“If you’re going into business, you want to sell the product that the most people are going to buy . . ..” (Botnick, 2016)
“I really do think that the effect that we’re seeing on women who are going through a divorce process probably has to do with generic patriarchy that exists in every construct that we live within – religious, and secular, and social, and cultural, right – it’s all patriarchy everywhere.” (Zuker, 2019)
“And that helped me find a middle ground in really adhering to tradition and best if I feel comfortable but doing so in a way that demonstrates our values, certainly our notion of equality and inclusivity. I realized you could take that argument in the opposite direction and you’re not going far enough. But it’s as far as I am comfortable going towards tradition, but at the same time holding up our values.” (Mikelberg, 2020)
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Introduction
This article focuses on the voices of a cohort of rabbis in Ottawa who share their stories of Jewish divorce. Against a backdrop of increasing stringency in the Orthodox world, and intensifying concern for the consequences of inegalitarian Jewish divorce, rabbinic stories point to shifting denominational practice.
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We argue that their narratives expose how the experience of divorce is profoundly contingent and is richly entangled with the twin challenges of egalitarianism and rabbinic concerns for the unity and continuity of the Jewish people itself (K’lal Yisrael). We contend that these challenges are aroused by the fact that traditional Jewish divorce practice is inegalitarian in that men must both initiate and consent to the divorce process, whereas women cannot initiate the get (Jewish religious divorce). This gendered injustice creates the conditions for get abuse, including get refusal or get delay which may further involve extortion to secure more favourable terms in a civil divorce before granting the get (Aranoff and Haut, 2015: 40). This phenomenon is most prevalent in the Orthodox Jewish community, which in turn stakes out the parameters for thinking about Jewish divorce more generally. Get abuse, with its real harm to women and children, is targeted as the problem to which feminist scholarship, feminist activists and rabbinic leadership must respond. Our interviews with Canadian rabbis recalibrate this focus on get abuse to illuminate how the structural inequalities of Jewish divorce are a transdenominational phenomenon that plays out within and across denominational boundaries. Through our original theoretical framework of “troubling orthopraxy”, we parse how orthopraxy (correct divorce practice) is conflated with stringency, and how that dynamic pushes and pulls at divorce practice.
To speak of orthopraxy in the context of Jewish divorce is to acknowledge two (seemingly) contradictory impulses we hear in our interviews. First, all denominations assert their own halakhic (religious legal) practice as normative, authentic, and therefore correct (orthopraxy), while viewing other practice as comparatively stringent or lax. Second, despite this truism, Orthodox practice continues to be held up across denominations as the normative practice to which all other practice responds – even when it manifests as increasingly stringent (troubling practice). Here, correct practice is conflated with increased stringency. This troubling orthopraxy is manifest as the Orthodox gaze. Through this gaze, the Orthodox understanding of the correct interpretation and practice of halakha persists as an authentic marker of Judaism, Jewish life, and practice. Issues of personal status, most often bound up with questions of egalitarianism, are often the flashpoint for these contestations. Whereas the Orthodox gaze sees such practice as divinely mandated, universal, and normative, the non-Orthodox world is compelled to also see questions of law, identity, and status in light of that gaze as it defines itself against and in terms of “tradition”. However, it would be wrong to imagine Orthodoxy as monolithic. Orthodox Judaism encompasses a range of positions that extend from the controversial and marginal Open Orthodoxy (which identifies as Modern Orthodox) to the Modern Orthodox denominational movement (associated with the Rabbinical Council of America), to Haredi forms of Orthodoxy (also known as ultra Orthodox and including Hasidic Judaisms).
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Our interviews highlight how tensions between correct practice and egalitarianism reverberate between and within denominations troubling denominational boundaries and identities.
“Troubling orthopraxy” invokes “troubling” in two distinct senses: as a verb and as an adjective, we seek to trouble orthopraxy and we are troubled by it. Here, we are gesturing theoretically towards the project of “troubling” essentialist categories (e.g. the work of troubling gender in Gender Trouble by Judith Butler (2006)), where we seek to disrupt and make visible the ways in which orthopraxy functions. First, as a verb, we hear in our interviews how stringency conflated with correct practice is “troubling” denominational praxis, especially in terms of egalitarianism. Second, we use “troubling” as an adjective to reflect on how we are troubled as feminist scholars by the ways in which increased stringency, asserted as orthopraxy, shapes divorce practice and negatively impacts women and children.
Theoretically, this work emerges from scholarly conversation between liberal feminists (Adler, 1999; Plaskow, 1994) and Orthodox feminists (Adler, 1971; Greenberg, 1985; Hacohen et al., 2004; Joseph, 2001; Ross, 2004) that theorizes (often theologically) how to understand, negotiate and transform Jewish law (and life). Attending to the gendered expressions of troubling orthopraxies, this project participates in a trajectory of Jewish feminist scholarship that directly engages particular historical gendered experiences and interpretations of the law (Baskin, 2002; Cohen, 2007; Peskowitz, 1997).
In privileging rabbinic voices, we are attendant to several theoretical and methodological hazards. First, we are acutely aware that not all voices are equal. Given the relational power in the processes of Jewish divorce, it is clear that rabbinic voices have an outsized influence on the actual religious process, and therefore upon the experience of women particularly, but of men as well. Second, as feminist scholars, we are attuned to the scholarly problem of discerning women’s voices or experiences from masculinist narratives. Jewish feminist historians like Peskowitz have shown in Talmudic texts that we learn more about the rabbis who speak about women than we do of the women themselves (Peskowitz, 1997). Hearing contemporary rabbis speaking about women’s experiences of divorce is similarly revelatory of their privileged perspectives. Third, and while it is the most obvious risk, foregrounding rabbinic voices necessarily risks replicating precisely those gendered power structures we seek to trouble.
Although this particular article focuses on rabbinic voices, our larger project aims at a “thick” ethnographic approach that learns from different respondents to develop a rich and complex account of particular cultural contexts and phenomena (Shkedi, 2003). Our methodology takes seriously the ways in which this project’s validity depends on a broad circle of stakeholders who represent different social positions and experience divorce practice from a range of locations (Hawkesworth, 2006). Our approach is informed by feminist standpoint theory and methods as it is “communities and not individuals who produce knowledge, and that ‘truth’ is ‘in the discourse’” (Neitz, 2011: 60). Feminist standpoint theory is an epistemology, grounded in Marxist theory, that significantly engages the position and experience of women as both a way of knowing the world and a method through which that knowledge can be critically interrogated (Hartsock, 1983). Within our larger investigation of Jewish divorce in Canada, feminist standpoint theory directs our gaze towards gendered experience, how the process is itself gendered, and the heteronormativity that permeates that process. It also highlights the need to understand how men have participated in and produced knowledge about women, gender, and sexuality within the framework of Jewish divorce. Thus, our focus here on predominantly male rabbinic voices is both an important dimension of our larger research project, and in and of itself worthy of substantive feminist study. Drilling down to largely male rabbinic voices runs the risk of reinforcing their oversized influence. However, it is necessary to focus on their voices in order to trouble that very privilege.
