Converting a Woman Married to a Non-Jew

The following responsum is reprinted from Tomeikh KaHalakhah volume 3.  Tomeikh KaHalakhah is UTJ’s series of volumes of responsa (teshuvot) promulgated by the Union For Traditional Judaism’s Panel of Halakhic Inquiry.

No person may be converted to Judaism if he or she indicates that he or she will not accept any one of the Torah’s norms (whether scriptural, traditional, or rabbinic), even in its minor detail (T. Dem’ai 2:5; Behorot 30b). This of course does not mean that we can expect any convert (or any Jew, for that matter) to practice every mitzvah always (“There is no person on earth so righteous who does only good and does not sin”—Eccl. 7:20). In fact, one cannot even assume that a convert will know about most of the mitzvot, inasmuch as his or her preparation only requires information about a few (miktzat) of the mitzvot (Yevamot 47a). There is a difference between affirmation of the mitzvot, which is required of all Jews, and actual practice of them (see Nahmanides to Deut. 27:26). However, if a person’s very circumstances preclude his or her practicing a positive mitzvah or refraining from a negative mitzvah, then that would certainly constitute a rejection in principle of that mitzvah. Such would be the situation of a convert who remained in a marriage with a gentile partner.

The mitzvah this woman would be precluded from keeping is based on Deut. 7:3: “You shall not marry them,” which is interpreted by the rabbis to include all gentiles (Kiddushin 68b-69a; Avodah Zarah 36b). There is no question that a Jewish woman may not live together with a gentile man (Maimonides, Hilkhot Isurei Bi’ah 12:1). The only question is the exact legal category into which this prohibition falls (see Encyclopedia Talmudit, 5:295ff.). Here, however, this last question is irrelevant because the preclusion of keeping any commandment, regardless of its status, is enough to negate a valid conversion.

In is a lengthy responsum, Rabbi David Tzvi Hoffman (Responsa Melamed Le-Ho’il, 3, no. 5) reluctantly permitted a kohen to continue living with his gentile wife even after her conversion. In other words, he allowed her conversion even though both she and he would violate the prohibition of a kohen being married to a convert (M. Yevamot 6:5 re Lev. 21:7). Rabbi Hoffman permitted a lesser sin for the sake of saving the husband from the greater sin of living with a gentile woman whom the authorities would not convert (see Shabbat 4a and Tosafot, s.v. vekhi). However, this was done only to save a fellow Jew from a worse sin and to ensure that he not father gentile children with his wife. In the case at hand, conversely, we are not dealing with a Jew at all. Indeed, although conversion of gentiles to Judaism is facilitated (see Yevamot 46b re Num. 15:16 and Rashba thereon; Keritut 9a), it is not an imperative for which we must at times make halakhic adjustments (see, e.g., Yevamot 24b). We do not have the responsibility for prospective converts that we do for fellow Jews (see Shevuot 39a).

It seems that this woman can choose from three options: she can remain a righteous gentile and continue to keep mitzvot voluntarily (see Kiddushin 31a); she can leave her husband, thus removing the basic preclusion to her conversion; or her husband can convert to Judaism along with her.