, so as not to harm the rights of religious people who would be forced to marry people disqualified in their view.

Regarding the suffering of the children—that is exactly my emphasis, and the reason I am convinced this law is blatantly immoral, and not because of discrimination against women—which was accepted when this law was written!
If they wanted to deter women, they could have found enough sanctions—without harming innocent people!
I’m not trying to convince you—but your readership, and they’ll decide!

Good luck.

Your actions are a blessing for religious women, but unfortunately they are not enough for secular women, who must take the initiative into their own hands, as I suggested!
My claims are not against you—because it’s clear that if it were up to you, you would find a solution for the overwhelming majority of “agunot” and women denied a get through a comprehensive halakhic solution (such as annulment of marriage and more), but as stated, abolishing the law of “mamzerut” is the only treatment that will solve these problems fully!
I of course oppose adultery within marriage, but I oppose the fact that a woman who wants to separate from her man is dependent on his will and on extortion attempts backed by the courts.
Most cases of “mamzerut” are not the result of adultery within marriage, but rather after separation, when women despair and are not willing to give up partnership and children!
In addition, I and many other secular men and women will not let anyone decide whether and with whom to build families!
The world is moving forward and you can’t stop it!

Good luck..

Michael, good morning.
I want to clarify that my struggle is not against you but against the rabbinic establishment!
I think your actions in the private court together with Prof. Daniel Sperber are important and commendable—in conversions, in marriage, and especially in permitting women denied a get and “agunot” who want a halakhic get.
I actually turned to you in the hope that you would have the halakhic courage, together with other halakhic decisors from the Religious Zionist stream, to abolish the law of “mamzerut,” as the Conservatives already abolished it decades ago (they do not accept testimony about mamzerut)—even if the ruling would not be accepted by the Haredim!
Unfortunately, that courage still does not exist.
I disagree with you regarding the very attitude toward “mamzerim.”
It seems to me we have no disagreement regarding secular women—that religious marriage should not be forced on them.
In my opinion, secular women should completely boycott the religious establishment—and even those who married according to Orthodox Jewish law and want to divorce, and find themselves denied a get or as agunot, should continue with their lives without the get and start new families with secular men.
In my opinion, only an increase of “mamzerim” will solve these problems, and I personally have no problem if the Haredim and some of the religious do not want to marry those “mamzerim.”
Personally, I have no problem if my children choose to build families with “mamzerot.”
May we all succeed.
Respectfully,
Shmuel Yaron

To Shmuel Yaron: you have no problem with it—so leave us alone, stop with your preaching and missionary activity, and let us remain backward. You’re not trying to persuade; you’re trying to impose your “enlightenment” on all of us.

Shmuel, it seems to me that you’ve made all this very clear indeed. I just think this isn’t the place to persuade secular people to increase the number of mamzerim, because I assume most readers here are not secular.
The talk about courage on your part is complete nonsense, of course. You can talk about courage because you have no second side to the dilemma. See my first reply to you. When someone behaves as you do, he is “courageous.” Maybe when you courageously accept the law of mamzerut, it will be possible to talk about courage in that context.