In 2007, the State of Israel beit din of Ashdod nullified a conversion that had occurred many years earlier, arguing that the giyoret in question had been only partially observant of mitzvot since the conversion. The woman appealed to the Israeli Rabbinic Court of Appeals,36For a discussion of this institution, see Gray Matter 3:246-248. where two great dayanim, Rav Shlomo Dichovsky and Rav Avraham Sherman, disagreed as to whether to uphold or reject the lower beit din’s ruling.
Before examining this debate, we should clarify that there does exist a concept of bittul geirut (nullification of conversion) in Halachah.37The subject of bittul geirut is incredibly sensitive. In 1972, when Rav Shlomo Goren invalidated the conversion of the first husband of a woman who remarried without a get in order to spare the children from her second marriage from being classified as mamzeirim, many Rabbanim expressed severe dissent. Rav Yosef Shalom Eliashiv even resigned from the Rabbinic Court of Appeals as a result. A State of Israel beit din known for its fairly lenient approach to conversion once nullified a conversion that had occurred several years previously.38This ruling is recorded in Techumin 23:186-202. A woman and her three-year-old child applied for conversion. Upon receiving enthusiastic endorsements of the woman’s complete mitzvah observance and dedication to her daughter’s Torah education, the beit din accepted their credentials and converted them.
However, the Israeli government’s Interior Ministry discovered that the woman both before and after the conversion maintained (for a number of years) an ongoing relationship with a nochri gentleman, which included physical relations. Upon this revelation (of which, of course, the beit din that had approved the conversion was unaware), the Ministry submitted a request to the beit din to nullify the conversion. This nullification would not only have potential religious consequences, but also would result in the expulsion of the woman and her daughter from Israel, since they received automatic Israeli citizenship on the basis of their status as Jews. We should clarify, though, that the gentleman, a foreign worker in Israel, had attempted to enter a conversion program but was rejected due to his lack of Israeli citizenship. He could not convert in the country of which he was a citizen (Turkey) because there was no conversion study program in that country. We should also note that the linkage between conversion and Israeli citizenship makes conversion in Israel much more complex and controversial than outside of Israel.
The potential basis for nullifying the geirut was the woman’s apparent flawed kabbalat mitzvot and the fact that the beit din’s approval for her conversion had been based on her apparently deceptive presentation of herself as fully observant of Torah law39This case highlights the need to conduct a thorough and not cursory investigation before recommending a candidate for conversion to a beit din. .
The Minority Opinion
One dayan on the beit din, Rav David Bass, ruled that although he certainly would not have approved the conversion had he known of her relationship with this individual, the conversion should not be nullified b’diavad on the basis of the discovery. He combines five twentieth-century rulings as precedent for his approach.
He begins by citing Rav Ben-Zion Uzziel’s approach (Teshuvot Mishpitei Uzziel 2: Y.D. 58 and Piskei Uzziel number 65) that kabbalat miztvot is not an indispensable component of the conversion process. Rav Bass notes that the consensus opinion rejects this approach, but he argues that it should be considered as an adjunct to a lenient ruling not to nullify the conversion.
Next, he cites Rav David Zvi Hoffman’s aforecited ruling (Teshuvot Melamed Leho’il 3:8) that a beit din is forbidden to accept a candidate for conversion only if he/she explicitly rejects a mitzvah. However, as long as such an explicit statement is not made, the beit din may perform the conversion even if it is obvious that he/she will violate one of the commandments.
The third precedent is Rav Moshe Feinstein’s argument (Teshuvot Igrot Moshe Y.D. 3:106) that a convert who is willing to accept mitzvot but is not willing to accept proper standards of modest dress is not necessarily rejecting a mitzvah if she is willing to follow the (less than ideal) standards observed by the observant women she sees in her community. In such a situation, she does not internalize the standards espoused by the rabbis, since it is not observed by the observant women she sees. She perceives that the rabbis are trying to impose unnecessary stringency upon her. Rav Moshe suggests that this attitude does not constitute a rejection of a mitzvah.
