Today is November 19, 2017 / /
The Lindenbaum Center for Halakhic Studies at Yeshivat Chovevei Torah
Erev Shabbat Kodesh Parashat Toledot, 28 Marcheshvan 5775, New York
Dear Rabbi Fox:
I applaud your essay, and while no further proof is necessary, I offer this concurring opinion.
It is clear to me that a woman who prefers to immerse in a mikveh for the purpose of conversion without the presence of a male in the immersion room itself, and who, in place of this, requests that a reliable woman be present inside the immersion room while members of the Beit Din (Rabbinic Court of Conversion) stand outside, in an adjacent room, has, in our days, a firm basis on which to rely.
The simple meaning of the sugya (Yevamot 45b) is that immersion for the purposes of conversion is reliable and acceptable without the presence of the Beit Din in the immersion room. Rav Asi was ready to permit the immersion of a non-believing woman preparing to wed a man of the Jewish faith to serve as both her immersion as a menstruant and for the purposes of conversion even though, as it is written in Tosafot, “it is not the way of women to bring a man with them at the time of immersion” (ibid., s.v. mi). Recognizing that this runs distinctly contrary to the law that “a convert requires three for the word mishpat (adjudication) is expressly written” (ibid., 46b, and in other places), and bearing in mind the context and meaning of the Gemara that three are required for the very act of immersion, “three place her in a seated position in the water” (ibid., 47b), the Gemara here speaks of an actual incident (ma’ase rav), and in general, an actual incident has legal precedence over a statute that is merely stated. Ostensibly, this would be the simple conclusion of the reader, to give preference to the story of Rav Asi over other scenarios or statements as it represents an actual incident.
All of this is understandably important from a theoretical perspective but markedly less so in practice. The commentators and the poskim (decisors) attempted to reconcile conflicting sections of the Gemara, presenting a compromise approach requiring three present at the immersion while permitting conversion without the presence of the Beit Din in the immersion room itself.
The endeavor to match and reconcile these two sugyot (sections of Talmudic text) can be divided into two fundamental approaches in the writings of the Rishonim (primary commentators):
1. The view of the Scholars of Ashkenaz (Tosafot, Rosh, etc.) and those who follow their approach is that the actual incident of Rav Asi (Yevamot 45b) is indeed the halakha, that immersion for the purpose of conversion does not require a Beit Din. And those gemarot which posit that immersion does require a Beit Din were either only said “at the outset (l’khathilah), it is more preferred” (Tosafot, ibid., s.v. mi), or they indicate that the requirement for the presence of the Beit Din is merely an ideal (“le’mitzvah,” Tosafot, Kiddushin 62b, s.v. ger), “to fulfill the mitzvah in a par excellence fashion” (Rashba, ibid.). From a close reading of their language it appears clear that the law necessitating a Beit Din for immersion is not a fundamental element of the law, it is simply a matter of “preference” or “mitzvah par excellence.”
This also appears to be the view of Rashi in Sotah (12b, s.v. lirhotz). He understands the immersion of the daughter of Pharaoh as being for the purposes of conversion even though it did not take place in the presence of a Rabbinic Court. No clear proof can be found here, for her immersion occurred before the giving of the Torah; the context is agaddic and not halakhic. Nonetheless, Rashi’s explanation of the “washing of one’s idols” as a category of conversion suggests that his fundamental opinion is that an immersion performed without the Beit Din is valid since this is even the case with one performed alone.
2. The second opinion is the position of the Rif and his associate(s). According to them, not satisfying the requirement to have the Beit Din present for the immersion hinders the conversion even in a case of “after the fact,” and immersion without three (judges) is valid only in a situation where the female convert is already married.
These are the two fundamental opinions in the Rishonim. In point of law, however, there is a divergence of opinions among the poskim and the Acharonim (later commentators):
The simple understanding of the Shulchan Arukh is that the position of the Mechaber (Rav Yosef Karo) is like that of the Scholars of Ashkenaz: the three are only required before the act of immersion (268:3). And even though the Mechaber later cites the position of the Rif, all of the guides for reading the Shulchan Aruch indicate that in situations where an anonymous position is cited followed by a disagreement, the view of the Mechaber is in consonance with the first and anonymous opinion. In addition, the responsa of Sha’arei Tsedek (Orah Chayyim, 80) and Levushei Mordekhai (Yoreh De’ah, 162) both explicitly state that on this question the Mechaber agrees with the anonymous position: the three are only needed before the act of immersion.
According to this approach, the law that immersion fundamentally requires three is an additional stringency, a “mitzvah par excellence” requirement, which could be regarded as a type of embellishment of the mitzvah. Regardless of the fact that the Mechaber sides with the anonymous position that three are required before the act of immersion, his position is based on the Tosafot and the other Scholars of Ashkenaz, and they wrote explicitly that the presence of the three at the outset of immersion is simply preferred. Therefore, we must conclude that when the Mechaber mandates the three at the outset, his intention is likewise to require the presence of a Beit Din consisting of males as a matter of “preference” and “mitzvah par excellence.”
