Today is January 23, 2018 / /
The Lindenbaum Center for Halakhic Studies at Yeshivat Chovevei Torah
The question about whether a beit din of three men must be in the mikveh room when a prospective convert is immersing for the sake of conversion is a matter of halakhic debate. A number of responsa have been written on this recently, but this is not the first time this issue has arisen. The last hundred years have seen responsa on this topic by a number of poskim, some ruling leniently and others, such as Rav Ovadya Yosef, ruling strictly.
For those who are strict, the possibility exists to rule that such an immersion would be invalid even after the fact. However, many poskim concede that bi’di’eved—that is, post facto—the conversion would be valid, but rule that it would be strictly forbidden to do lichat’hila—that is, ab initio. This seems to be the position of Rav Ovadya Yosef. Once this point is granted, however, it opens the door to argue that sha’at ha’dehak ki’bi’dieved dami—exigent circumstances are treated as a post facto situation—and thus such an immersion should be allowed to be performed in a sha’at ha’dehak. In the contemporary context, many prospective converts have had deeply disturbing, if not at times traumatic, experiences when immersing before a court, and it is felt by many converts and non-converts alike that this requirement violates standards of modesty. This reality would seem to constitute a sha’at ha’dehak. Thus, any posek who concedes that such an immersion is valid, at least after the fact, could in principle be used to argue that such an immersion could be done li’chat’hila in today’s circumstances.
The crux of the issue is whether today’s circumstances, or ones like them, constitute a sha’at ha’dehak. In the responsum that we consider in this paper, Rav Ovadya Yosef rules categorically that they do not. He does not give any quantifiable or technical parameters for this determination. Rather, what he makes quite clear is that he does not find concerns of this type religiously valid. Similarly, he states that the possibility that potential converts will be discouraged from converting as a result is of no concern to him, because he generally is not in favor of conversion nowadays. The crucial question, then, of whether to consider this case a sha’at ha’dehak, is assessed by Rav Ovadya through the lens of the values and the worldview that he brings to this issue.
The role of worldview in the process of psak is something that might have come as a surprise in the case of Rav Ovadya Yosef. Rav Ovadya is known for being a posek who tabulates all the opinions on a matter and uses the weight of these previous rulings to arrive at his conclusions, and we thus tend to assume that his conclusions are simple a matter of “doing the arithmetic.” Nevertheless, it should not come as a surprise that his worldview would play a role in assessing what situations constitute a sha’at ha’dehak, which is ultimately a judgment call that is based on one’s values, priorities, and sense of what is best for public policy. Less expected, however, is how such a view may exert an influence even in how Rav Ovadya cites and presents his sources. Our analysis will show that there are times when a cited source, as he presents it, differs significantly from its meaning in its original context.
Citation of Sources
When reading a teshuva, it is assumed that the posek is citing his sources accurately and in context, and this is certainly our assumption in the case of Rav Ovadya Yosef. The teshuva that we are considering provides us an opportunity to test whether this assumption is correct. On inspection, a close reading of some of the responsa of other poskim quoted by Rav Ovadya Yosef shows how Rav Ovadya will sometimes read a source in a way that diverges from its original meaning. Furthermore, Rav Ovadya’s reading of a source often differs from the original meaning in a way that parallels the difference between his worldview and that of the author of the source.
Rav Uziel ruled leniently and allowed judges to stand outside the mikveh room during the immersion of a convert. Here is how he explains the circumstances that compelled him to be lenient:
|בהיותי משרת בקדש בעוב”י סאלוניקו יע”א נשאלתי אם אפשר להכשיר טבילת הגיורת שלא במעמד בית דין כי היות ומקוה טהרה נמצא במרחצאות של לא יהודים ובו מתרחצות תמיד גם נשים לא יהודיות וזילותא גדולה היא לבית דין להכנס במרחץ זה והוא דבר זר לעיני הרואים…|
(משפטי עוזיאל, יו”ד, ס’ י”ג)
|When I was serving as a rabbi in Salonika, I was asked if it is possible to permit the immersion of a female convert to take place not in the presence of the beit din, inasmuch as the mikveh is located in the bathhouse of non-Jews, and non-Jewish women regularly bathe there, and it is a matter of great embarrassment for the beit din to enter the bathhouse and it is a bizarre practice in the eyes of others…|
Rav Uziel mentions that given the circumstances of the mikveh’s location in a non-Jewish bathhouse, it would be an embarrassment for the beit din to enter in there. Presumably, the embarrassment is not for the beit din to enter a mikveh room, which itself would be acceptable, but for them to enter a bathhouse where partially and fully undressed women are present. However, the statement that it is a bizarre matter in the eyes of others points to a different issue. The point here seems to be that because there are non-Jews present, they will see that a beit din observes a woman when she is immersing, and this, in itself, from an outside perspective seems quite inappropriate.
