The Conversion Is Questionably Kosher, but the Methodology Is Unquestionably Non-Kosher
If the concept of malpractice could be applied to p’sak Halacha (halachic decision making), we would have the case of a lifetime on our hands. I am sorry to say it, but the leadership of Yeshivat Chovevei Torah and Yeshivat Maharat, undertaking to change geirus (conversion) protocol by issuing new piskei halacha (halachic rulings) to promote these changes, is juggling (halachic) torches and is doing so very irresponsibly. Converts and their descendants are going to be greatly harmed, and those easily impressed by halachic discussion that they cannot understand are going to be unwittingly drawn in and hoodwinked.
In light of recent accusations of a well-known rabbi committing crimes of immorality against converts – crimes of voyeurism, secretly viewing unclothed females at the mikveh preparing for conversion – R. Shmuel Herzfeld of Congregation Ohev Sholom/The National Synagogue, along with his synagogue’s maharat (female rabbi), turned to R. Jeffrey Fox, rosh yeshiva of Yeshivat Maharat, asking for an halachic ruling regarding the need for a beis din to be present when females immerse in the mikveh for conversion. Even though the beis din which oversees conversion does not and is not allowed to view the converting woman’s body (the beis din enters the room only after the woman is fully in the water and is totally covered by use of one of many devices, the beis din stands from way afar, only viewing from a distance the back of the woman’s head submerge, and the beis din immediately then exits, having been in the room for a matter of seconds), and even though the accused voyeur is not charged with viewing women unclothed during their conversions, R. Fox portrayed conversion as somehow enabling the beis din to gaze upon the bodies of women when they immerse: “There is no reason for the woman to feel as though her body is being inspected by a group of men.” Based on this incredibly inaccurate portrayal of the conversion process and the alleged need to remedy it, R. Fox issued a responsum, comprised of a number of shaky assumptions, that dispenses with the requirement for a beis din to see any part of the tevillah (immersion) for geirus.
A critique of the technicalities, implications and (in)appropriateness of R. Fox’ responsum was presented here; please take a look – there is no need to present it all again. However, it must be emphasized, as elaborated upon in the referenced article, that R. Fox’ reliance on Igros Moshe (YD 3:112) as basis for his responsum is wholly misplaced, for R. Moshe never permitted the performance of geirus without the beis din witnessing the tevillah; the teshuva (responsum) of Igros Moshe mustered by R. Fox to support his argument pertained to a b’dieved (after the fact) case in which one member of the beis din did indeed witness the submersion of the converting woman’s head, while the other two members of the beis din were present in the room, but their view was blocked. Those other two members of the beis din observed the woman in the water immediately before and after she submerged her head, and R. Moshe deemed the situation as one of an umdena d’muchach (compellingly true presumption) or eidus yedi’ah (valid testimony based on information without personal observation) that the woman’s head had submerged. It is very difficult to postulate that R. Moshe could have applied these categories were the beis din any further removed from what was happening or any less involved. (Please click on the hyperlink for the full discussion.)
After R. Fox issued his responsum, R. Ysoscher Katz of YCT issued his own responsum, as R. Fox asked him for input. (Exactly why the clergy of Ohev Sholom turned to R. Fox, and why R. Fox turned to R. Katz, for adjudication of one of the most sensitive, severe and far-reaching areas of Halacha, rather than turning to renowned poskim for this matter, is another discussion – as is why R. Fox and R. Katz felt that they were authorized to weigh in and rule in matters where names such as R. Moshe Feinstein and R. Ovadia Yosef are the main decisors on record.) R. Katz’ responsum, which reaches the same lenient conclusion as that of R. Fox, is likewise built on numerous assumptions and likewise permits lechatchilah (outright) that which the controlling sources treat as b’dieved or invalid. (For example, the first, more lenient opinion in Shulchan Aruch YD 268:3, relied upon by R. Katz to lechatchilah permit tevillah without a beis din witnessing anything, requires tevillah in the presence of a full beis din but considers the geirus kosher if the beis din did not witness the tevillah; R. Katz opines that R. Ovadia Yosef, who, like R. Moshe Feinstein (in Igros Moshe YD 2:127), absolutely requires the presence of a beis din for tevillah, failed to see the opinion of the Ramban, which would have surely changed R. Ovadia’s ruling, according to R. Katz.)
The lynchpin of R. Katz’ responsum is a phrase from the Ramban (Yevamos 45b, ד”ה מי לא טבלה), explaining the opinion of the Rif (Yevamos 15b) that a beis din of three must be present for tevillah, but that if the beis din did not witness the tevillah, the conversion is kosher b’dieved.