Current research on Jewish divorce focuses on the Orthodox community as the locus of divorce because it is the site of get abuse and because other denominations claim to have resolved the problem of get abuse (Rakeffet-Rothkoff, 1995; Ross, 2004). Get abuse is the consequence of the inegalitarian structure of Jewish divorce. Traditionally, women who are bound to unwanted marriages are known as agunot (plural of agunah) – literally ‘chained’ women (Biale, 1995: 102). A woman could become chained to a marriage if a husband declines to give his wife a get, or if he is missing or presumed dead without confirmation and thus cannot give a get. This asymmetrical gendered process opens up the possibility of get abuse.
In contrast, this article hones in on rabbinic narratives across denominations from a particular city, resulting in a thick account of one community’s interdenominational experience of divorce. We use Ottawa as an entry point for thinking about the Canadian context. From 2016 to 2020, we interviewed twelve rabbis from all denominations (two Chabad, three Modern Orthodox, two Conservative, three Reform, one Reconstructionist, and one with Orthodox training but identifying as non-denominational).
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Although non-Orthodox rabbis can be female, rabbis in Ottawa are predominantly male. Only two of the twelve we spoke to were female and only one was the primary rabbi for her congregation. Two of the rabbis, both male, had experienced Jewish divorce themselves. The rabbis ranged in experience and were aged from 32 to 76 years. Five of the rabbis were born in Canada, four in the US, and three in Europe. Ethnoreligiously, all of the rabbis we interviewed are Ashkenazi (there are no Sephardi or Mizrahi pulpit rabbis in Ottawa); thus, this study does not speak to Sephardi or Mizrahi rabbinic practice.
A further complicating factor for the Canadian context is the state-sanctioned Israeli Rabbinate’s decisions in a variety of cases and public statements that assert authority over Jewish status, not only in Israel but also extending to the Diaspora.
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Given the Rabbinate’s constitution as an Orthodox court whose rulings have increasingly reflected a preference for stringency, we heard from our lay and rabbinic respondents that these resulted in heightened anxieties about the recognition of non-Orthodox practice and identities.
Jewish divorce in Canada: A primer
To make sense of these interviews, and the transdenominational impact of orthopraxy, we offer a brief introduction to the context of Jewish divorce in Canada.
What is Jewish divorce and what are the consequences of failing to divorce?
Jewish divorce is religiously possible because it is outlined in the Hebrew Bible (Deut 24:1–4), which sets up an asymmetrical gendered process where the husband grants the divorce to the passively receiving woman by giving her a written get. These characteristics are reinscribed in the rabbinic discussion in the Mishnah which reasserts the husband’s central role in the divorce ritual and the necessity of his consent (but not hers) (BT Gittin 88b).
According to Jewish law, women cannot secure a religious divorce without a husband’s consent. If a woman fails to receive a get she may not remarry. Her inability to remarry is not only personally tragic, it also signifies a systemic failure. Without a get, if a woman has relations with a man other than her husband, she commits adultery according to Jewish law (Biale, 1995: 183–189). Children of an adulterous union gain the religious status of illegitimacy (known as mamzerim) and cannot marry other Jews (Mishnah Kiddushin 3:12; Yevamot 4:12–13 ). This irreversible status is inherited in perpetuity (Deut 23:3). There is no similar consequence for a man (or his offspring) who engages in sexual relations or procreation without a get (as long as his partner is unmarried). Further, while a woman can refuse to accept a get, her refusal does not preclude the beit din from authorizing the divorce against her will.
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These foundational understandings, as expressed traditionally in halakha, still frame all modern Jewish understandings of divorce (Aranoff and Haut, 2015; Goldstein, 2007; Hacohen et al., 2004). The material context for the divorce process is the rabbinical court, which adjudicates all matters of personal status such as conversion and divorce. It is the beit din that establishes Jewish status and determines who is a Jew and who a Jew can marry. Prior to the modern period and the development of denominations, while women did become agunot, there also existed largely effective social pressures and halakhic remedies which the religious court could apply (Hacohen et al., 2004; Riskin, 1989).
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What is the denominational context for Jewish divorce in Canada?
The story of Canadian Jewish divorce is a modern one, rooted in modern denominational and demographic shifts within the larger North American context. After the Second World War, Canadian patterns follow the American experience of US Jewry coalescing into four denominations, which each have their own relationship to halakha and thus developed their modern divorce praxis. Orthodox Judaism is, as Tamar Ross argues, “a Judaism that consciously embraces observance of halakha, in the face of other options” (Hacohen et al., 2004: 4). For Jewish divorce, as in all matters that require religious legal interpretation, Orthodox rabbis proceed from the understanding that halakha is divinely mandated, can only be interpreted through traditional processes, and cannot be driven by human concerns. It is not that other denominations do not embrace halakha or see themselves functioning within the tradition, but rather that non-Orthodox denominations explicitly acknowledge historical context (and forces) and value the role of the human interpreter in shaping Jewish practice. Denominational differences in Jewish divorce practice, and more critically in how to approach the problem of the inegalitarian structure of Jewish divorce, proceed from these orienting relations to halakha.
Much of the public and modern scholarly discussion of divorce in Canada (and globally) examines Orthodox practice in light of the problem of the agunah and get abuse.
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It is halakha, regarded as fully authoritative in the Orthodox community, that establishes the framework that makes the agunah (and get abuse) possible, and quite simply, it is in the Orthodox community where we hear of most examples of get abuse. Our research interrupts this narrative by asserting that get abuse, even when it is framed as an Orthodox problem, is embedded in transdenominational contexts. Despite the ways in which Orthodox practice is often framed as normative, Orthodox Judaism is neither a majority in Canada nor the US.
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Scholars (and the rabbis we spoke to) often talk about how Canada skews a little more “traditional”. This refers to how, in each denomination, Canadians are more traditionally observant of halakha, and further, that there is a lag of perhaps 20 years in how Canadians follow US religious trends (Schnoor, 2011). While we assert the significance of denominationalism in Canada for divorce, we hear a Canadian preference for traditional practice in our interviews that transcends denominational boundaries and that functions to reinforce orthopraxy in the Canadian context. That being said, we must underscore the potent disjunction, articulated by the rabbis themselves across denominations, between the reality of a largely non-Orthodox (and increasingly unaffiliated) Canadian Jewish community and conceiving of Jewish divorce as an Orthodox problem.