Here is how Rav Ovadya quotes this passage:
|ותבט עיני בשו”ת משפטי עוזיאל ח”א (חיו”ד סי’ יג), שנשאל בהיותו הרב דסאלוניקי, במה שהמקוה נמצא בבית המרחץ של גוים, ונשי עכו”ם מתרחצות שם, וזילותא גדולה להב”ד להכנס בו, אם אפשר להקל ולהכשיר טבילת הגיורת שלא במעמד ב”ד|
(יביע אומר, יו”ד י”ט, אות ט”ז)
|I have seen in Mishpitei Uziel (YD 13), who was asked when he was the rabbi of Salonika, regarding a mikveh that was found in a bathhouse of non-Jews, and the non-Jewish women bathed there, and it was a great embarrassment for the beit din to enter there, if it is possible to be lenient to allow a convert to immerse not in the present of the beit din.|
Notice that Rav Ovadya dropped the second point (that the matter seems bizarre in the eyes of others). Given that Rav Ovadya rejects any concern for the morality or perceived morality of this practice, it would be difficult for him to cite this concern in the responsum he is quoting. He thus quotes only the concern of embarrassment, specifically connected to the mikveh’s location, and does not quote the concern that this entire practice is seen as bizarre.
We find a similar truncation in Rav Ovadya’s citation of a later passage. In a further description of the case, Rav Uziel writes:
|הואיל ובבית המרחץ שבו המקוה נמצאות תמיד נשים שמתרחצות בו ועמידת בית דין על ידי הטובלת גורמת לזות שפתים מצד הנשים המתרחצות ומצד הקהל והואיל ומצד הדין והמוסר לא הותר לכל אדם, ומכל שכן לרבני ישראל, להכנס לתוך מרחץ של נשים בשעה שהן מתרחצות… |
וכאשר נכנסים אל המרחץ שיש בו נשים אחרות שמתרחצות או אפילו מתלבשות לא ימלט דבר זה שלא במתכוין, וכיון שכן נעשתה טבילת גיורת במעמד בית דין לדבר שאי אפשר, ובמקום שאי אפשר כזה קרוב הדבר לומר שלכל הדעות מהניא טבילתה שלא בפני בית דין אפילו להשיאה לישראל.
|Since in the bathhouse where the mikveh is located, there are constantly women present who are bathing there, and having the beit din stand by the woman who is immersing causes perverse talk from the perspective of the women who bathe there and from the perspective of the community. And since from the perspective of law and ethics it is not permissible for any man (lit., person), and certainly not Jewish rabbis, to enter into the bathhouse of women when they are bathing… |
And when the judges enter into the bathhouse where there are other women who are bathing there, or even getting dressed there, it is not possible to avoid this thing (seeing women not fully clothed), even without intention to do so. Thus, the immersion of a convert in the presence of the beit din has become a matter that is impossible (“ee efshar”), and in situations such as this where it is impossible otherwise, it can be argued that all opinions would agree that to immerse not in the presence of beit din would be valid.
The first concern that Rav Uziel notes is the perverse talk that will arise from the beit din’s presence in the women’s bathhouse; people would gossip about the bizarre and inappropriate nature of this practice.. The phrase “from the perspective of the women… and from the perspective of the community” make it clear that this action will be seen as inappropriate based on communal standards. This is reinforced by his statement that for a man to enter into the bathhouse would go against both legal and ethical standards. In short, such behavior is inherently problematic. It is only after all of this that he states the halakhic concern of seeing women in a not-fully clothed state, and that thus the case should be considered one of ee efshar—that is, impossible from a halakhic perspective, to demand that a beit din be present.
Here is how Rav Ovadya quotes the passage:
|מפני שבבית המרחץ של גוים הנ”ל שבתוכו נמצאת המקוה, ישנן נשים ערומות, וא”א בשום אופן שאנשים ובפרט רבנים יכנסו לתוכו.||[Rav Uziel concludes to be lenient] since in the bathhouse of non-Jews, where the mikveh is located, there are naked women, and it is impossible under any circumstances from men, and in particular rabbis, to enter there.|
Notice again what Rav Ovadya quotes and what he does not quote. He cites the concern of the judges seeing naked women, but he does not cite the concern about violating community standards or improper activity from a moral perspective. Perhaps it is possible that Rav Uziel intended nothing more by these additional phrases than to underscore the problem of the judges seeing other women in various states of undress, but it is significant that Rav Ovadya in two places drops these suggestive phrases. In his quoting of Rav Uziel he presents only those factors that he himself believes would be relevant in assessing whether this case should warrant special consideration.