Rav Bass argues that since the woman in question sees many Jewish women in her neighborhood who live with non-Jewish partners, she does not perceive living with a non-Jewish man as truly forbidden according to Jewish Law. Rav Bass surmises that the woman might be thinking that just as she converted, her partner will convert as well.
The fourth precedent he cites is a ruling of Rav Moshe Feinstein (Teshuvot Igrot Moshe Y.D. 3:108). A woman had been warned (before conversion) that she would lose her job had she failed to appear for work on the second day of Shavu’ot. The woman submitted to the pressure and went to work; years later, she asked Rav Feinstein if her foreknowledge of this violation invalidated her conversion.
Rav Moshe validated her conversion. He reasons that Halachah does not require a convert to be committed to observe mitzvot even in the most stressful of situations. For example, Rav Moshe argues that we can accept a candidate for conversion even if he/she is not committed to surrender their lives in situations where Halachah demands such sacrifice. Similarly, Rav Moshe argues that Halachah does not demand from the convert that he be willing to forego his means of livelihood in order to observe Halachah.
Rav Bass argues that for the woman in question, the requirement to abandon her non-Jewish partner was as difficult as demanding that she be willing to forego her employment. A lack of such intense dedication to mitzvah observance does not invalidate her conversion.
The fifth precedent is a ruling from Rav Avraham Yitzchak Kook (Teshuvot Da’at Kohen 153), who was asked regarding a case in Egypt where a convert was improperly withholding a get from his wife. The local rabbis wished to invalidate the conversion on the basis of his failure to observe the miztvot, thereby permitting the wife to remarry without a get. Rav Kook rejected this approach, arguing:
As long as there was a proper articulation of acceptance of Mitzvot, one can say that we disregard any thoughts the person had when making the declaration. Even if Eliyahu HaNavi will come and testify that the convert did not intend to observe the Mitzvot, one’s thoughts are a totally irrelevant consideration [devarim she’beleiv einam devarim - Kiddushin 49b].
Similarly, Rav Bass argues that the fact that the woman in question intended to continue to live with her nochri partner does not invalidate her acceptance of the Torah.
The Majority Opinion
Rav Yisrael Rozen, in articulating the majority opinion of the beit din, invalidated the conversion. Interestingly, Rav Rozen does not consider Rav Uzziel’s ruling even as an adjunct consideration in a lenient ruling. Moreover, Rav Rozen argues that the fact that this woman continued to live with a non-Jew impinges on the very essence of conversion - joining the Jewish people.
He views as absurd the comparison to a woman who was not committed to modest dress beyond that which her otherwise observant neighbors practiced. One cannot compare relatively minor laxity in terms of one (albeit very important) area of Halachah to the blatant violation of one of the most basic aspects of Jewish life.
In defense of Rav Bass, one might argue that despite the astounding contradiction, some people will conduct most of their lives as an observant Jews and yet live with a nochri partner. Nonetheless, Rav Rozen argues that there must be a limit to the degree of flexibility a beit din can exercise. He writes, “This case is virtually the simplest scenario that requires a Beit Din nullify a conversion. It is difficult for me to imagine a more extreme situation.”
Moreover, the woman blatantly lied to the beit din when it inquired as to her personal relationships. Her deception throws the validity of the conversion into doubt, since the presence and consent of beit din is a requirement for geirut (Yevamot 46b and Shulchan Aruch Y.D. 268:3). Had the beit din known of this relationship, it never would have administered the conversion.
Some clarification is needed in regard to the concept and application of devarim she’beleiv einam devarim. This principle is articulated in the following case recorded by the Gemara (Kiddushin 49b): A certain individual sold his property with the intention to move to Eretz Yisrael. However, he did not specifically condition the sale upon his successful move to Eretz Yisrael. When, afterwards, he was unable to move to Eretz Yisrael, he was not entitled to demand the right to repurchase the house, even though he had sold the house with the intention to move to Eretz Yisrael. The reason for this, states the Gemara, is that devarim she’beleiv einam devarim, unarticulated thoughts carry no halachic significance. Thus, it would appear, at first glance, that we should ignore a convert’s unarticulated intention to routinely violate Jewish Law, as long as the convert declared before beit din his commitment to fully observe Jewish Law.