A medium-sized Canadian city like Ottawa (that is large enough to encompass denominational diversity but small enough that interdenominational engagement is the norm) permits a “thick” description of the experience of divorce between and across denominations. We spoke first to local Ottawa rabbis because of their outsized influence on how Jews experience divorce. Across denominations, it is rabbis who interpret the law and oversee divorce practice.
Rabbinical courts
The rabbis we spoke to deliberate carefully about how a couple should divorce. Central to this question is what beit din is viable. The Canadian context for batei din is distinctive in terms of the ways in which the Jewish population is concentrated in cities. Ashkenazi practice is normative, with 80% of the population identifying as Ashkenazi; however, Sephardi practice can be accommodated.
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By default, Orthodox divorces overseen by Orthodox batei din will be recognized by all denominations. In many smaller communities, including Ottawa, there often is not a standing Orthodox beit din, and divorcing parties are referred to other cities either in person or by proxy for Orthodox practice. Historically, Orthodox practice was often recommended by non-Orthodox rabbis in Ottawa; however, this is changing with recently appointed rabbis. Notably, the current Reform rabbi, Rabbi Daniel Mikelberg, who came to Ottawa after serving as a pulpit rabbi in Toronto and Vancouver, states unequivocally that he would not counsel a divorcing couple to go to an Orthodox beit din “because I could never send a couple to a place where both voices would not be honoured” (Mikelberg, 2020). With his experience with the (only Canadian standing) Reform beit din in Toronto, he plans to recommend the Reform beit din to divorcing couples.
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The current Senior rabbi of the Conservative synagogue, Rabbi Eytan Kenter, has never, since his arrival in Ottawa, sent couples to Orthodox batei din but has always struck his Conservative beit din as needed, using a US-based Conservative sofer (scribe trained to write Jewish legal documents) to write the get itself. We heard from several non-Orthodox lay respondents that they themselves reached out to the (Orthodox) beit din, even without rabbinic direction, due to their understanding that Orthodox practice was normative.
How have the denominations responded to the inegalitarian nature of divorce?
All denominations have some response to the charge that Jewish divorce is inegalitarian and to the challenge of get abuse. The historical fact that all of the major denominations found their full expression in the US, and the demographic fact of the sheer disparity in size between the Jewish population in the US and in Canada, predictably shape US-centric denominational practices and narratives. Canadian rabbis are quick, however, to point out that Canada is different and that one cannot predict Canadian practice based merely on US denominational directives.
The Canadian Modern Orthodox response to the agunah problem is framed by the US-centred movement’s leadership and recognizes the injustice of get abuse while consistently drawing its solutions and strategies from halakha and tradition. For the modern Orthodox rabbis we spoke to, the prenuptial agreement is the solution. The Modern Orthodox rabbinate (Rabbinical Council of America) regards a husband’s consent as essential for a divorce to be halakhically valid and has advocated for the use of prenuptial agreements which do not compromise consent. The RCA prenup is a binding arbitration agreement where the bride and groom agree to submit to the binding authority of the beit din. The key to the RCA prenup is the daily financial penalty imposed on a groom who delays delivering a get once the beit din has adjudicated that he must do so.
In Canada, Rabbi Whitman’s project to develop a Canadian prenup responds to the reality that the US prenups simply do not work in Canada because the prenup functions as an arbitration agreement and cannot be recognized by Canadian courts. These agreements would not be upheld in Ontario and Quebec courts because they are religious arbitration agreements and those courts will not enforce them.
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Still, the US-trained Rabbi Scher is optimistic:
I honestly believe that this halakhic prenuptial agreement is working incredibly well. I don’t know of any US Modern Orthodox rabbi that does not insist on [its] being written or being done before any marriage now. So far the success rate is a hundred percent, that every single marriage that has had a prenup agreement, and that has come to an end, the woman has received the get. I can’t make this claim for Canada, because the prenup doesn’t have the same power in Canada. (Scher, 2016)
Acknowledging that prenups are not a pan-Orthodox solution, he continues, “. . . Unfortunately, there are segments of the Orthodox community that are still not signing those prenup agreements” (Scher, 2016).
Still, as a solution, the Modern Orthodox prenuptial agreement signals a sea change in the cultural conversation and practices around Jewish divorce and get abuse. Despite claims of 100% effectiveness, serious concerns about the prenups in general remain. First, prenups do not resolve “classic” agunah cases where a husband is missing or incapacitated; they are aimed at preventing get abuse. They cannot help those who married before the use of prenuptial agreements who cannot avail themselves of its terms.
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Second, prenuptial agreements do nothing to change the structural gendered inequalities that are embedded in halakhic divorce practice. Third, practically, if a man still does not agree to deliver a get, he can still refuse, and in the case of the RCA prenup simply pay the financial daily penalty, leaving the woman an agunah.
In Ottawa, the largest haredi community is associated with Chabad (the Hasidic movement that is best known for its outreach (kiruv) to less observant Jews), whose inclusive mandate has attracted a broad, and often much less traditionally observant, constituency.
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Both of the Chabad rabbis we spoke to have positive views of prenuptial agreements that are in contrast with the more common haredi position that such agreements may result in “get me’usah” that is, “any get that is the product of duress or coercion” (Breitowitz, 1993). In fact, we spoke to them shortly after an Ottawa-wide information session held for rabbis by Rabbi Whitman to inform local rabbis about the status of a proposed Canadian prenup.
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Their participation in this meeting is characteristic of Chabad rabbis who are less insular than other Hasidim (or haredim) and may explain their relative openness to prenups in contrast to other haredim. Rabbi Blum has used both the modern Orthodox RCA prenup as well as Rabbi Whitman’s Canadian prenup and believes that they are an important part of the solution. Rabbi Blum explains his optimism for the plight of agunot:
I think that the good things that are going on now is that rabbis are trying to figure out ways with prenups to ensure that the one who needs to receive the divorce has not been a hostage and so that we can put an end to the agunah situation. I think with that sense, there are a lot of positives going on . . .. (Blum, 2016)
Still, the other Chabad rabbi we spoke to, Rabbi Botnick, although he thinks an effective prenup may be possible in the future, declines to use a prenup, pointing to how they are not always accepted in more stringent circles (here he refers to New York communities) and also that such prenups are not binding under Canadian law. Here we would like to draw attention to how the use or lack of use of prenuptial agreements changes the culture around both marriage and divorce. The use of prenuptial agreements requires a pre-marital counseling session around how a marriage might end and the role of the prenup in the prevention of get abuse. When asked about how he prepared a couple for marriage, if he spoke about issues of get abuse, Rabbi Botnick replied that he did not, and that the couple should
be thinking only about one possibility and that is marriage is going to be forever, okay? No other possibility should enter their mind. We live in a time when the institution of marriage is so fragile that to allow someone to go into it, already entertaining the possibility that it isn’t going to make it, I won’t say assures that that happens, but it makes it a lot more likely. (Botnick, 2016)
Rabbi Botnick is not naïve about the risk of get abuse. He does see get delay and get denial happen and characterizes such behaviours as a “vicious mode” (Botnick, 2016) of behaviour. He does avail himself of halakhic tools to resolve such cases but these are circumscribed by his real concerns “not to make the problem bigger”, signaling his own anxieties about a get being invalidated by those who are more stringent and therefore risking the wife being accused of adultery and the conception of mamzerim (Botnick, 2016).