2. Shut Beit Avraham
Rav Ovadya’s selective citation of sources can be seen again in a teshuvah that he deals with at the end of this responsum. Rabbi Avraham Ever Hirshovitz (Melbourne, Australia, 1840-1924), in Shut Beit Avraham (p. 47), discusses a case where there were no other options (ee efshar) but to immerse without the beit din present. Here’s how Rabbi Hirshovitz describe the circumstances of his case:
|דבר זה קשה מאד פה במדינה באשר מקוה לבנות ישראל אין פה תחת יד ישראל… רק הצניעות ילכו לטבול בים אשר שם אוהל מוקף מחיצות אשר לא יבא שם איש ולא יראה לעין איש ואם יזיד ח”ו איש לשחד את השומרת לתתו לבא שמה בשעה שנשים רוחצות שם בנפשם היא כי ענוש יענשו קשה על פי חוקי המדינה||This matter (for a beit din to be present) is very difficult in this country, since there is no mikveh for Jewish women that is under Jewish auspices… However, the scrupulous (lit., modest) women will go to immerse in an ocean where there is a tent surrounded by curtains, and where no man is allowed to go there, and where they cannot be seen by any man. And if a man were to willfully, God forbid, bribe the woman who guards the place to allow him to enter at a time when the woman are bathing there, they [sic] are taking a serious risk upon themselves, because they will be heavily punished according to the laws of the country.|
As Rabbi Hirshovitz describes it, it is “very difficult” for the beit din to be present, but not literally impossible. The obstacle indicated so far is that this would risk serious punishment from the authorities. But then he goes on:
|ומה גם דייני ישראל יגרמו בזה ח״ה גדול ר״ל לחשוב את דייני ישראל למפירי חוק המוסרי הנקדש בעיני העמים פה, ילמדנו מו״ר איך להחנהג פה במדינה ששורר חופש האמונה, האם נאמר גם בזה כדאמרינן (נדה ס״ז) גבי חפיפה היכא דאפשר אפשר, והיכא דלא אפשר לא אפשר ונסמך על הרבה מהראשונים דס״ל דטבילה בדיעבד סגי בלא ב״ד…||The Jewish dayyanim [were they to witness the immersion] will cause a great desecration of the Divine Name, God forbid, for people will think that the Jewish dayyanim violate the ethical standards that have been sanctified by the non-Jews here. Let our master teach us how to act here in this country where freedom of belief prevails, can we say like we say elsewhere (b. Niddah 67), “Where it is possible, we do what is possible, and where it is not possible, it is not possible,” and rely on the many Rishonim who hold that bi’di’eved it suffices even without a beit din [for immersion]?|
The factor that makes this not only “very difficult” but actually “impossible,” ee efshar, is that to do so would create a hilul haShem. That is to say, that if not physically impossible, it is religiously impossible because of what this would communicate to people about the ethics of halakhah.
Without asserting that this act would be a genuine ethical problem, Rabbi Hirshovitz is sensitive to the perception that it is such, and that leads him to assess the situation as one of no alternative. It was exactly considerations such as these that Rav Ovadya dismissed as illegitimate, and it will be interesting to see how Rav Ovdaya willtreat the case. But let us first look at how other poskim did so.
Rabbi Hirshovitz turned to other rabbonim with this question. Rabbi Yaakov Reinowitz, the senior member of the Beit Din of London (1818-1893), responded that if there are truly no other options— במקום שאי אפשר בשום אופן—then the case would be considered a bi’di’eved, and the position that such an immersion is kosher can be relied upon (p. 48). It seems that Rabbi Reinowitz was not prepared to rule on whether the circumstances actually were ee efshar; he most likely believed that this could only be determined by the rabbi who was involved in the actual case.
Rabbi Smuel Salant, the then-Ashkenazi Chief Rabbi of Jerusalem, also responded to this question. He described the case as one where שאין רשות לאנשים להכנס בבית הרחצה, men do not have permission to enter into the immersion room (p. 49). He concludes that in such a case, the beit din can indeed be outside the space where the immersion is being done. The salient point for our discussion is that he completely brackets the concerns of hilul HaShem and the impression that this would create regarding the ethics of halakhah; presumably, it is not a material consideration for him. It is only the legal restrictions which make this case one of ee efshar.
