A drash in honor of our 10th anniversary

14 September 2008

כִּֽי־יִקַּ֥ח אִ֛ישׁ אִשָּׁ֖ה וּבְעָלָ֑הּ וְהָיָ֞ה אִם־לֹ֧א תִמְצָא־חֵ֣ן בְּעֵינָ֗יו כִּי־מָ֤צָא בָהּ֙ עֶרְוַ֣ת דָּבָ֔ר וְכָ֨תַב לָ֜הּ סֵ֤פֶר כְּרִיתֻת֙ וְנָתַ֣ן בְּיָדָ֔הּ וְשִׁלְּחָ֖הּ מִבֵּיתֹֽו׃ וְיָצְאָ֖ה מִבֵּיתֹ֑ו וְהָלְכָ֖ה וְהָיְתָ֥ה לְאִישׁ־אַחֵֽר׃ וּשְׂנֵאָהּ֮ הָאִ֣ישׁ הָאַחֲרֹון֒ וְכָ֨תַב לָ֜הּ סֵ֤פֶר כְּרִיתֻת֙ וְנָתַ֣ן בְּיָדָ֔הּ וְשִׁלְּחָ֖הּ מִבֵּיתֹ֑ו אֹ֣ו כִ֤י יָמוּת֙ הָאִ֣ישׁ הָאַחֲרֹ֔ון אֲשֶׁר־לְקָחָ֥הּ לֹ֖ו לְאִשָּֽׁה׃ לֹא־יוּכַ֣ל בַּעְלָ֣הּ הָרִאשֹׁ֣ון אֲשֶֽׁר־שִׁ֠לְּחָהּ לָשׁ֨וּב לְקַחְתָּ֜הּ לִהְיֹ֧ות לֹ֣ו לְאִשָּׁ֗ה אַחֲרֵי֙ אֲשֶׁ֣ר הֻטַּמָּ֔אָה כִּֽי־תֹועֵבָ֥ה הִ֖וא לִפְנֵ֣י יְהוָ֑ה וְלֹ֤א תַחֲטִיא֙ אֶת־הָאָ֔רֶץ אֲשֶׁר֙ יְהוָ֣ה אֱלֹהֶ֔יךָ נֹתֵ֥ן לְךָ֖ נַחֲלָֽה׃

When a man takes a wife and marries her, and it turns out that she does not please him because he finds some indecent thing in her; and he writes her a bill of divorce, puts it in her hand, and sends her from his house; and she leaves his house, and marries another man; and the latter man hates her and writes her a bill of divorce and puts it in her hand and sends her from his house, or if the latter man, who took her as a wife, dies; the first man who sent her away may not take her again to be his wife, after she has been disqualified, for it is a disgusting thing before the Eternal, and you shall not pollute with sin the land that the Eternal your God gives you as an inheritance.

Deuteronomy 24:1–4

Ki Tetze, the parsha that was read in shul this morning, is our aufruf parsha, and I think it’s the best aufruf parsha EVAR, because it talks about just about everything that could go wrong with a marriage. There’s the beautiful woman captured in wartime, there’s the man who hates one of his two wives, there’s the stubborn and rebellious son, etc., etc., etc… and there’s divorce. Which is what I want to talk about. It’s OK. I’m not about to deliver bad news.

In the Tikkun Olam anthology, Rabbi Michael J. Broyde has an essay in which he asks: should Jews, through persuasion and/or the political process, encourage non-Jews to be more observant of the seven Noachide commandments? One problem with such a project, he points out, is that we’re often not sure what those commandments entail. As a specific example, he cited a three-way controversy over the law of Noachide divorce. The rest of this post is basically the result of my chasing down Rabbi Broyde’s footnotes, with some help from my local Orthodox halakhic authority and besamim.