In Canada, as in the US, every denomination other than Orthodox will find a way to dissolve a marriage if a husband does not consent to giving his wife a divorce. The Conservative movement accomplishes this through its halakhic practices. These include the widely used Lieberman clause (included in the ketuba, the religious marriage contract which, among other things, specifies the husband’s obligation to pay a specified settlement in the case of divorce), which allows either party to summon the other to the beit din for a divorce (and submit to their authority and guidance), the Conservative antenuptial agreement where the husband agrees to provide a get within six months of civil divorce or the marriage is annulled by the Conservative beit din, as well as a series of more extensive halakhic tools for dissolving a marriage.
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Get refusal is not possible in the Reform and Reconstructionist movements, which each assert the egalitarian principle of the right of women to initiate their own divorces as well the power of rabbinical courts to dissolve marriages where a spouse fails to consent.
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Similarly, only Orthodoxy retains the category of mamzerut. The Conservative Committee on Jewish Laws and Standards rendered the category of mamzerut “inoperable”, beginning in 1970 with evolving instructions to rabbis culminating in 2000 with the direction to neither inquire about nor accept evidence regarding mamzerut status (Spitz, 2002: 558). In asserting the validity of civil divorce, Reform Judaism has, from its inception, not required religious divorce, and this precludes the possibility of the status of mamzerut (Central Conference of American Rabbis, 1976). Reconstructionist Jewish sources also treat this as self-evident.
Shifting denominational rabbinic practice
Rabbinic stories expose the denominational fault lines, and symbolic boundaries, that underlie questions of personal status, stringency, and concerns for Jewish peoplehood (K’lal Yisrael) while also illuminating the variability and contingencies of Jewish religious divorce. Their stories richly capture the communal history and the varieties of rabbinic practice and experience. Lamont and Molnár explain, “symbolic boundaries are conceptual distinctions made by social actors to categorize objects, people, practices, and even time and space. They are tools by which individuals and groups struggle over and come to agree upon definitions of reality” (Lamont and Molnár, 2002: 168). We use symbolic boundaries to signal how rabbis distinguish their understandings of shared and different practices and identities. We found that denominational identity or practice are not stable and denominational boundaries are both fluid and porous. Rabbis may be trained in one denomination, and later serve in another denominational community. Synagogues may shift denominational affiliations over time. For a variety of reasons, including marriage and other life choices, individuals (and their children) move in and out of denominational settings, while also acting in ways that potentially change their halakhic status. Religious status and religious marital status affect the ability of Jews to marry each other.
Ottawa rabbinic narratives illustrate how shifts in denominational rabbinic practice can be understood as responses or resistance to troubling orthopraxy. Shifts in practice are most evident in the striking contrast between stories from Ottawa’s past and its present which often concern questions about how and where someone might divorce. Our earliest story comes from the 1970s, told to us by the late Rabbi Emeritus Reuven Bulka (1944–2021), a much beloved and well-respected leader of the Canadian Jewish community. He describes how when he was a young (Modern Orthodox) rabbi in Ottawa he had the case of a man, whom he describes as intransigent, who was refusing to give his wife a get (Bulka, 2016). With no local beit din, Rabbi Bulka enlisted the assistance of the Rabbinical Court in Montreal. He describes how when they had intelligence that the recalcitrant husband would be at his home in Ottawa, “we actually barged into his home, through his bedroom window, and sat there and said ‘we are not leaving here till you authorize the get’”. This “cloak and dagger” story continues as Rabbi Bulka describes how, concerned that the man might revoke the divorce and render it invalid, the others “zipped off to Montreal, wrote the get, and it was transmitted to the lady” while they stayed with the husband until it was complete. Today, much of the increased Orthodox halakhic stringency around Jewish divorce is around the question of coercion that might render a divorce invalid. Rabbi Bulka’s position at the time was clear, this was not coercive: “We said we are not leaving; we did not hold a gun to his head.” In 2016, we asked the then rabbi emeritus if would do it again. He demurred. “I am not sure”, he then replied, and laughed that one might get arrested. Coercion, however, is the issue. At the time, there were well-known cases in the Orthodox world where a husband later recanted and claimed coercion to another beit din who invalidated the divorce. The conflation of correct practice with stringency displaces women, their agency, and their concerns in these rabbinic stories. A woman can be chained again, and troubling orthopraxy opens the door for additional extortion. As we contrast Rabbi Bulka’s narrative with more recent stories, we target the shifting norms around denominational divorce practice that are driven by anxieties about Jewish status, unity, and continuity (K’lal Yisrael). We note how egalitarianism and the impulse for increased stringency each push and pull at the symbolic boundaries that are at stake in Jewish divorce.
Interdenominational cooperation is a celebrated strength in Ottawa that has transformed over time. Rabbis spoke about a history of collegiality and mutual respect that continues to this day. Newcomer Reform Rabbi Daniel Mikelberg reflected on how in medium-sized cities like Ottawa and Vancouver, “when you are looking for collegial support, you’re looking across denominations” (Mikelberg, 2020).
That support takes many forms, historically; in a medium city like Ottawa that collegiality included serving on another beit din. We were not surprised to hear of Conservative rabbis serving on Reform batei din or an unaffiliated rabbi with Orthodox semicha (rabbinic ordination) assisting on a Conservative beit din. We were, however, intrigued to hear how in Ottawa historically cooperation extended to inviting Conservative rabbis to serve on Orthodox batei din. In the past across North America, Orthodox rabbis were willing to work with Conservative rabbis, because many Conservative rabbis came to the Conservative movement after receiving their training from Orthodox seminaries. In Ottawa, Conservative rabbis were known to serve on Orthodox batei din and as witnesses (particularly for the purposes of conversion).
