A Kohen Marrying a Zonah

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.

 

The Torah says, “They [kohanim] shall not take (yikahu) a woman who is a zonah [see below for definition] or has been desecrated, and they shall not take (yikahu) a woman who has been divorced by her husband; for each one [kohen] is holy to his God” (Lev. 21:7). The term “take” (kihah) signifies “marriage” (see Kiddushin 2a; Tosafot thereon s.v. u’ketiv; J.T. Kiddushin 1:1; see also Sefer Ha-hinukh, mitzvah 266 and 267 for the reasons behind this prohibition). Maimonides writes (Hilkhot Isurei Bi’ah 17:2), “Any kohen who marries one of these three women…and has relations, he receives lashes. But if he has relations by way of harlotry, he does not receive lashes on account of [cohabiting with] a zonah, divorcee or one who is desecrated since [the verse] says, ‘shall not take.’ [One is not in violation] until he takes [in marriage] and has relations.”

Our question revolves around the exact definition of the term “zonah.” This issue is a Tannaitic dispute in the Gemara (Yevamot 61b): “…it was taught, ‘zonah’ implies, as her name [indicates, an unfaithful wife], these are the words of Rabbi Eliezer. Rabbi Akiva said, ‘zonah’ implies one who is a prostitute…and the Sages said, ‘zonah’ is none other than a prostitute, freed bondwoman or one who has been subjected to any meretricious relations. Rabbi Elazar said, an unmarried man who had relations with an unmarried woman, with no matrimonial intent, thereby renders her a zonah.” The law follows the opinion of the Sages and thus, Maimonides writes in his commentary on the Mishnah (Yevamot 6:5), “One who has relations which [accompanies with it the punishment] of karet (divine excision) or lashes on the biblical level or [violates] a positive biblical commandment, whether through compulsion or willingly, as explained in this chapter, she becomes a zonah.” In the Mishneh Torah (Hilkhot Isurei Bi’ah 18:2), he writes, “or [if she has relations] with a non-Jew or a slave, since she is forbidden for him to marry, she is thus a zonah.” Rabbi Ya’akov ben Asher in Arba’ah Turim and Rabbi Yosef Karo in Shulhan Arukh quote this ruling in Even Ha-Ezer 6:16 (see Bet Yosef for additional talmudic sources for this ruling). Regarding verbal admission of the transgression of this prohibition, Maimonides writes (ibid. 17:21) “[If] she is referred to throughout the city as one who acted like a zonah, we do not pay attention (see Gittin 89a and Tosafot thereon s.v. akhlah)….Because we do not prohibit a woman from these [i.e., marrying a kohen or kohen gadol (high priest)] except by clear testimony or her verbal admission (be-hoda’at piha).” Therefore, on the one hand, “the mouth that prohibits is the mouth that permits” (Mishnah Ketubot 2:5), and on the other hand, “the mouth that permits is the mouth that prohibits.” That is to say, since knowledge of the woman’s status is based on her own statement, and she had the option of either remaining silent or claiming to be without blemish, her statement is to be believed whether it renders her permissible or forbidden. However, her statement must be made in her innocence (mesi’ah le-fi tumah), i.e., in ignorance of the legal ramifications, in order for her to be defined as a zonah according to the rulings found in the Mishneh Torah, Arba’ah Turim, and Shulhan Arukh (see Ketubot 23a). Even though the term “her verbal admission” does not appear in the Arba’ah Turim or Shulhan Arukh (it is, however, in the Arukh Ha-Shulhan, Even Ha-Ezer 6:17), none of the commentaries on these works indicates that there is a difference of opinion in this matter between Maimonides and Rabbi Ya’akov ben Asher and Rabbi Yosef Karo. And thus, Rabbi Vidal Yom Tov writes in Maggid Mishnah (to Mishneh Torah, Hilhkot Isurei Bi’ah 7:21), “And what our teacher [Maimonides] wrote, ‘or her verbal admission’ means that her verbal admission prohibits her from marrying a kohen as explained in chapter 18.”