Before we can have divorce, we must have marriage

The Mishnah (Kiddushin 1:1) summarizes the ways that a woman can be married (through money, document, or sexual relations) and unmarried (through death and divorce). Surprisingly, while the plain text of this week’s parsha says a lot about divorce, it doesn’t say very much about marriage itself; when the Gemara looks for sources in the Torah to justify the Mishnah’s rules about how to get married, it relies heavily on indirect arguments from other verses. I would suggest that we can understand this asymmetry by looking at the Torah’s original audience. It’s safe to assume that when they arrived at Mt. Sinai, Jews were familiar with the laws of Noachide marriage, or at least, they had a traditional family law that was consistent with the laws of Noachide marriage. Therefore, the plain text of the Torah focused on what aspects of the law were new to them, rather than what was continuous with the old law.

The Jerusalem Talmud (Kiddushin 1:1) derives laws of Noachide marriage from Genesis 2:24—“therefore a man should leave his father and mother and cleave to his wife”. Rabbi Mana expounds on this verse that a man should cleave to his wife, and not to his neighbor’s wife. The Yerushalmi also declares that non-Jews do not have kiddushin, the first stage of Jewish marriage. Regarding gerushin, divorce, it says that either non-Jews do not have any divorce or they divorce one another (“או שאין להן גירושין או ששניהן מגרשין זה את זה”). Furthermore, the Yerushalmi cites Deuteronomy 24:1–4 (see above) and says because this passage concludes by mentioning “the land that the Eternal your God gives you as an inheritance”, it does not apply to Noachides. But there are so many laws packed into those four verses that it’s not clear what it means to negate them.

The matriarchal interpretation

Bereshit Rabba 18:5 covers much of the same ground as the Yerushalmi, and adds an opinion by Rabbi Yochanan: the wife divorces the husband, and gives him a דופורון (which, according to Jastrow’s dictionary, is a mistransliteration of the Latin repudium, the bill of divorce that the Romans used). Rashi unpacks Rabbi Yochanan’s logic as follows: since under Genesis 2:24 the husband is obliged to cleave to his wife, he can’t “uncleave” her by divorcing her. But since the wife has no corresponding obligation to her husband, she is free to send him away.

The no-fault interpretation

Maimonides, in the Mishnah Torah, states that before the Torah was given a man could simply marry a woman by taking her home and having relations with her (Ishut 1:1); for a man’s wife to become “like one of our divorcées”, she just had to stop living in his household, or alternatively, he could send her away. It’s interesting to note that when he talks about these laws, Maimonides, is careful not to use the Hebrew words kiddushin or gerushin to describe transactions between non-Jews, even in the “they divorce each other” sense that the Yerushalmi and Bereshit Rabba use. I haven’t studied this stuff in any depth, but note that for Jews, once a man and a woman enter kiddushin (e.g., he gives her a ring and says the magic words), even if they have not yet had chuppah, their relationship can only be dissolved with death or a get. So I would speculate that for Maimonides, kiddushin and gerushin come as a matched set; if you lose one, you have to lose the other, and without the change of legal status that these two actions generate, you’re left with mere cohabitation.

The more-than-Catholic interpretation

The Pnei Yehoshua, an early-18th-century German rabbi, offers a third interpretation. In the Bablyonian Talmud (Kiddushin 13b), there is an argument over how we know that a woman becomes free to remarry after her husband dies. Various proof-texts are brought and rejected; the one that sticks is Deuteronomy 24:3. The Gemara concludes that since that verse connects a husband’s divorce and his death, we can say that just as divorce frees a woman from her husband, so does the husband’s death. But wait! says the Pnei Yehoshua. We know from the Yerushalmi that this whole passage only applies to Jews. Therefore, the rule that a woman is freed by her husband’s death also only applies to Jews; Noachide women must remain in their marital state even after their husbands die.

Practical consequences for the reader

So, if you have a non-Jewish friend who approaches you for advice, because he or she is in an unhappy marriage and has moral reservations about how best to proceed… and this person thinks that since you are a righteous and caring individual, you might be able to counsel them about the most appropriate course of action to take… don’t nominate any of these worthy authorities to serve as your friend’s moral compass. Instead, you should take the position of the Ragamam (haRabbanit haGaonit Miss Manners) and just not say anything.

• Later: Is this a good sign or a bad sign?
• Earlier: Being and nobodyness