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With Orthodox semicha and the fact that Conservative rabbis were known to be “shomer”, or halakhically observant, Conservative rabbis met the requirements of both rabbinic authority and piety to serve on the Orthodox beit din (or as a witness). As the Conservative movement grew, Conservative rabbis more often received their training from Conservative seminaries instead of Orthodox yeshivot. This led to increased Orthodox questioning about the legitimacy of Conservative semicha and rabbinic piety and observance. The ordination of female rabbis by the Conservative movement also meant that there was an entire cohort of Conservative rabbis who could never serve on a beit din by Orthodox standards. Despite all of this, cooperation on this issue persisted longer in Ottawa than in other locales, perhaps because of the personalities, personal philosophies, and semicha of the local rabbis as well as the practical need for that cooperation. That shared Ottawa practice has all but disappeared over time, reshaping the terrain of interdenominational cooperation and signaling a shift in the symbolic boundary of who belongs within a shared community of practice (i.e. who is a legitimate rabbi, judge, or acceptable witness).
We heard from Reform rabbis of a history of variable practice over the last 25 years in Ottawa that illustrates how Reform rabbis (and the Reform movement more generally) have both resisted and responded to the Orthodox gaze and troubling orthopraxy. They described how their movement and the conversation about divorce has changed, in the larger Jewish community, in the secular world, and in their denomination. From a US perspective, the conversation has moved from less concern about the consequences of non-halakhic divorce to a growing awareness of the need for spiritual closure, and more urgently, towards concern about the intergenerational impact of non-halakhic divorce practice.
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Since the 19th century, the US-based Reform movement has grappled with the question of whether a halakhic divorce was even necessary (Jacob, 1980). Against the backdrop of American understandings of the separation between Church and State, the Reform movement affirmed that a civil divorce was sufficient because of the principle of “dina d’malchuta dina”, or “the law of the state is binding”. Individual Reform rabbis (in the US and Canada) were always empowered to recommend halakhic divorce processes either under their own auspices or by sending divorcing couples to Conservative or Orthodox batei din. Today, on the Canadian Council for Reform Judaism website, the section on Jewish divorce notes that the Reform Rabbis of Canada (which serves as a rabbinical council across Canada) provides (Reform) gittin (Canadian Council for Reform Judaism, 2014).
While denominational flexibility opens up a space for an evolving plurality of divorce practice, stories from Ottawa point to the importance of local context. In Ottawa, rabbis also face a reality that is informed by local history and communal norms. Ottawa rabbis describe how in the more traditional Canadian context there has always been consistent advocacy for religious divorce whenever possible, especially in the case of women of childbearing age. Rabbi Emeritus Steven Garten is pragmatic about advising divorcing couples to secure the most universally accepted, that is the most halakhic get, possible: “in terms when it comes to gittin [pl. of get], I tell people that if you’re starting a new family you do not know what the future holds for your child, and you should maximize the possibility of that child being integrated into the Jewish community” (Garten, 2016). These tensions are exacerbated by the inegalitarian dimensions of divorce practice that rabbis recognize are inconsistent with the Reform movement’s contemporary understandings of gender roles. The same synagogue’s newest rabbi, Rabbi Mikelberg, has precisely the same concerns and explicitly draws the line at recommending Orthodox practice. “I would never send a candidate to an Orthodox institution for proceeding with the get because I could never send a couple to a place where both voices would not be honored and heard” (Mikelberg, 2020). Garten and Mikelberg affirm the legitimacy and Jewishness of Reform divorce practice, and reject the category of mamzerim as repugnant. Both are balancing their commitment to egalitarianism against their understandings of tradition, their rabbinic responsibility to future generations, and to K’lal Yisrael. Rabbinic stories about divorce speak to ways in which troubling orthopraxy, stringency conflated with correct practice, can conflict with their own personal and denominational understandings of gender justice and the status of egalitarianism in Jewish life as a theological and ethical value.
K’lal Yisrael and egalitarianism
I guess what matters is K’lal Yisrael. Things can get messy and we have to do the best that we can. (Mikelberg, 2020)
Jewish divorce practice is so fraught because failure to divorce correctly endangers the ability of Jews to marry each other in future generations and therefore imperils K’lal Yisrael. In a document outlining guidelines for conversion, the Reconstructionist Rabbinical Association makes a powerful statement regarding the relationship between Am Yisrael, Jewish Peoplehood, and Jewish practice:
As Reconstructionist rabbis, we understand Jewish identity to begin with a sense of belonging to and being part of the Jewish people. Our participation in the cultural, religious and spiritual traditions of Jewish civilization leads us to engage with Jewish ritual and ethical behavior, as well as with Jewish spiritual practice. (RRA, 2009: 10)
All questions of Jewish status are not only personal, but they also have profound import for K’lal Yisrael. K’lal Yisrael is not only descriptive, it is also deeply rooted in Jewish culture and tradition, expressing the normative existential and theological conviction that Jewish continuity and unity are inextricably linked. K’lal Yisrael and egalitarianism work together and against each other, forging a crucible for divorce practice itself.
Egalitarian concerns are critical to progressive denominational identities, but they are also at play in Orthodox circles where feminist critiques are taken seriously even if refuted in the most traditionalist communities. We see in Ottawa how the challenges of egalitarianism play out in Modern Orthodox congregations, where modern Orthodox rabbis and their congregations very much engage with a secular world that normalizes women’s agency and autonomy. Ottawa Modern Orthodox synagogues have women hold key institutional and educational roles, engage in conversations around the title of rabbi for women, and regularly promote women’s issues and concerns in synagogue programming. Invoking K’lal Yisrael and the need for universally acceptable divorce practice, the inegalitarian nature of Jewish divorce is formally acknowledged but structurally unchallenged in the Ottawa Modern Orthodox community. Rabbi Idan Scher is clearly proud of the “100% success rate” of women receiving their gittin in marriages that began with the RCA prenuptial agreement (Scher, 2016). If the principle of K’lal Yisrael is aimed at the unity of the entire Jewish people, the solution of prenuptial agreements does nothing to address get abuse in the haredi world or in cases that did not include prenups. From the point of view of egalitarianism, it further does nothing to change the structural gender injustice of Jewish divorce itself.
The wedding and divorce practices of one Conservative rabbi throw this tension into sharp relief. For weddings, Rabbi Kenter fully accepts female witnesses and recommends the Conservative prenuptial agreement that proceeds from Conservative commitments to egalitarianism. However, for divorce, because of concerns for K’lal Yisrael and awareness that non-Orthodox practice could invalidate the get, he recommends “traditional” practice including male witnesses. This choice is very deliberate; he explained his rationale: “I attempt to the best of my ability to assure that no get is not accepted because of a choice that I made” (Kenter, 2016). However, he speaks with pride that he affirms egalitarianism by consciously interrupting Orthodox norms in choosing a female scribe to write the get (which is fully acceptable by every standard of halakha).
