Rabbi Yitzchak Yehuda Shmelkes (1828-1904) was one of the leading rabbis in the latter part of the 19th century in Eastern Europe. He was the head of the rabbinical court in Lvov (Lemberg) from 1869-1893. His Beit Yiẓḥak (6 vols., 1875–1908), on the four parts of the Shulkḥan Arukh, was widely acclaimed. His opinion on halakhic questions was sought by many prominent contemporary scholars. Rabbi Schmelkes made a number of particularly influential rulings in new areas of Jewish law. Regarding copyrights, he argued that an author’s exclusive right to publish their manuscript derived from the Jewish law of unfair competition and the author’s property right in controlling access to the physical manuscript, a position held by many contemporary authorities in halakhic copyright law. Rabbi Shmelkes also dealt with the question of the use of electricity, other than electric lights, on Shabbat. He ruled that one could apply the category of molid, creating something new, to the generating of electric current. This position was widely adopted for many years, although recently it has been challenged by a number of contemporary poskim.
In the current teshuvah, Rabbi Shmelkes deals with a case of conversion for the sake of marriage where it is highly questionable if the prospective convert really intends to live an observant life. Rabbi Shmelkes first rules in line with the Talmud and against certain other poskim of his time, that conversion for the sake of marriage is prohibited li’chatchilah.
The part that we have excerpted below focuses on his analysis regarding whether such a conversion works post facto. The Talmud states that it does, but Rabbi Shmelkes questions whether this would apply even in cases where we know that the person is not sincerely accepting upon him- or herself the obligation to observe the mitzvot. This question – what level of commitment of observance is required, and whether we need to concern ourselves about the person’s intentions or not, especially if as far as we can tell the person is, or may be, sincere – is one that is highly relevant today.
We have chosen this teshuvah for Shavuot, because of its connection both to the book of Ruth and to receiving the Torah at Mt. Sinai. In the Talmud, Ruth is seen as a paradigm for the righteous convert, one who sincerely commits to all the mitzvot, and who is not doing it for any ulterior motive (although, interestingly, her conversion seems to be motivated more from a love of Naomi than from a connection to the faith itself). And the acceptance of the Torah and mitzvot at Mt. Sinai serves, in the Talmud, as a model for the various rituals of conversion (immersion, circumcision, and acceptance of mitzvot).
Rabbi Shmelkes draws on the Mt. Sinai example and the various midrashim that deal with the idea that the Israelites were coerced to accept the Torah, and raises questions as to whether we can derive from these midrashim that a verbal acceptance suffices even if a person’s commitment is not fully sincere. He goes back and forth on this question, and although he seems at times to conclude decisively that a verbal commitment is not sufficient if we know or suspect that the person is not sincere, in the end he is prepared to recognize the conversion under discussion, at least post facto. In the end, the question remains: Does it suffice to say, as our foremothers and forefathers did at Mt. Sinai, “We will do and we will hear,” even if their hearts were not fully in it, or must we all have the sincerity and depth of commitment as Ruth did when she said to Naomi, “You nation is my nation, and your God is my God”?
|בית יצחק, יו”ד ב’:ק’
על דבר השאלה באחד שהיה לו ילד משפחה ערלית ומתה אשתו ורוצה לישא הערלית הנ”ל אחר שתתגייר. ובאם לא יתירו לו ידור עמה באיסור או ישאנה בדרך צווילעהע. אם מתירין לו איסור זה שלא יבא לידי עבירות חמורות או שאין רשאי הב”ד להזדקק דבודאי גם אחר שתתגייר לא תשמור איסור נדה וגם בעיקר הגירות אי מגיירין אותה הואיל והיא לשום אישות ואי יש איסור לישא אותה משום הנטען על השפחה…
|Beit Yitzchak, Yoreh Deah 2:100
Regarding the question of a person who had a child from a non-Jewish female servant, and his wife has now died, and he wants to marry this Gentile woman after she converts. Now, if we don’t permit him to do so, he will live with her in violation, or he will marry her in a civil marriage. Do we permit this prohibition for him (to marry a woman with whom he had an affair) so that he should not violate weighty transgressions, or is the beit din not permitted to deal with this case, since it is certain that even after she converts she will not keep the laws of niddah? Moreover, regarding the conversion itself, are we allowed to convert her since it is for the sake of marriage, and is there a prohibition for him to marry her because of the rule of someone who has been suspected of having an affair with a maidservant (who is not allowed to marry her)?…
As to the conversion itself – we rule as a matter of halakha that if someone converts for the purpose of achieving some benefit, the person is nevertheless considered a legitimate convert. Ritvah writes in the name of Ramban that the reason that the conversion is valid is because we assume that once they have converted and accepted the mitzvot upon themselves, there is a presumption (hazakah) that because of the coercion to convert, they make up their mind to truly accept the mitzvot upon themselves. Now, I don’t understand this phrase “because of the coercion” – for who coerced them? Behold, they converted out of their own free will for the purpose of achieving some external benefit, so what type of coercion exists here? But it seems that their position is based on the principle in Ketubot 57, that if a woman sells her ketubah, she still retains certain rights because she has only sold it under the coercion of the need for funds. Logically, we should say the same is true here, that the benefit that the person was hoping to achieve through her conversion “coerced” her to convert, that the conversion is not valid, since it was it was not a freely-chosen acceptance of mitzvot. To respond to this, Ramban and Ritvah write that while there was an element of coercion, the pressure of this coercion did, in the end, lead the convert to fully accept the mitzvot upon herself. Now, if the conversion was truly coerced, there is no question that it would be invalid. Nevertheless, in this case, the convert chose herself to convert because of the benefit she would achieve, and in such a case, the conversion is valid. This seems to me to be the correct explanation of this matter, and this is similar to what is stated in Baba Batra 48, that when a person acts due to internal coercion, it is considered to be a free-will act, in contrast to when he acts due to external coercion.
