Footnotes

1. The author has recently completed an extensive book on the agunah issue to be published by Greenwood Press. Many points touched upon briefly in this article receive a much fuller elaboration in the book.

2. The nature of the problem stems from the fact that under Jewish law, neither a secular court nor even a bait din can dissolve a valid marriage. Only the parties can, by the husband or his designated agent handing the wife or her designated agent a document written in a prescribed form known as a get. Since the divorce process currently requires mutual consent, and has always required the husband's consent, the possibility of blackmail, extortion, or recalcitrance is ever present.

3. To a lesser degree, men too can be in this "chained" state because of the refusal of their wives to accept a get. The predicament of the male, however, is susceptible to alternative solutions not available for women. A woman who has not received a get is prohibited by Torah law from remarrying; any subsequent union is regarded as adulterous; and the children of that union are branded with the permanent stigma of mamzeirut (halachic illegitimacy), disabling them and their future offspring from every marrying other Jews. By contrast, a man who has not given a get is under Torah law permitted to remarry (although he still remains married to his first wife as well). Since the 11th Century, male polygamy has been banned by virtue of an edict promulgated by the Bait Din of Rabbeinu Gershom at least for Ashkenazic Jews. Nevertheless, because the prohibition on the male is only rabbinic, it is subject to annulment in extenuating circumstances with the concurrence of 100 rabbis (heter meah rabbanim), see Shulchan Aruch Even HaEzer 1, an option not available to remove the Biblical prohibition women face. Moreover, even without annulment, the prohibited remarriage of a married man to a single woman will not generate the irrevocable stigma of mamzeirut.

4. Some have argued, and with merit, that a woman is technically an agunah only if a competent bait din has issued a final order that a husband must grant a get to his wife which the husband then disobeys. Based on such a definition, one author has concluded that the number of true agunot in the United States is "less then fifty." See Epstein, A Woman's Guide to the Get Process, p. 2. This figure ignores, however, some of the difficulties women face in securing a bait din's order. Furthermore, there are many circumstances where a bait din might not be prepared to compel the granting of a get but where the marriage is essentially dead and the woman left stranded. Others have argued that there may be as many as 15,000 agunot. See Hentoff, "Who Will Rescue the Jewish Women Chained in Limbo?" Village Voice (Sept. 13, 1983), p. 6. This latter figure almost certainly includes all Jewish women who have not received gittin including those women who are religiously indifferent to get. While this alone is a serious problem, such women could hardly be characterized as "chained."

5. See note 2.

6. See note 2 (ban of Rabbeinu Gershom).

7. See statement quoted in Jewish Homemaker (October 1992), at p. 29.

8. These grounds can be found in Shulchan Aruch Even HaEzer 154 and commentaries.

9. Even if this is true, it is not entirely clear that this obviates the meusah problem if the amount of marital support exceeds what a woman is entitled to under Torah law or if the wife is not entitled to mezonos at all.

10. Psak of Rabbi Shlomo Zalman Auerbach dated 28 Av 5752 (August 27, 1992) and psak of Rabbi Yosef Shalom Elyashiv dated 1 Elul 5752 (August 29, 1992), copies in the possession of this author. Other writings on this statute include a number of psakim, articles, and public letters authored by the Bait Din of the Kollel HaRabonim, a well-respected bait din in Monsey. Rabbi Chaim Malinowitz of that bait din has been especially vociferous in calling for the statute's repeal.

11. Short statements to that effect have appeared in publications such as the Jewish Press (quoting Rabbi Tibor Stern of Miami Beach). The only responsum that directly validates the law is authored by Rabbi Yitzchok Liebes, head of the Bait Din of Igud HaRabonim. See Teshuvot Bait Avi, E.H., no. 169. Strong support for the approach of the statute (two-tiered alimony) may also be garnered from Igrot Moshe E.H. IV, no. 106. It must be emphasized, however, that Rabbi Feinstein never expressed any opinion on this precise statute. A full discussion appears in Chapter Seven of my book.

12. Some proponents of the law have strenuously argued that there is no way the statute will produce invalid gittin. In response to the judge's order, a recalcitrant husband will appear before a bait din. Under standard procedure, however, no bait din will ever execute a get unless the husband declares that he is authorizing the get of his own free will without compulsion or duress of any kind. If he cannot make such a declaration or even if he does it is apparent that he is doing so solely to avoid forfeiture of marital assets or the imposition of higher alimony, the bait din will simply not write a get. If the bait din does indeed refuse to execute a get, the forfeiture order will not take effect since the "barrier of remarriage" is not a barrier that is presently within the power of the husband to remove, an element built into the very definition of the statutory term. The practical application of the statute will be to compel the husband to appear before a bait din; once he does appear, the issue of meusah can be determined by a bait din whose findings will be conclusive.

The above is certainly one possible scenario. Indeed, even the Kollel HaRabonim of Monsey which has openly called for the statute's repeal recognizes that gittin can continue to be written if the bait din determines that no coercion exists. See Guidelines for Mesadrei HaGet, 25 Tishrei 5753 (October 22, 1992). Yet this renders the statute largely ineffective since it cannot produce gittin from truly recalcitrant husbands (who do however respond to the pressure of monetary forfeiture) but only from those husbands who are willing to obey a bait din (even without the pressure of forfeiture) but were unwilling to appear before it in the absence of threat, a fairly unusual class of men. Second, as long as such coercion exists on the books, it will be extremely difficult at least in some cases to gauge true consent. A bait din, particularly in a pressured agunah-type situation may erroneously place excessive credence on external manifestations of consent even when the circumstances clearly indicate that the husband's "agreement" is based on threat of forfeiture. At the very best, this will generate gittin of questionable validty that may not be universally accepted by others, chas v'shalom. Third, to the extent there are batei din that do not regard the sanctions of the statute as coercive at all (viewing the liability as simply an increase in spousal support), these batei din will indeed continue to issue gittin even where it is absolutely clear that the husband is responding to monetary pressure - a scenario that will clearly result in an invalid get meusah according to other authorities. Thus, the scenario of a bait din refusing to write the get is possible but it is not exclusive.

13. See Yebamot 14b.

14. See, e.g.,Eruvin 13b. For a superb and enlightening treatment of the multiple truth concept, see Rosensweig, "Elu va-Elu Divre Elokim Hayyim: Halakhic Pluralism and Theories of Controversy," 26 Tradition 4 (Spring 1992).