Because of their denominational and personal egalitarian values, neither Reform nor Reconstructionist rabbis accept the possibility of either agunot or mamzerim. In their view, the root cause of these injustices is not theologically ordained, but is historically constructed. In both denominations, the egalitarian principle demands a reframing of Jewish divorce law where it is possible for women to initiate divorces and, when needed, for rabbis to authorize divorces without a spouse’s consent (in cases where a spouse is unethically denying a get). In Canada, with a preference for traditional Jewish practice, Canadian rabbis have been much more likely to assert the need for a get than their US counterparts. This does not risk get abuse as the Reform and Reconstructionist divorce process is explicitly egalitarian. Egalitarianism, as a matter of Jewish theology and ethics, demands a reset of normative divorce practice. This reset, however, when viewed through the Orthodox gaze, is inevitably a threat if not a rupture of K’lal Yisrael because of its potential impact on Jewish status and the ability of Jews to marry each other. However, as the following story demonstrates, the normative Orthodox policy of not accepting non-Orthodox divorce can also be viewed as deeply damaging to K’lal Yisrael. Rabbi Garten recounts how a couple had divorced, with his guidance, through a Conservative divorce process. The woman wished to remarry with a particular Orthodox rabbi officiating, and when the ex-husband was unwilling to cooperate, Rabbi Garten was asked to intercede on her behalf. The ex-husband declined again, declaring that they were divorced Jewishly. Garten reflects, “[i]s that an agunah? I don’t consider [her] an agunah . . . she had a divorce, she had a get” (Garten, 2016). This is a rabbi who describes himself as from the “right-wing of the Reform movement” and a more “traditionalist” Reform rabbi. He has always advocated for religious divorce but, and this is also traditional and fundamental to Reform Judaism, he also asserts the legitimacy of non-Orthodox divorce (such as the Conservative divorce in this story) and unequivocally affirms an egalitarian understanding of Judaism and Jewish practice. When asked to reflect on his practice in light of questions of K’lal Yisrael, Mikelberg thoughtfully responded:
I guess, the way I deal with that is, to the best of my knowledge, everyone except for the Orthodox recognizes Reform Get, so to the best of my knowledge, Conservative rabbis do recognize Reform Get. And I have rationalized for myself that if that’s not the case . . . I have recognized for myself that Orthodoxy does have their own set of rules instead of standards. And nothing I do is going to be accepted in that direction. I’ve come to terms with that, and I’m okay with that. And I also trust that for my couples, or my dissolving couples, if they find themselves down the line needing a more traditional Get and the avenue is there for them to do so, I’m certainly okay with that. That’s not an avenue that I could pursue for them but it’s certainly an avenue that I could direct them to the right place. (Mikelberg, 2020)
Reconstructionist responses to get abuse proceed from denominational conceptions of the “relationship between Jewish law, Jewish practice and the primacy of core Reconstructionist values around egalitarianism and social justice” (Cedarbaum, 2016). As Cedarbaum notes, because Reconstructionist Judaism has its origins in Conservative Judaism, Reconstructionist Judaism tends to have a “strong claim that halakha is binding but is also characteristically more radical in its interpretation” (Cedarbaum, 2016). In the context of divorce, we hear from Rabbi Elizabeth Bolton, this joint commitment to core Reconstructionist values and a serious but ultimately radical engagement with the halakha. Her calculus of how a couple might religiously divorce begins with the ketuba:
the reason I ask couples if they have a ketuba, even a ketuba-like document, is because when you are intending to create another intimate partnership and you’ve had an intimate partnership that you celebrated publicly, in community and family, that there is a psychic, emotional, and spiritual value to . . . [acknowledge] that change . . .. (Bolton, 2017)
This is a radical reframing of the halakhic question about the relation between ketuba and get. While Rabbi Bolton sees this question as “neo-halakhic (hence both significant and open to a retooling informed by specific egalitarian values)”, she and the other non-Orthodox rabbis we spoke to were very pragmatic about the issues raised by non-Orthodox gittin (Bolton, 2020). Given their commitments to egalitarianism, what is so interesting about both the Reform and Reconstructionist rituals, from the perspective of thinking about troubling orthopraxy, is that they come with “warning labels” from rabbis that divorcing couples must be educated that non-Orthodox divorces do not satisfy Orthodox requirements for a halakhic get (Simeon, 2012; Stein, 2001). This exemplifies how the Orthodox gaze demands Orthodox standards around halakha. This in turn triggers non-Orthodox concerns for K’lal Yisrael and an acknowledgement that non-Orthodox practice will not be universally accepted. Reform Rabbi Morais’s explanation shows how this dynamic has been internalized in non-Orthodox thinking:
[Using Reform practice] creates certain problems potentially for couples as they divorce and remarry and have kids . . . here is the scenario: I grant a divorce to a nice young couple when they have no kids but [that is] fine. So, they then have this Reform get from me . . . they then move on, they get married, they have children, these children grow up and they choose to participate [in Jewish life] more traditionally. Their more traditional community won’t accept their parent’s previous get and in theory their parents are still married to a previous partner . . .. (Morais, 2016)
As we shall discuss, this is an example of how orthopraxy and anxieties about K’lal Yisrael work together to push and pull at egalitarian practice.
A blunt question and symbolic boundaries
As scholars, we centre gender justice in our analysis by asking the blunt question, what would a rabbi do when faced with a potential agunah? Would they find a solution and free her from a dead marriage? Responses varied depending on the relationship to egalitarianism, questions of social justice, halakha, and the range of halakhic choices denominationally available to each rabbi and further clarified how these questions inform symbolic boundaries between and among denominations.
This blunt question pushed haredi and Modern Orthodox rabbis to affirm the integrity of the halakhic system and admit that agunot was a tragic possibility. The late Modern Orthodox rabbi, Rabbi Bulka, acknowledged that individual batei din and individual rabbis are largely helpless in the face of a recalcitrant husband today. Bulka advocated on behalf of agunot for more than 50 years. He had an active role in the leadership of the RCA and was involved in the development of Section 21.1, the section of the Canada Divorce Act that is aimed at addressing get abuse. He illustrated the persistence of the problem, “The beit din [would] say [to the husband] ‘you have to give the get’, and he says, nothing doing,’ so what can we do?” (Bulka, 2016). Still, Rabbi Bulka was unequivocal about the untapped collective power of rabbis to prevent get abuse,
You can’t look me in the face and say to me that if every single rabbinical court that had to do with divorce got up and said two things, number one no ransom, number two, no membership in the Jewish community, and if you die you’re buried outside the Jewish cemetery, who is going to be a recalcitrant husband? There won’t be any, so in a sense with all of the solutions that were looking at on the outside right, if the rabbis were as rabbis should be, we wouldn’t have this problem, we would not. (Bulka, 2016)
Historically there were halakhic solutions to such cases as well as a will to advance halakhic strategies to respond to changing circumstances. This is the cost of troubling orthopraxy, where traditional rabbinic autonomy and innovation are stifled, and women remain chained.