Despite these rulings, the Tosafot quote an important opinion of Rabbenu Tam (Ketubot 3b s.v. velidrosh lehu deones sharei). They write, “Rabbenu Tam resolves that one is not liable to the death penalty for relations with an Egyptian since the Torah declared the seed of an Egyptian to be ‘ownerless’ as it says (Ezekiel 23:20), ‘and whose issue is like the issue of horses’ (see Yevamot 98a and parallels; Rashi to Sotah 26b s.v. u-bat kohen)…and based on this Rabbenu Tam permitted a Jewish woman who had become an apostate and had relations with a gentile to marry this gentile when he converted to Judaism since there is no connection to the ruling of [if a woman commits adultery, she is forbidden to] her husband and her adulterer (i.e., she must be divorced by her husband and is not allowed to marry her adulterer. Sotah 26b) because having relations with an Egyptian is like having relations with an animal.” (This ruling is limited to the technical discussion of a non-Jew’s seed; Rabbenu Tam is clearly of the opinion that, within the context of humanity, non-Jews are considered “man” [ha-adam]; see Yevamot 61a, Tosafot s.v. ve-ein and Baba Batra 58a, Tosafot s.v. metzayein. See also the discussion of Rabbi Yisrael Lipschutz, Tiferet Yisrael, Avot, ch. 3, Boaz n. 1, regarding this idea). The ruling of Rabbenu Tam flows from his interpretation of the following Gemara (Ketubot 3b), “What [was the] danger?…Rabbah said, [That] they [the Roman authorities] said, ‘a maiden that gets married on the fourth day [of the week] shall have the first intercourse with the prefect.’ [You call] this danger? [Surely] this [is a case of] compulsion. Because there are chaste women who would rather surrender themselves to death and [thus] come to danger. But let one expound to them that [in a case of] compulsion [it] is allowed?” According to Rabbenu Tam, any relations with a non-Jew automatically falls within the category of “compulsion” (ones), and the Torah exempts in a case of compulsion (see Baba Kamma 28b). And thus writes Rabbi Shmuel Eidels (Maharsha to Ketubot 3b), “According to the interpretation of Rabbenu Tam, there is no difference between compulsion and willingness.” While Rabbenu Tam does not distinguish between cases of compulsion and willingness, he rules that all cases are considered “compulsion” (ones) to permit a marriage to a kohen. Maimonides, Rabbi Ya’akov ben Asher, and Rabbi Yosef Karo do not distinguish between these cases, but rule that all cases are considered “willingness” (ratzon) to forbid a marriage to a kohen (see Arba’ah Turim, Even Ha-Ezer, ch. 6 and Bet Yosef thereon; see also Mishnah Yevamot 53b).

Rivam, however, disagrees with Rabbenu Tam and brings various talmudic proofs. In Tosafot to Sanhedrin 74b (s.v. veha) it is written, “From this Rabbenu Tam wanted to permit a Jewish woman who became an apostate.” It is possible that based on the Tosafot’s use of the term “wanted,” Rabbenu Tam’s opinion was theoretical and, due to the objection of his colleagues, was not to be used in actual practice. Similarly, Rabbi Menahem Meiri (Bet Ha-Behirah, Ketubot 3b, Sofer edition, p. 18) writes, “And it is shocking that some of the Rabbis of France wrote that relations with a non-Jew do not forbid her…and even their colleagues amongst them disagreed.” Nevertheless, Rabbenu Asher (Ketubot 1:4) comes to the aid of Rabbenu Tam and says, “And it appears to me to uphold the ruling of Rabbenu Tam and not because of his reason but because we say (Sotah 26b), ‘The phrase “and she be defiled” (ve-nitma’ah) occurs twice’ (Numbers 5:13, 14)—once with respect to the husband and the other with respect to the adulterer [that she is forbidden to both of them]—but it applies only when she becomes prohibited to the adulterer by this act of adultery’ but in the case of relations with a non-Jew since, in any event, she was forbidden to him, we do not apply to her [the verse], ‘and she be defiled’ [and therefore she is not forbidden to him].” Similarly, Rabbi Yom Tov ben Avraham writes (Ritba to Ketubot 3b), “From this reason, Rabbenu Tam ruled regarding a non-Jew who had relations with a married Jewish woman and she became a gentile [i.e., an apostate] and gave her husband a divorce, and afterward she converts [meaning, she repented and returned to practicing Judaism; see Responsa Ha-Rashba vol. 5, #66; vol. 7, #411] and Rabbenu Tam permitted her to him [her original husband] because regarding a non-Jew we do not say that just as she is forbidden to her husband, so too is she forbidden to her adulterer…and with all this Rabbi Yehi’el said here that the ruling of Rabbenu Tam in practice is true law (din emet)…and similarly said Rabbi Yitzhak.” (It is unclear whether Ritba follows Rabbenu Tam’s reasoning or that of Rabbenu Asher. See Responsa Terumat HaDeshen #219).