Let us now look at Rav Ovadya’s citation of this responsum. He starts by paraphrasing and partially quoting Rabbi Hirshovitz’s description:
|שבעירו אין שום אפשרות לחברי בית הדין לגשת אל מקום הטבילה הנמצא ברשות העכו”ם, ואיש הבא שם בנפשו הוא, וענוש יענש ע”פ חקי המדינה, וכ”ש שאם ילכו שם דייני ישראל יגרמו חלול ה’ בזה||For in his city there was not the possibility for the members of the beit din to enter into the place of immersion which was under non-Jewish control, and any man who would go there would be taking a serious risk upon himself, because he will be heavily punished according to the laws of the country. And certainly [this is a problem], for if the Jewish dayanim go there, it will lead to a hilul HaShem in this matter.|
Rav Ovadya accurately references the hilul HaShem concern, but similar to what we have seen in the case of Rav Uziel, he does so only in a truncated form. He quotes the first part of the sentence, that to have the beit din witness the immersion would lead to a hilul Hashem, but he fails to quote the second part of the sentence, where Rav Hirshovitz explains that the hilul Hashem would result from the perception that this practice violates ethical standards. By not explicating what the hilul haShem would be, Rav Ovadya avoids having to give any legitimacy to the concern that this practice is or appears to be unethical. As we know, Rav Ovadya thinks that to raise ethical concerns is “an antithesis of our holy Torah” which “perverts the straight path.” One is left assuming that the hilul haShem emerges from the presence of other women, as in the case of Rav Uziel, and not from the perception that the practice is inherently problematic.
Beyond this, while Rav Hirshovitz considered the hilul haShem factor to be primary in defining the case as ee efshar, Rav Ovadya, like Rabbi Salant before him, brackets its halakhic relevance and focuses only on the legal and practical impossibility of the court to be present. However, here too we find a divergence from the original source. Rabbi Salant, remember, described the case only as one where the court was not allowed to enter the location of immersion. Neither he nor Rav Hirschovitz said it would be impossible to do so. This is inconvenient for Rav Ovadya, whose halakhic position is that an immersion not in the presence of a beit din can never be allowed if it is at all possible for the beit din to be present.
Rather than dismiss the ruling of Rabbi Salant, Rav Ovadya reframes it:
|ומ”מ פשוט שלא התיר הגאון ז”ל אלא בנידונו שיש סכנה לגשת שם, שהוא חשוב כדיעבד גמור, משא”כ כשישנה איזו אפשרות שהיא להכנס שם, אין להתיר כלל||Nevertheless, it is obvious that the gaon did not allow such a practice except in a case such as his, where there is a danger [for men] to go there. Such a case is to be considered a complete bi’di’eved. This, however, would not be the case when there exists a possibility to enter. In such a case, one cannot allow this practice at all.|
Rav Ovadya states that in this case it would have been a danger for the dayyanim to enter there. Here, he diverges from the original source. The original responsum had only said that the men would be subject to heavy punishment—most likely monetary—as the phrase ענוש יענשו appears in the biblical context in regards to monetary payment (Shemot 21:22). Even if such a man would have risked jail time, there is no basis for Rav Ovadya to assume that such a person would be under true danger. (The word sakanah without a modifier usually implies life-threatening danger.)
Consistent with the original teshuvah, Rav Salant, in his paraphrase of the case, described the situation only as one of אין רשות—that there was “no permission” for the judges to enter. In Rav Ovadya’s framing, this became a case of סכנה, danger. The reason to frame the circumstances as he did is obvious: it significantly narrows the application of Rav Salant’s ruling, a ruling that does not conform to Rav Ovadya’s stance on the matter.
What emerges from this analysis is that even for Rav Ovadya Yosef, whose responsa present a wealth of sources and emphasize a tabulation of the existing halakhic opinions on a matter, his values and worldview can play a role in his halakhic process. This is certainly true when it comes to assessing situations as sha’at hadehak and policy issue. More significant and unexpected is that his worldview can also be seen to exert influence in his citation of sources. In his choice of what to quote and what not to quote, and in his interpreting, framing and paraphrasing of a source, Rav Ovadya may at times present a source in a way that differs from its original meaning in its salient features. This can lead to putting a particular source on one side of an issue when it more properly belongs on the other side. It is clear that we cannot discount the role that values and interpretation play even in a halakhic process that emphasizes citation and tabulation.