Conservative, Reform, and Reconstructionist rabbis all asserted that they would find a solution for every agunah – for every woman who sought to remarry Jewishly. With their own strong commitments to halakha, Conservative rabbis relied on their own movement’s halakhic tradition to find solutions that they viewed as both legal and just. Rabbi Eytan Kenter explains how in his own rabbinical training, he was given a range of halakhic tools to prevent agunot “to the best of my ability” (Kenter, 2016). Although the first line of the defense for the Conservative movement is always the pre-marital agreement (whether the Lieberman clause or an ante-nuptial agreement), Rabbi Elliott Dorff, Chair of the Rabbinical Assembly’s Committee on Jewish Law and Standards, is explicit that even in cases where no pre-marital agreement exists, Conservative rabbis will not allow a woman to remain an agunah because a husband refuses to grant a divorce. In such a case, the Rabbinical Assembly’s beit din will first annul the marriage, and then, because divorce is standard to dissolve the marriage even in the case of annulment, the beit din further requires the husband to give his wife a get (Dorff, 2017). Conservative rabbis claim their process as halakhic even though they recognize that Orthodox interpreters would reject that claim. While we as scholars see the tensions in his practice where, for example, Rabbi Kenter declines to use female witnesses in gittin, he asserts that his practice is fully egalitarian and halakhic; “One of my underlying principles is that my commitment to egalitarianism does not come at the expense to my commitment to halakha, that I think the two of them can exist in concert” (Kenter, 2016).
For Reform and Reconstructionist rabbis, especially, this is a straightforward calibration: each denomination has its own rituals for formally ending Jewish marriages to allow Jewish remarriage. They would claim that their response is in continuity with tradition even though they would fully admit that their practice is not halakhic by Orthodox standards. Reform and Reconstructionist rabbis assert that their practice is an evolution of halakha, albeit radical, in the egalitarian interest of freeing the agunah. Such solutions are in ethical continuity with the Jewish tradition’s values of human dignity and social justice. And while they will engage with traditional halakhic processes as much as their conscience permits in the interest of K’lal Yisrael, for Reform and Reconstructionist rabbis, the gendered asymmetry of Jewish divorce is emblematic of the disconnect between traditional halakhic processes and modern understandings of Jewish values. This is illustrated powerfully in a story from Reconstructionist Rabbi Elizabeth Bolton. She describes one case where a civilly divorced ex-husband wished to remarry and sought a get before proceeding. The ketuba had not been Orthodox, and so Rabbi Bolton was not recommending an Orthodox get. The wife did not agree to participate. Recall that if a wife does not consent to accept a get in an Orthodox case, the beit din can override her lack of consent (see Note 11). However, Rabbi Bolton did not avail herself of the traditional halakhic solutions that are rooted in the gendered injustice of halakhic practice that reinscribe women’s passivity in the divorce ritual. For Rabbi Bolton, for ethical and spiritual reasons, for Jewish reasons, neither party should be able to chain the other party to an unwanted marriage. Rabbi Bolton subversively turned to the model of the proxy instead. In completing the get in this way, Bolton explains the wife “knew that it was going to take place without her involvement. That . . . was—as far as I was concerned, necessary. Her get could not be dissolved without her knowledge. But it was going to be dissolved without her participation” (Bolton, 2017). When queried about the wife’s consent here, Rabbi Bolton argued that the wife did consent: “consent, in other words, consent meaning, I’m not blocking my ex-spouse’s desire to do this. It has no meaning for me. I don’t care.” This is very different, for example, from a story we heard from one Orthodox rabbi who, when faced with a similar lack of consent by a wife, discreetly signaled to us that her refusal could also be overturned through other halakhic means that would inevitably be damaging to her reputation should that solution become public. The mere threat of such strategies resulted, in that case, in the woman consenting despite her original refusal. Reflecting on the inegalitarian structures of Jewish divorce, we are struck by the different valances that are attached to men’s vs women’s consent in these cases.
Stringency and K’lal Yisrael
“It’s my sense that we live in a binary world, we are Orthodox and non-Orthodox . . ..” (Garten, 2016)
Modern Orthodox and Chabad rabbis acknowledge that there are halakhic solutions to husbands delaying or refusing to grant a get that they believe are valid. However, they will not resort to these solutions because there are those who are more stringent who might deem the divorce invalid if they are applied. For Chabad rabbi Yehushua Botnick, this reality makes it self-evident that one should observe rigorous Orthodox practice. He confirmed that the central calculus was what will be most broadly accepted in his own estimation of the economy of Jewish divorce:
It also makes sense purely from a practical viewpoint. In business, for example, a successful businessman knows to market what there is demand for. Whether he needs or appreciates a particular set of extra features is irrelevant. He will market what the broadest group of customers want. It doesn’t make sense to apply a different standard to religious matters. Take kashrus, for instance: if a kosher restaurant opens up but maintains weak kashrus standards, it will effectively have cut off its potentially most loyal clientele. On the other hand, if it caters to the highest standards including kashrus standards, the people who care most about kashrus will also patronize that vendor. Most people who think the matter through realize that the point is even more compelling with regard to gittin. Once a couple is prepared to go through with a get with all that entails, including facing the emotions as well as arranging for and covering the cost of writing and delivering a get, they want to make sure that it’s going to be recognized anywhere that they, their children or grandchildren might need it to be accepted. (Botnick, 2017)
By framing the question using the metaphor of the most pragmatic consideration of all, the financial, this rabbi is pointing to the logic by which troubling orthopraxy normalizes stringency through appeals to K’lal Yisrael. Although this rabbi, and others we interviewed, present this question of orthopraxy as pragmatic (universal, inclusive, and mutually agreed to), it is, in fact, unidirectional – an Orthodox gaze that sees its practice as correct and real where the competing standards of other non-Orthodox groups can and should be subsumed to that orthopraxy. Rabbis who take this position understand that they may be doing violence to the other’s religious or ethical standards but feel they have the choice.
Questions of stringency and K’lal Yisrael inevitably turned to questions of personal status and examples of conversion instead of divorce. In particular, both Modern Orthodox rabbis Bulka and Scher were acutely aware of the controversies around the Israeli Rabbinate invalidating diaspora conversions. In conversation it was clear that for Rabbi Bulka there was overlap between these two issues, as he explains:
it’s gotten a little bit out of hand. Because maybe with good intentions, to say we are going to take the high road, and insist on the highest possible standard, or something close to it. When in effect you don’t really need to. There are so many responsa that allows for flexibility in this. (Bulka, 2016)
Modern Orthodox rabbis acknowledge that this conflation of stringency with correct practice is disturbing and has far-reaching consequences. We can hear in their accounts their efforts to negotiate their own commitment to halakha and K’lal Yisrael against the realities of their congregations’ history of the practice, their own denominational policies as articulated by the RCA, shifting standards of stringency across the Orthodox world, and ultimately Israeli rabbinate policies that threaten invalidation of their own practices.