What is the basis for the ruling of Rabbenu Tam? It seems that Rabbenu Tam had two reasons for making his decision. First, he based the details of his ruling on the understanding of the verse in Ezekiel 23:20 (and by doing so, he does not transgress the concept of “Torah teachings cannot be deduced from words of tradition [i.e., the teachings received on tradition from the prophets, a designation for non-Torah, primarily Prophetic, scripture]”—see Baba Kamma 2b and parallels—since from the verse in Ezekiel comes the definition of the term “man,” which teaches that only relations with a Jew prohibit a Jewish woman from marrying a kohen; Rabbenu Tam is thus only revealing a basic fact). The second reason for his ruling is the general benefit, which will, in effect, save a Jewish life. This idea comes to light in the commentary of the Hagahot Maimoniyot (on Mishneh Torah, Hilkhot Isurei Bi’ah ch. 18, ot #1). He writes, “I am amazed with a responsa of the Rashba [we have been unable to locate it in the printed Responsa Ha-Rashba] that deals with the case of a Jew and his wife who became apostates and then repented. How is it permissible for him [to remain] with her since she is undoubtedly a zonah because she wished to act like a zonah and therefore made herself ownerless by transgressing all of the commandments that are in the Torah?…And so, for those who are repenting it is not proper to forbid.” From here we learn that one should not lock the door before a penitent, a concept that our Sages refer to as “takanat ha-shavim” [an enactment for the purpose of making matters easier for the penitent] (see Baba Kamma 94b). It is our obligation to remove from before the penitent any obstacle which impedes his or her difficult path. Rashba, in his great wisdom, understood that if we prohibited this man to remain with his wife, neither one would repent and it would have been a strict ruling that caused a lenient outcome (humra deatei ledei kula) (see Yevamot 30b) and the loss of their souls from the Jewish people, God forbid. Just as Rabbenu Tam was able to locate within the sources a way to permit a Jewish woman who was repenting to remain with a non-Jew who converted, so too did Rashba find a way (see Hagahot Maimoniyot ibid.) to permit a repentant couple to remain together. This benefit which we implicitly learn from the ruling of Rabbenu Tam, is explicitly learned from the ruling of Rashba. Therefore, it seems that it is worthwhile to rely on Rabbenu Tam and Rashba (and Rabbi Yehi’el, Rabbi Yitzhak, Rabbenu Asher, and Rabbi Yom Tov ben Avraham, who uphold Rabbenu Tam’s ruling) in a case of pressing need (sha’at ha-dahak) (see Berakhot 9a and parallels).

