Q&A: "Conservative Midrash" in the Laws of Levirate Marriage
"Conservative Midrash" in the Laws of Levirate Marriage
Question
I read the trilogy and I follow some of your lectures on YouTube. Let me ask a direct question: what do you instruct in the following case? A widow bound to levirate marriage falls before the only brother of her deceased husband, and he is unable to perform halitzah. Suppose he is an amputee with no legs at all, so that according to all opinions it is impossible to perform Torah-level halitzah ("from upon his foot"…). In this case we have no relevant knowledge that was unknown to the Sages. The widow of course wants to remarry and rebuild her life. The halakhic "solution" is that the poor widow has intercourse against her will (which is more or less the definition of rape) and then leaves with a bill of divorce. In my view there are precedents nowadays where this is the ruling of the religious court. Needless to say what feelings such a ruling arouses. Practically speaking, if you were sitting on such a case, what would you rule?
Answer
Indeed, that she should enter levirate marriage and then leave. Unless a solution is found, such as annulment of the marriage to the first husband (the deceased brother). There are hard cases in Jewish law, and we do not have the ability to activate our feelings every time and nullify them. What about mamzerim? What about the prohibition on a priestly husband after rape?
Incidentally, it is not rape. It is her decision whether she wants to enter levirate marriage and become permitted, or not. It is unpleasant, but certainly not rape. Beyond that, why shouldn't she enter levirate marriage with the brother? Because he is an amputee? He could be a wonderful person.