Tosafot (ad. loc. s.v. Devarim She’beleiv Einam Devarim), however, clarify that there are exceptional situations in which the parties’ intentions are so clear that we follow those intentions, even if the parties do not explicitly state them. Tosafot state that in those situations, “we assess that this was his intention.” Rav Moshe Feinstein (Teshuvot Igrot Moshe Y.D. 1:157 and 159) applies Tosafot to a situation in which it is nearly clear that a convert does not intend to observe Torah law. In such a case, the articulated kabbalat mitzvot is meaningless, and the conversion is invalid. Rav Moshe’s example of such a conversion is a woman who converts to marry a Jewish man who does not observe Torah law. Indeed, mainstream rabbinic courts will perform a conversion in such a situation only if the intended Jewish spouse makes concrete and sustained efforts to lead a fully observant Torah lifestyle.
The 2008 Debate
We now turn our attention to the great debate between Rav Shlomo Dichovsky and Rav Avraham Sherman that erupted in 2008 reagrding bittul geirut. This debate impacts not only the Jewish status of a mother and her children in the Ashdod area, but also thousands of individuals who have converted through the special conversion courts established by the Israeli Chief Rabbinate. Thus, we begin our discussion of this matter with full awareness of the complexities and the variety of opinions regarding an issue that has great impact on generations to come.
The Special Conversion Courts
The great immigration from Russia to Israel beginning in the late 1980s has given rise to an enormous social and halachic problem. A great number of these immigrants are either not Jewish or only possibly Jewish. They were admitted to the country under the Law of Return, which grants automatic Israeli citizenship even to one who is married to a Jew or has only one Jewish great-grandparent. The situation of these immigrants is particularly difficult given that Israel is a Jewish State; therefore, they wished to convert to Judaism. Many also regarded themselves, out of sheer ignorance, as “Jewish” before they moved to Israel and very much wanted to be treated as Jewish by mainstream Israeli society. However, most of these people did not wish to be observant of Torah law, which creates a serious halachic problem.
In an attempt to ameliorate this difficult situation, the Israeli Chief Rabbinate established special batei din for conversion. It is reported that the goal of these courts was to facilitate large scale conversion of non-Jewish citizens of the State of Israel by somewhat relaxing the requirements of kabbalat mitzvot.
The Ashdod Case of 2007
It is reported that a convert and her Jewish-born husband were divorced according to Halachah but were denied a beit din ruling to that effect. The beit din is reported to have ruled that it was highly questionable if the woman (and her children) was Jewish, and as such, she could not be granted any document testifying to a Jewish divorce. The beit din went as far as to call into question all of the conversions administered by the special conversion authority due to concern for lack of kabbalat mitzvot of the majority of those whom they converted. The ruling went even further, arguing that the dayanim who sat on these rabbinic courts were disqualified due to their adoption of a lenient standard regarding kabbalat mitzvot. Thus, the Ashdod beit din called into question the validity of a conversion even where the individual in fact did commit to a Torah-observant life and lived as an observant Jew since the conversion. The basis of this ruling is the requirement for a beit din to administer a conversion (Yevamot 46b and Shulchan Aruch 368:3). A beit din consisting of disqualified judges, though, does not constitute a beit din.
Rav Dichovsky’s Approach
The woman appealed the Ashdod beit din’s ruling to the Rabbinic Court of Appeals in Jerusalem. Rav Shlomo Dichovsky, a long time member of this special beit din, ruled in a number cases such as this40One such ruling appears in Techumin 29:267-280. that although he would not necessarily have administered many of these conversions, he cannot nullify the conversions b’diavad. In this case, as well, Rav Dichovsky validated the conversion. While he agrees that kabbalat mitzvot constitutes an absolute requirement, Rav Dichovsky focuses on the fact that it is quite possible that during the actual moment of conversion, the immersion in the mikvah, the convert sincerely accepted the yoke of Torah, even though he did not observe mitzvot either before or after the conversion. Rav Dichovsky writes:
Anyone who has ever been present at at a conversion is aware that it is a very emotional experience for all of those in attendance, especially, of course, for the convert. It is very likely that in that emotion of the moment of immersion, she indeed was fully committed to Torah observance and only later veered from the [Torah] path.