Whereas we advocate the application of Rabbenu Tam’s ruling, one may not want to rely on it for various reasons. Firstly, his opinion is not brought in the halakhic codes, in particular the three pillars of the world: Mishneh Torah, Arba’ah Turim, and Shulhan Arukh. Secondly, although Rabbenu Tam’s minority opinion has been relied on in cases of allowing two Jews who are already married to remain married and to avoid the prohibition of allowing an adulterous spouse to return to her husband (see, for example, Rabbi Yehi’el Ya’akov Weinberg ruling in Rabbi Yehudah Unterman’s Responsa Shevet Mi-Yehudah, vol. 2, pp. 264-65), it has not been used in the case of a kohen to allow a couple to become married nor to allow a non-Jewish wife to convert and become married halakhically. Thus, Rabbi Moshe Feinstein (Responsa Iggerot Moshe Even Ha-Ezer vol. 2, #4) deals with a case of a kohen married to a non-Jewish woman in the secular courts. The couple had children, and the woman wished to convert along with them. The man threatened to become an apostate if she was not converted. Rabbi Feinstein was unable to find a leniency to allow this kohen to marry a convert (see also Responsa Heikhal Yitzhak Even Ha-Ezer vol. 1, #16-19, where Rabbi Yitzhak Herzog discusses similar cases and also finds no room for leniency). In my humble opinion, though, the ruling of Rabbenu Tam and Rashba in general flows from the concept of “the power of repentance” (see, for example, Shemot Rabbah 31:1, “[I]f a person returns and repents even if he has in his hand many transgressions, he transforms them into merits, etc….and we can learn from aggadah as a support for Halakhah [see J.T. Pe’ah 2:4] and to rely on them “so that a rabbinical enactment shall not assume the character of a mockery and jest” [Eruvin 68b; see Baba Batra 31b and Rashbam thereon s.v. leziluta debei dina]). If the door was not locked to the penitent in the generations of Rabbenu Tam and Rashba, how much more so in our impoverished generation when so many Jews are lost on account of assimilation and apostasy. Perhaps then we should rely on Rabbenu Tam and Rashba based on what our teachers, Tosafot, called cases of “clear and reasoned [need]” (panim ve-ta’am) (Nazir 43b s.v. vehai), and even “some reason” (ketzat ta’am) (Yevamot 88a s.v. mi-tokh) or “for a need” (le-tzorekh) (Ketubot 29a s.v. elu).

There is an another avenue to permit if one does not want to rely on Rabbenu Tam. In his responsa, Rabbi David Tzvi Hoffman (Responsa Melamed Le-ho’il vol. 3 #8) discusses the case of a kohen who married a non-Jew in the secular courts and afterward the non-Jewish woman wished to convert. How was it possible for this kohen to marry a convert and transgress a Torah prohibition as explained by our Sages (Mishnah Yevamot 6:5, 61a)? Rabbi Hoffman answered, “Nevertheless, even though we receive her as a convert, we do not arrange a marriage (kiddushin) with the kohen because there is a greater transgression if he marries a convert who is [defined] as a zonah through kiddushin than not through kiddushin…and if [you think] that she is forbidden because of [the prohibition of] kedeishah (a woman who has relations with a man with whom she cannot establish a legal marriage bond), see Responsa She’elat Yavetz vol. 2, # 15…”

The responsum of Rabbi Ya’akov Emden includes his singular opinion permitting a concubine (pilegesh) in this day and age. He thus writes, “We learn in the chapter ‘the high priest judges’ (chapter 2 of Sanhedrin—21a), ‘What are wives and what are concubines? Rav Yehudah said in Rav’s name, wives have a marriage contract (ketubah) and marriage (kiddushin); concubines have neither.’ [See Mishneh Torah, Laws of Marriage 1:4 and Laws of Kings 4:4; Rashi and Nahmanides on the Torah, Gen. 25:6; compare J.T. Ketubot 5:2]…(since she is only part wife as the notarikon—abbreviation—indicates; ‘pileg’ meaning ‘part’ and ‘shim’ an abbreviated form of ‘nashim’ meaning ‘wives’]). They [the rabbis] do not make these decrees concerning her since she is not [bound] to him with a marriage contract and through proper marriage; she is only designated to him for a set amount of time and a fixed payment that was arranged between them, so it seems to me…it is proper to permit him [the kohen] now since [there is] a worse stumbling block than denying him the concubine (i.e., he will marry her through kiddushin). If so, the situation is opposite of the strict ruling and the permission represents a fence around the Torah, as we learn that the Torah itself makes a fence in permitting the beautiful captive woman (see Deut. 21:10-14) since ‘[the Torah only provided for human passions] it is better for Israel to eat flesh of [animals] about to die, yet [ritually] slaughtered, than flesh of dying animals which have perished’ (without ritual slaughter. The first too is repulsive, but sanctioned. Kiddushin 21b-22a; Semakhot, ch. 7)…and this is certain, also in our time and in all places…and I have already elongated [this discussion] too much in order to elucidate and to educate on a matter that is ‘a time to act’ (eit la’asot; based on the verse [Psalms 119:126], ‘It is time to work for God; they have abandoned Your law,’ the rabbis explained that in a time of great emergency, i.e., when the Torah itself is being abandoned, the law of God may be set aside in order to strengthen Torah observance. See Berakhot 54a, 63a).” From here, we learn that it is permissible to advise this couple to live in a relationship of a concubine and to establish this bond in the secular courts in a civil marriage (See Responsa Melamed Le-ho’il ibid., #9; also Rabbi Ya’akov Toledano, Otzer Hayyim 5690 [1930], vol. 6, p. 209). Nevertheless, employing this permission will definitely render their children as halalim (persons unfit for priesthood, i.e., a son born to a kohen and a woman whom the kohen is forbidden to marry), which is a serious repercussion of this ruling (which would not be the case if one relies on the rulings of Rabbenu Tam and Rashba). Furthermore, Rabbi Moshe Feinstein (Responsa Iggerot Moshe Even Ha-Ezer vol. 2, #4) disputes Rabbi Hoffman’s assertion that by permitting a non-Jewish woman convert to stay married (civilly) to a kohen would allow for less transgression of the law. Rabbi Feinstein states that if the woman is converted and the couple does not follow the laws of family purity, the punishment is karet (divine excision) and the kohen violates the negative commandment (lav) of living with a zonah. However, leaving the woman unconverted involves only two negative commandments: not marrying a non-Jew and a kohen living with a zonah. Thus, Rabbi Feinstein rules that converting her makes the situation worse and he would advise doing nothing.