Therefore, it is clear that, according to the position of the Mechaber, as derived from the position of the Tosafot, there is room for leniency in allowing a woman to immerse for the purposes of conversion without the presence of men in the immersion room, certainly in times of pressure or in a place of necessity. But perhaps the Rif ’s position allows for leniency in the mandate that the Beit Din be present in the immersion room without this involved discussion.
In explaining the unique position of the Rif, the Ramban writes, “Perhaps we require acceptance [of the yoke of mitzvot] literally at the time of immersion and everything is in the presence of three” (Yevamot 45b, s.v. mi lo). If one examines the words of the Ramban closely, it appears clear that, according his explanation of the Rif, the law requiring the presence of the three at the time of immersion does not pertain to the immersion itself, i.e., the actual immersion would not be invalidated by the absence of three judges. Rather, the presence of the three is required at the time of immersion because of the idea — presented here for the first time — that the female convert must accept the mitzvot twice, one of those times being during the act of immersion.
There is no doubt that, in accordance with the Ramban’s understanding of the Rif, the presence of the three is not required in the mikveh room. As long as the members of the Rabbinic Court teach the convert the leniencies and stringencies in an adjacent room immediately before she enters the mikveh to immerse, the rabbis fulfill the mitzvah of immersion before the act. This holds true even according to the opinions of the Rif and his associate(s), as in their position, the requirement of the three is not to assure that the immersion occurred as prescribed but to review with the convert again the process of accepting the mitzvot, an act which can be done outside the immersion chamber.
And even though the Mechaber wrote, “and she is reminded of some of the lenient laws and some of the stringent laws, as she sits covered in the water [emphasis added], and afterwards she immerses in their presence and they turn their heads away and exit” (268:2), it is clear beyond any doubt that this description is procedural and not a halakhic dictate, and that according to the purpose of the law, based on how the Ramban understands the position of the Scholars of Spain, there is no need for the second acceptance of mitzvot to occur while she is in the water, in the middle of the act immersion.
To summarize thus far, we have the position of the Rif as understood by the Ramban, that the three are not required at all in the immersion room, and we have the view of the Tosafot and those who follow their opinion that, while the presence of the three is required during the course of the immersion, it is only required before the act and in order to fulfill the mitzvah in a “par excellence” fashion.
In my humble opinion, these words of the Ramban were either concealed or unknown to Maran, Rav Ovadiah Yosef z”l (Yabi’a Omer 1, chapter 19). It is not my intention to expound on this at length here, but it is clear to me that if Maran had seen these words of the Ramban, he would not be puzzled by the words of the Mechaber and why he sided with the position of the Tosafot against the positions of the Rif and the Rambam (at least as it pertains to the role of the Beit Din in the immersion).
All the above would be the rule if we were to simply follow the Rishonim and the Shulchan Arukh. In reality, however, there is disagreement among the Acharonim about this issue.
Maran haRav Ovadiah (ibid.), Rav Moshe Feinstein (Igrot Moshe, Yoreh De’ah, part 2, no. 127), and the Minhat Yitzchak (part 4, no. 34) are stringent in their opinions: the judges must be physically present in the immersion room. While it is difficult to ignore the discomfort of the poskim in their decisions, particularly that of Rav Moshe z”l, who repeatedly states at the outset of his teshuvah that this behavior comes close to transgressing the boundaries of modesty and borders on an actual violation, this is their ruling. On the other hand, there are poskim who posit that, in a case of necessity, one can permit immersion without the presence of three men. This is explicitly written in the responsum of the Beit Avraham (49) in the name of the Jerusalem scholar, R’ Shmuel Salant. The Rishon LeZion, Rav Ben Zion Hai Uziel (Mishpetai Uziel, Yoreh De’ah, part 1, no. 13) also decides this as law.
It is important to note that, even though his decision falls on the stringent side in the teshuvah discussed above, Rav Moshe makes it is clear — particularly in his conclusion — that his principle objection to relying on a woman as the validating presence in the immersion chamber is based on the specific question posed to him: in this question, the bath attendant was not Jewish. From this, it is fair to assume that he might have been more lenient had the bath attendant been considered reliable to render testimony in a Jewish court. Indeed, this is the case in his second teshuvah on the same topic (Igrot Moshe, part 3, no. 112). In spite of the fact that one of the judges was present during the immersion in the specific situation about which he was asked, it is clear from Rav Moshe’s decision that there is room to permit immersion without the presence of a Beit Din, as the crux of his argument is that one can rely on the knowledge of the Rabbinic Court that the convert immersed even though they did not witness it with their own eyes. This is essentially the second opinion of Tosafot: “since it is known to all that she immersed, it is as if they are standing there” (Yevamot 45b, s.v. mi).