Rav Dichovsky (following Rav Kook, Teshuvot Da’at Kohen 153) even proves his argument from the fact that the entire Jewish people converted at Mount Sinai, as stated by the Rambam (Hilchot Issurei Bi’ah 13:1-3). This conversion was recognized by none other than Hashem, even though the vast majority of the people worshipped the Eigel HaZahav only forty days after that great moment!
Rav Avraham Sherman strongly rejects Rav Dichovsky’s approach. He argues:
The test of Kabbalat Mitzvot is not measured by that moment in which she makes the oral declaration that she accepts the Mitzvot, as Rav Dichovsky states. The true test is the factual circumstances, the lifestyle of the convert before the moment of immersion. Her shared life with a man who is removed from Torah and Mitzvah observance and her life in a society that does not observe Torah and Mitzvot reflect what occurred at the moment of acceptance of Mitzvot. There is no logic and one cannot even consider removing that specific moment from the continuum of a secular lifestyle devoid of a religious life of Torah and Mitzvot and declare that at that moment there was a revolutionary movement of entering the Jewish religion, its principles, beliefs, and Mitzvot when a moment after the conversion there is no expression and actualization of the religious movement that occurred, as it were, in her heart.
Rav Moshe Feinstein’s Ruling
Interestingly, Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 3:4) grappled with this issue in a 1968 ruling regarding a case that occurred in Winnipeg, Canada. A non-Jewish man converted, apparently under the auspices of an Orthodox rabbi, and married a Jewish woman in an ostensibly Orthodox ceremony. The rabbi, however, did not require a brit milah, since the man already had been circumcised. In such circumstances, it is a matter of dispute as to whether ritual removal of blood (hatafat dam brit) is required (see Tosafot Shabbat 135a s.v. Lo Nechleku). This dispute remains unresolved, and as such, hatafat dam brit is done out of doubt (Shulchan Aruch Y.D. 268:1). The couple divorced civilly, whereupon the husband disappeared, leaving his wife without a get. Since the local rabbis felt that it was impossible to obtain a get for the wife, they asked Rav Feinstein if it was possible to invalidate the marriage by declaring the conversion null and void due to the man’s lack of kabbalat mitzvot.
Rav Moshe writes that if an Orthodox rabbi administered the conversion one should assume that he properly performed the ceremony in accordance with Halachah, even though the fact that he did not require hatafat dam brit reflects poorly on his fidelity to Halachah. Nonetheless, since in this case “We saw that he did not refrain from the Torah’s prohibitions even one day,” it indicates that he never accepted the observance of Torah and mitzvot. Rav Moshe, though, raises the possibility that perhaps at the moment of immersion he sincerely accepted mitzvot (similar to Rav Dichovsky’s assertion).
Rav Moshe seriously considers this as a possibility, as we find cases in Halachah where we are concerned that a person experienced an immediate change of ideology. Rav Moshe cites the ruling of the Shach (Y.D. 1:8) validating the kashrut of an animal slaughtered by a shocheit (slaughterer) who converted to another religion later that very day. The Shach assumes that the fact that he converted later that day does not reflect that the slaughterer was an apostate at the time of the slaughter.41A slaughter performed by one who professes another religion is invalid; see Chullin 5a. Rav Moshe, however, notes that the Shach rules accordingly only because before the slaughter, the shocheit was a Torah-observant Jew. Thus, in a conflict between the chazakah (status quo) prior to the slaughter and after the slaughter, the Shach rules we follow the prior chazakah (chazakah d’mei’ikara).