R. Katz writes:
.שבאמת גם לפי שיטת הרי”ף יש להקל שלא להצריך חברי בית דין להיות נוכחים בתוך חדר הטבילה
(“In truth, also according to the Rif, one can be lenient and not require the beis din to be present in the room that the immersion occurs.”)
R. Katz proceeds to present and apply the phrase from the Ramban:
.אלמא קבלה בשעת טבילה ממש והכל בפני שלשה בעינן
(“We deduce that we require Kabbalas Ha-Mitzvos at the actual moment of immersion, and it all must be performed in the presence of a beis din of three.”)
R. Katz thereupon writes that it is clear that the Rif, as per the explanation of the Ramban, in no way requires that the beis din witness the immersion or even be in the same room as the immersion, for the beis din’s involvement is only instructional, pertaining exclusively to Kabbalas Ha-Mitzvos (Acceptance of the Mitzvos), and that so long as the beis din conducts Kabbalas Ha-Mitzvos at the time of immersion, even without witnessing anything, all is 100% fine. (R. Katz further claims that even though the Shulchan Aruch in Yoreh Deah 268:3 writes that the Rif (as well as the Rambam) requires the tevillah to occur before a beis din, the Shulchan Aruch is merely presenting the matter “procedurally and not halachically” (!).)
While one may postulate that the need for a beis din to be present for tevillah is precipitated by the Kabbalas Ha-Mitzvos that is performed while in the mikveh, immediately before submerging the head, it is a massive leap to conclude, as does R. Katz, that the beis din therefore need not witness anything. Such a conclusion is nowhere implied in the words of the Rif or the Ramban, nor is the theory that the sole function of the beis din upon tevillah is that of Kabbalas Ha-Mitzvos. The Rif specifies that tevillah for geirus when not performed before a beis din is kosher only b’dieved, and that a convert who did not immerse before a beis din may not marry another Jew and must first immerse again before a beis din. Neither the Rif nor the Ramban make any exception so as to permit tevillah not in the view of the beis din. Even if one finds R. Katz’ theory appealing, his ruling is quite arguably contradicted by the simple words of the Rif himself.
For full proof and transparency, here is the complete quote from the Ramban (English rendition):
If one who accepted the mitzvos in the presence of a beis din of three dayanim then immersed not in the presence of a beis din of three dayanim, he is Jewish. We do not declare his progeny non-Jewish, but we do not permit him to marry a Jew until he immerses in the presence of a beis din of three dayanim, because lechatchilah, a beis din of three dayanim is required for both the acceptance of mitzvos as well as for the immersion, as we find in the Gemara later (Yevamos 46b), in which the rabbis told someone who came to convert and had undergone circumcision but had not yet immersed, “tarry here and we will conduct your immersion tomorrow”, whereupon the Gemara concludes that a beis din of three members is needed, and as it was also taught in the Gemara (ibid. 47b) that a female convert enters the water (of the mikveh) until her neck, and three rabbis who are outside proceed to notify her of the mitzvos… We see from here that we require the convert to accept the mitzvos at the time of immersion, and that everything must be done in the presence of a beis din of three dayanim. And even a male convert who accepted the mitzvos upon himself before circumcision must perform a Kabbalas Ha-Mitzvos again at the time of immersion in the presence of a beis din of three dayanim, as the Gemara will explain; and this is established as the rule lechatchilah.
The Ramban’s remark that “we see from here that we require the convert to accept the mitzvos at the time of immersion” is explaining that the convert must undergo a Kabbalas Ha-Mitzvos as he or she is about to submerge the head, once in the mikveh, as demonstrated by the Ramban’s second proof immediately above, from the Gemara on 47b, in which the beis din conducts a Kabbalas Ha-Mitzvos at the time of tevillah. The Ramban is elucidating here an additional point – that Kabbalas Ha-Mitzvos is to be performed upon immersion, even if Kabbalas Ha-Mitzvos already occurred previously, as the Ramban then proceeds to explain (“and even a male convert who accepted the mitzvos upon himself before circumcision must perform a Kabbalas Ha-Mitzvos again at the time of immersion in the presence of a beis din of three dayanim”). The Ramban is clearly not in any way declaring a sweeping, broad new general axiom that the entire function for a beis din upon immersion is that of Kabbalas Ha-Mitzvos – and that there is hence no need for a beis din to witness the immersion. Rabbi Katz’ understanding of the Ramban as expressing that sweeping, broad general axiom is patently incorrect. Please read the Ramban yourself; its meaning is very clear. This is why R. Ovadia Yosef does not note the Ramban as having articulated an important leniency regarding the need for a beis din to witness the tevillah of geirus, for the Ramban clearly does nothing of the sort.