As we have seen, troubling orthopraxy disturbs not only Modern Orthodox divorce practice but reverberates through other denominations as well. Conservative rabbi Eytan Kenter explains his own choices to try to be accepted according to Orthodox standards as driven by the demands of K’lal Yisrael. Yet Kenter also recognizes that there are always more stringent positions such that there is no consensus of correct practice. He elaborates:
Again, that doesn’t mean that everyone has to accept everything, because I can only go so far to the right with things that I’m able to do just by the nature of who I am and who would accept me anyway, and I can only go so far to the left and still be within my own personal halakhic comfort zone so it doesn’t mean that there are no limits to these things, but the more people want to make their limits larger rather than make their limits smaller the better served I think we’ll all be. (Kenter, 2016)
For many non-Orthodox rabbis we spoke to, there is frustration that increasing stringency in the Orthodox world is contributing to a sharper demarcation between their own practice and Orthodox practice. This is manifestly painful to non-Orthodox rabbis who see themselves as working in the interest of K’lal Yisrael.
For all the Ottawa rabbis we spoke to, the unity of the Jewish people (and their ability to marry each other) is at risk. Given the normalization of stringency among the halakhically observant and the ways in which that stringency is increasingly alienating to the non-halakhically observant, we asked what the future would bring? One non-Orthodox rabbi first responded with the rhetorical challenge, “Let them go. Let it be a separate ship”, but continued to frame the problem in ethical terms, “if there’s no wake up, if there’s no epiphany [to make a real change] . . . at least for the diaspora Jewish world, people will continue to go with their feet”. This warning of a halakhic/non-halakhic fault line in the Jewish world, echoed in different ways by rabbis from all denominations, speaks to deeply rooted communal anxieties that the Jewish people face an existential threat: a broad collapse of K’lal Yisrael.
Conclusion
So, I believe that there is more that we share than what separates us and that we all are brothers and sisters. But that doesn’t mean that we do things all the same. But that doesn’t mean we don’t quarrel along the way. It certainly doesn’t mean that we don’t find ourselves in scenarios that can be really painful. (Mikelberg, 2020)
As non-Orthodox Jewish feminist scholars, we assert that the seeming intractability of get abuse in Canada and abroad is inextricably intertwined with the inegalitarian structures and processes of Jewish divorce that we have presented in this article. As we have argued, divorce practice is bound up with the conflation of stringency and orthopraxy which in turn reinscribes inegalitarian dimensions within a transdenominational context. Impulses for orthopraxy foreclose future strategies while also constraining historical remedies which may have functioned in the past (Ross, 2004; Warburg, 2013). The struggle to balance the imperatives of K’lal Yisrael and the value of egalitarianism is acute for these Canadian rabbis, who feel the weight of a preference for orthopraxy in their own communities as well as the transnational pressure for increased stringencies that continues to reverberate throughout the Jewish world.
Attending to the Canadian experience of Jewish divorce through a denominational lens does important work in disentangling systemic and local factors. Developing original ethnographic data from Canadian rabbis from Orthodox and non-Orthodox settings alike makes visible how framing get abuse as an Orthodox experience obscures how the inegalitarian nature of Jewish divorce extends beyond the confines of the Orthodox world and illuminates the structures of Jewish divorce practice itself. Canada’s denominational history and landscape, its concentration and dispersion of Jewish communities, and its specific civil limits on prenuptial agreements shape Jewish divorce in distinct ways.
This Canadian story is very much the story of how rabbis, across denominations, wrestle with egalitarianism and K’lal Yisrael. Although rabbis always decry that any agunah is a tragedy, rabbinic constructions of that tragedy vary in ways that corresponded to their denominational commitments and relationship to halakha. Those with the strongest commitments to stringent interpretations of halakha, driven by traditional processes, are more likely to view get abuse as a matter of “bad seeds” – individual bad faith actors. Conversely, those whose commitment to halakha includes a historical understanding of halakha as developing in human contexts tend to view get abuse as enabled by unnecessary stringency and rabbinic inadequacy that fails to make use of all available solutions. Between these poles is a spectrum of responses on what can be done to prevent, and resolve, get abuse. As one might expect, this spectrum of responses has a strong correlation with the calculus of the weight of the claim of egalitarianism vs the weight of the claim of K’lal Yisrael.
We assert that each position represents conscious theoretical and methodological halakhic choices. We resist ahistorical accounts of “tradition” that obscure the processes that produce diversity of practice (both within and outside of Orthodoxy) and which further naturalize Orthodox paradigms. What is so interesting is how the Orthodox gaze frames the demands of K’lal Yisrael. Troubling orthopraxy pushes for stringency as correct practice while pulling more progressive practice to pragmatically accede, where possible, to the necessity of “universal” correct practice in the name of K’lal Yisrael. The irony is that the rigidity inherent in this dynamic necessarily results in cleavages in K’lal Yisrael where some Jews cannot inhabit Orthodox practice, and they or their children are no longer recognized as having Jewish status and being within K’lal Yisrael.
Jewish divorce impacts women in particularly gendered ways but is largely interpreted and practiced by male rabbis. Women bear the burden of the unresolved tension between the claims of egalitarianism and K’lal Yisrael. Rabbinic behaviour is key to parsing these tensions and untangling the gendered, systemic, and procedural context of Jewish divorce. We hear troubling orthopraxy, operating in multiple directions – sometimes driven by rabbis themselves, sometimes driving rabbis to respond, and always shaping a landscape which rabbis must negotiate. Given their outsized influence on the process, we found that rabbinic stories illuminate how orthopraxy both drives and is driven by their concerns. Their stories are a window into the complexities that laypeople and clergy are trying to navigate. Focusing on rabbis, who stand as authoritative voices for the tradition, allows us to target the ways in which the divorce process is profoundly gendered and surprisingly contingent. This in turn points us towards hearing these voices within a framework of hegemonic masculinity which enables us to disrupt traditional narratives that frame “Judaism” (and Jewish practice and knowledge) as natural, unified, unchanging, and coherent.
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Finally, listening to rabbis allows us to hear, contrary to hegemonic naturalizing impulses, how rabbinic voices are also constructed, mediated, gendered, and contextual. In doing so, we trouble orthopraxy, making visible the internal hierarchies of value, authority, and authenticity that are key to both upholding and challenging divorce praxis.