Accordingly, Rav Moshe suggests that since the husband was not observant either before or after the conversion one may assume that at the time of conversion he remained the same as he was before and after that moment and that it is obvious that the husband’s acceptance was insincere and therefore invalid. Rav Moshe is inclined to invalidate the conversion, but in practice, Rav Moshe permitted the woman in question to remarry without a get only due to a s’feik s’feika, a double doubt. Perhaps the conversion is invalid due his insincere acceptance of mitzvot, and perhaps the conversion is invalid due to the failure to perform hatafat dam brit. Most relevant to our discussion is that Rav Moshe considers Rav Dichovsky’s argument and regards it as at least somewhat of a possibility. Thus, Rav Moshe resolves the argument between Rav Dichovsky and Rav Sherman with an assertion that there is a bit of merit to Rav Dichovsky’s argument.
Invalidating the Rabbinic Courts
However, Rav Sherman’s argument invalidating the members of the special conversion batei din appears difficult. Rav Sherman does not cite Rav Moshe Feisntein’s “limited justification” of those rabbis who adopt a lenient approach to kabbalat mitzvot (Teshuvot Igrot Moshe Y.D. 1:160). Although Rav Moshe does not endorse the lenient approach, he does not rule that those rabbis who adopt the lenient approach are thereby disqualified from serving as dayanim. Moreover, Rav Moshe (Teshuvot Igrot Moshe Y.D. 1:159) refrains from counseling a practicing rabbi to spurn the lenient approach to kabbalat mitzvot: “Since there are many rabbis who accept converts such as these, and thus I do not pronounce prohibitions [to perform such a conversion]….You should use your best judgment on how to act in this situation.”
Rav Moshe understood the pressure faced by Orthodox rabbis serving less-than-Orthodox congregants, and while he does not endorse converting someone who in all likelihood will not observe mitzvot, he does not condemn it either. Orthodox rabbis are faced with the same quandary as to how to service the majority of non-observant Jews in the State of Israel. While there are certainly different approaches to this issue and the majority opinion favors the strict approach, those rabbis who adopt the lenient approach are following a legitimate minority opinion in Halachah and should not be disqualified from serving as dayanim.
Moreover, even Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 1:35), who strongly advocates the strict approach and criticizes those who adopt the lenient approach,42Rav Shlomo Zalman contends that those who are lenient are in violation of the prohibition to cause others to sin (lifnei iveir), because according to what they believe to be the Halachah, they are putting the new converts into situations in which they certainly will violate many Halachot. does not state that those who adopt the lenient approach are invalidated as dayanim. Moreover, the dayanim of the special conversion courts are following in the footsteps of Rav Ben-Zion Uzziel, who famously advocated a lenient approach to conversions. It is shocking to find Rav Sherman condemning the rabbis of the special conversion courts as rejecting “all Halachic authorities”.43Rav Sherman himself considers Rav Uzziel as a legitimate halachic authority, as he cites him on p. 43 of his lengthy responsum. It would be more accurate to state that they reject “nearly all” poskim. Rav Moshe Shternbuch (Teshuvot V’Hanhagot 1:611 and 4:230) also does not rule decisively that the lenient dayanim are disqualified, for “They believe they are performing a Mitzvah.” Indeed, Rav Gedalia Axelrod, a dayan in Haifa who adopts a very strict stance towards conversion standards44See his essay in Shurat HaDin vol. 3. rules that the lenient rabbis are not disqualified.
Conclusion
Mainstream Halachah recognizes a conversion only if the convert sincerely intended to lead a fully observant Torah lifestyle. A conversion conducted by Orthodox rabbis who follow the minority opinion for a convert who did not observe Torah either before or after conversion is regarded by Rav Moshe Feinstein as safeik, possibly invalid (also see Teshuvot Igrot Moshe Y.D. 3:109:1). Therefore, one who underwent such a conversion must reconvert when he is ready to fully observe Torah law. On the other hand, if someone was married to such a convert, the marriage can be dissolved only with a get.
Conversions performed by Orthodox rabbis who often adopt the lenient approach conversion are not automatically disqualified. If a convert converts under the auspices of a beit din consisting of rabbis who adopt the lenient approach, but the convert observed Torah before and after the conversion, Rav Moshe Feinstein deems the conversion as valid. The practice of rabbis in the United States seems to follow this ruling of Rav Moshe.