On this point, see what the Rishonim have discussed regarding the accepting of the Torah and the standing at Mt. Sinai, where God held the mountain over them like a barrel, on which the Gemara states that “this is a great protest against the Torah” (that its acceptance was compelled). This acceptance was nevertheless binding, because this is like a case of someone who is coerced to sell an object, where the sale is binding (because the coercion leads him to commit to truly want to sell the item). Now it could be argued that the acceptance should not be binding and that this should be like a case where someone is coerced to buy something, where the purchase is invalid. Nevertheless, when Israel accepted the Torah they obligated themselves to God, and it was like agreeing to a marriage (huppa vi’kiddushin), and we rule that if a woman is coerced to be married, the marriage is binding…
What is evident is that it is required that a person accept the mitzvot with a full heart. It is not acceptable for a person to convert only outwardly, his heart not truly committing to keeping the mitzvot, and we know his intent, that afterwards he will not be keeping the laws of niddah with his wife, and he will violate Shabbat and eat non-kosher food. In such a case his conversion is fully invalid. One cannot claim that we should invoke the principle that “what a person is thinking in his heart is irrelevant,” and assert that it suffices that he says verbally that he is accepting the yoke of the mitzvot, and it is not our concern what he is thinking in his heart – as Pri Megadim wrote (OH 448, MA 8) regarding one who annuls his hametz, that although he does not really intend to disown his hametz, the annulment is still valid. This principle only applies in cases like that of hametz, which is an interpersonal matter, for when he says that he is disowning the hametz, his friend is entitled to take possession of it; and when it comes to interpersonal matters, we say that “what a person is thinking in his heart is irrelevant.” This would not be true in the case of a person who converts and accepts upon himself the yoke of mitzvot. For if in his heart he does not intend to keep them – this is a matter between him and God and behold, God wants what is in our hearts. In such a case, he does not become a convert… Thus, when it comes to convert in our time, who, in our great iniquity, convert in Ashkenazic lands and we know that even after the conversion they will not act in accordance with proper Jewish practices, but rather violate the laws of niddah, and eat non-kosher foods, as is the case in the matter before us – in such a case, based on what we have written, the person would not be a valid convert. Even if she were to say verbally – if people were to teach her to dissemble – that she accepts upon herself all the mitzvot, if in her heart she is intending to not keep the mitzvot, there is serious doubt whether such a case would be valid…
(12) Following the above, the words of the Midrash (Yalkut Tehilim) are quite astounding. The Midrash states: “We find that when Israel was standing at the foot of Mt. Sinai, they attempted to pull the wool over on God’s eyes, as it states, “Everything that God says, we will do and we will hear.”… And the verse states, “And they deceived Him with their mouths…” And nevertheless, He being merciful, forgives their iniquity.” From this it appears that they did not accept the holy commandments in their hearts, but rather just said outwardly “We will do and we will hear.” And this stands in opposition to what I wrote, that if someone converts and does not accept in his heart the observance of the mitzvot, it is not valid…
(13) Nevertheless, the matter is clear that at the Revelation at Mt. Sinai, Israel accepted upon themselves with a full heart to observe and fulfill that which is commanded upon us from God’s mouth, and a mere verbal acceptance would not have sufficed, as we have written. And based on what we wrote above, it is clear that one needs to accept with a full heart, and absent this he cannot enter into the status of being Jewish.
Now, behold, in Midrash Rabbah (Tisa, no. 42) this midrash (cited above, that they intended to deceive God) appears in the name of R. Meir, and there it is clear that their hearts were turned to idolatry when they said “We will do and we will hear,” and this certainly is very difficult and requires investigation. However, we can reconcile the words of the Midrash (with our halakhic position), and say that in fact at the time when Moshe brought Israel under the Divine wings with circumcision and immersion, as the Gemara states, they did sincerely accept upon themselves all the mitzvot and converted properly. However, when it came time later to actually accept the Torah at Mt. Sinai, their hearts were turned to idolatry. Alternatively, we can reconcile the words of the midrash and argue that there is a distinction between Israel, who were compelled to accept the Torah, as Maharal of Prague writes, since God held the mountain over them like a barrel, therefore a verbal acceptance, even without a sincere commitment, sufficed. This would not be true in the case of a Gentile who comes to convert…
In conclusion – behold, were your honor to permit this Gentile woman, who had intercourse with a Jew, to convert, and to allow this Jew to marry her, this is something that is not possible for two reasons. One, that as a matter of halakha, even were she have to already converted, it would be forbidden to marry her, as is stated in the Mishna and Tosefta. And two, if this Gentile wishes to convert for the sake of some benefit, i.e., for the sake of marriage, one should not agree to convert her li’chatchilah. However, were she to convert in the presence of three non-scholars who did not know that she was doing this for the sake of marriage, then post facto the conversion would be valid, and were he (her lover) to marry her, he would not be obligated to divorce her. Speaking more generally, when it comes to converts nowadays, one needs to see that they accept upon themselves, sincerely, to observe the foundations of faith and the rest of the mitzvot. And Shabbat is a major foundation, for one who violates Shabbat is like one who worships idols. And if a person converts himself and does not accept upon himself the observance of Shabbat and the mitzvot, he is not a convert.
I have written what appears to me in my humble opinion.
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