A third option turns this entire question around and, instead of concentrating on the status of the woman, focuses on the status of the man to determine whether he is in fact truly a kohen. This option is quite important, since it has been used in actual practice (Halakhah le-ma’aseh) by Rabbi Feinstein (ibid. Even Ha-Ezer vol. 4, #39; see also ibid. #11, where he rules similarly). While the answer is included in Rabbi Feinstein’s responsa, the original question asked by Rabbi Barukh Leizerovski is not found there. However, this reponsum is also included in Rabbi Leizerovski’s work (Responsa Ta’am Barukh vol. 1, Even Ha-Ezer #70) with the question that contains an articulate outlook of how a halakhic authority must view his role, especially in this matter. The case involves a kohen who became observant (ba’al teshuvah) under the influence of Habad. However, the man was married to a woman who was converted by a bet din of Conservative rabbis and they had a daughter. The kohen appeared before Rabbi Leizerovski and sought a way to remain married to his wife. The rabbi turned to Rabbi Feinstein after an arduous and unsuccessful search to find a leniency. Rabbi Leizerovski concluded his question by writing, “but we also need to be cognizant of [what] people [will think] in order that they do not say that rabbis are not merciful and do not feel the pain of Israel.” Therefore, he was turning to Rabbi Feinstein to find a solution. Rabbi Feinstein details the fact of the case: the kohen’s father emigrated from the Ukraine in 1923 with no knowledge of Torah or Judaism and did not give his son any Jewish education. There was a good chance, Rabbi Feinstein suggested, that his grandfather also did not practice Judaism, since the Communist Revolution took place in 1917 and the kohen’s father was clearly unobservant before that time. As such, his father was not a reliable source to inform him whether he was a kohen and furthermore, he never heard from his grandfather that he was one. Rabbi Feinstein, therefore, ruled that since they had a daughter, and there was a real fear that he could return to his unobservant ways if pushed away, the fact that there is good reason to doubt his kohanic ancestry, coupled with the fact that the great majority of Jews are not kohanim,d determine that the man should not be considered a kohen. The woman and daughter should undergo an Orthodox conversion and the man and woman should be married according to Halakhah. Based on this precedent, in our case there should be a thorough investigation of the man to determine whether he is indeed a kohen.

In the end, there are serious deficiencies in following either of the first two opinions (Rabbenu Tam’s view is not quoted in the Codes nor by contemporary authorities, while Rabbi Hoffman’s opinion results in children who are halalim). Furthermore, disqualifying someone as a kohen is not to be taken lightly and requires serious consideration. However, we are not anxious to permit such a grave matter. Therefore, you must present this case to an accepted bet din for a ruling, and perhaps this discussion will be a small peg on which to hang it.