It is important to note that just as this deliberation was born of an actual incident (as shown in the Gemara of Yevamot 45b), so too the Mishpetai Uziel builds his argument to decide an actual case. As part of his rabbinic argument, the Rishon LeTzion justifies an existing custom. According to his responsum, the convention in Salonika gave preference to an immersion by a female convert in which the Beit Din was not present in the immersion room itself. The fact that this was the custom can serve precedent, indicating that perhaps the presence of males in the immersion room is not necessary.
The Bach, who says explicitly in his first opinion (Yoreh De’ah, chapter 268) that the witness of a woman is sufficient to validate immersion for the purposes of conversion, should also be included among those poskim who validate immersion without the direct presence of the Beit Din.
In summary: According to the Rif, the Ramban, and their associate(s), there is no need for the presence of the Beit Din inside the immersion room as long as they inform the convert of the leniencies and stringencies at the time of the immersion. According to Tosafot and the rest of the Scholars of Ashkenaz, the Beit Din must be present in the immersion room, but this is merely a matter of preference, a type of embellishment of the mitzvah, before the act of immersion. The Mechaber decides the law according to Tosafot. In terms of law in actual practice today, there is a division between those who are stringent and mandate the presence of men through the entire course of immersion and even after (which I have emphasized as an appalling breach of the boundaries of modesty), but there are also those poskim who are lenient, offering the opinion that immersion without the presence of men in the immersion chamber while the woman is disrobed is totally and unequivocally valid.
Thus, it is clear to me that, after the recent charges, it is certainly possible to classify each and every case of the immersion of a female convert as ex post facto. Lest the salacious rumors brought about by recent events cause those who want to become a vital part of the inheritance of God to talk with their feet and run, they should be permitted to immerse without the presence of three men in the immersion chamber, when they are standing naked due to the lack of modesty inherent in the conversion process. Note well that the Rishon LeTzion haRav Uziel validated immersion without the presence of a Beit Din because of “perverse talk.” If one can be lenient when there is mere suspicion of “perverse talk,” how much more leniency may one have today — when the suspicions and rumors have substance — in accommodating those women who are fastidious. It is, therefore, my humble opinion that today we find ourselves in an ex post facto situation, and if a female convert does not wish to immerse in the presence of men, she should be permitted to immerse without them as long as a trustworthy woman is in the room and the three judges stand outside, adjacent to the immersion room.
For myself, I would go one step further. Since, as I have explained, there is room to be lenient ex post facto and out of necessity one can even convert without the presence of a rabbi in the immersion room, I would argue that it is the responsibility of every rabbi who oversees conversions to inform the potential convert of this option.
I, of course, write this purely as halakhah. It is of the greatest importance that other rabbis and scholars agree with me if that which we are accustomed to, the presence of men in the room at the very moment a female convert immerses, is to change. If my suggestions are accepted and they become the common practice, we will have achieved something significant. Otherwise, instead of assisting them, any leniency could potentially hurt female converts as the official powers will find in this an unjustified pretext to make matters even more (incredibly) difficult, perhaps even causing the invalidation of the conversions of those who immersed outside the immediate presence of the Beit Din.
May it be the will of God to cause His Shekhinah to descend upon our actions, which, as is known, is contingent on the purity of the camp, as it is written: “For the Lord your God walks in the midst of your camp….and may your camp be holy” (Devarim, 23:15). The inspiration of the Shekhinah will come when the bar for holiness of the camp is elevated and set very high.
(Rabbi) Ysoscher Katz
Director, Lindenbaum Center for Halakhic Studies at Yeshivat Chovevei Torah Rabbinical School
P.S., At the moment I do not have time to delve into this in much detail, but it appears to me that there is room to be lenient and validate a conversion without the presence of the judges in the room from a conceptual perspective. Rav Moshe already remarked that the members of the Beit Din are there to ascertain that the immersion indeed took place and not to actuate the immersion itself. It also appears from the Acharonim (the Ketsot, the Netivot on the subject of laws pertaining to judges, Hidushei Rav David in Yevamot, and others) that the role of the Beit Din in conversions is categorically different from its role in other matters. Generally speaking, the Beit Din does its work as representatives of God Almighty (“Judges stand in the Company of God,” Tehillim, 82:1) and they, as His emissaries, try to represent Him in mediations between litigants, serving in God’s stead. This is not their role in conversion. When the Rabbinic Court converts someone, they are doing so in their role as messengers of the community. They, as representatives of all of Klal Yisrael, escort those who are converting into the Covenant of the Community Israel, turning them into citizens of the Israelite Nation. If these Acharonim are correct, the distinction here is clear since the entire process of conversion consists of a) representing the community and b) clarification that everything was done according to the law. In other words, the members of the Beit Din clarify and implement the law. Consequently, the process does not mandate that a Beit Din be physically present at the actual immersion, and in any case in which it is clear beyond any doubt that everything required was done, the conversion is valid. Reference can also be made to issues pertaining to the validity of “knowing without seeing” in conversion with which the Acharonim have dealt. These matters need further clarification, and with the will of God, I shall tackle them as I have time.