The Rambam (הל’ איסורי ביאה יד:ו) also requires tevillah in the presence of a beis din of three dayanim and makes no exception:
If the convert is female, she immerses in the water until her neck, and the dayanim, who must be outside, inform her of the mitzvos (i.e. Kabbalas Ha-Mitzvos) while she is in the water. She then immerses in the presence of the dayanim, who then turn away and exit in order that they not see her emerge from the mikveh.
R. Katz concludes that due to recent events, we are in a situation in which women are hesitant to convert (“as they do not want to immerse where three men are present as they stand naked” – p.4 of the responsum – the assertion that women undress in front of the beis din appears yet again on that same page), and we thus are in a position in which we need to go according to the b’dieved requirements. (As explained in the article dealing with R. Fox’ responsum, we apply b’dieved rulings in cases of a required mitzvah that cannot be performed in the optimal fashion. Geirus is not a requirement – it is wholly optional. Why then should standards be lowered to those of a b’dieved level?)
R. Katz omits mention of the opinion of the Rambam, as well as the Ritva, Nimukei Yosef and other Rishonim, all who unconditionally require tevillah to be performed before a beis din. This omission, along with an erroneous approach within the Rif and Ramban, coupled with other assumptions and the doubtful treatment of rulings for b’dieved or non-optimal situations as permissible approaches lechatchilah, leads to the inevitable unraveling and collapse of R. Katz’ responsum.
Furthermore, R. Katz materially misrepresents geirus as featuring nude women in the presence of the presiding beis din. This distortion creates false pretenses that serve to promote the need for the new responsum. It is difficult to believe that someone would portray geirus of women as such, in contravention of Halacha (e.g. Yevamos 47b, Rambam Hil. Issurei Bi’ah 14:6, Yoreh Deah 268:3, etc.) and the facts on the ground. Ask anyone who serves on a beis din for geirus, and the truth will be confirmed.
But there is more – so much more that it blows one’s mind.
After issuing his responsum, R. Katz posted an informal follow-up message, which contains:
Aside from the basic Halakhic question-is there a way to exempt a female convert from having to tovel (dunk) in the presence of the three men of the Beit Din?-the issue raises larger philosophical questions:
1) How do we deal with a halakhic requirement that no longer conforms with contemporary notions of ethics and morality?
2) What are the rules for reinterpreting halakhic idioms (terms like be’dieved and the like)?
3) What is the role of the Talmud in MO pesika; does it have legal weight and halakhic authority, or did chasimas ha’talmud rob it of halakhic significance?
To ask, “How do we deal with a halakhic requirement that no longer conforms with contemporary notions of ethics and morality?” is shocking, as it implies that Halacha may be expected to conform or be influenced by contemporary values. Although Rav Soloveitchik zt”l did not phrase it in this exact manner, on numerous times did he declare that Halacha is not affected by contemporary values, but that, on the contrary, our values must be created by Halacha (and the rest of the Torah). This concept is at the core of the eternality and divine integrity of the very being of Halacha.
R. Katz’ question about reinterpreting halachic idioms such as “b’dieved” is not about interpretation but about reinterpretation – about tweaking or restructuring the strata of halachic application. This is approaching, if not going beyond, the outer bounds of Orthodoxy.
R. Katz’ last question is startling, as it suggests that the binding interpretations of Halacha pursuant to the Chasimas Ha-Talmud (Completion and Sealing of the Talmud) could be challenged, reconsidered or overturned. R. Katz’ question puts forth the notion that rejected interpretations might be used to militate against accepted and codified halachic rulings. This goes well beyond even the approach of early scholars of the Conservative movement, and it places the entire corpus of Jewish law in jeopardy.
The leadership of YCT and Yeshivat Maharat has now gone way past feminist innovations and egalitarian rituals. This leadership has entered into the realm of heavy halachic adjudication, using highly objectionable methods and questioning the very foundations of the halachic system.
Aside from the misuse and breakdown of Halacha that obviously inhere is the catastrophic damage to converts and their offspring that R. Katz’ and R. Fox’ approaches portend, for virtually all established batei din will reject the Jewishness of those who undergo conversion performed by rabbis applying R. Katz’ and R. Fox’ controversial and quite questionable rulings. Halacha, as well as prospective geirim and their descendants, will be the ultimate victims.
Torches are being juggled, and an inferno is in the making.
Rabbi Gordimer is a kashrus professional, a member of the Executive Committee of the Rabbinical Council of America, and a member of the New York Bar. The opinions expressed in this article are solely those of the author.