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Notes from the Marom Bet Midrash

How to be a Mamzer

Rabbi Jeremy Gordon

Section I: What is a ממזר?

ממזר (mamzer) is a hapax legomenon: It's only mentioned once in the entire Bible:

Deut 23:3
A mamzer shall not enter into the congregation of the Lord, even in the tenth generation shall be admitted into the congregation of the Lord.
דברים כ׳ג ג
לא יבא ממזר בקהל ה׳ גם דור עשירי לא יבא לו בקהל ה׳׃

There is no indication in the surrounding verses to suggest what it might mean.

(Rashi commentates: לא יבא ממזר בקהל ה׳—לא ישא ישראלית׃ "Shall not enter into the congregation" means he shall not marry an Israelite woman.)

Mishnah, Yevamot 4:13
Who is a ממזר? [The offspring] of any union of near relationship to which the term "he shall not come" applies. These are the words of Rabbi Akiva.
Shimon of Teman say, "[the offspring of] any union for which the penalty is כרת caret [spiritual excision]." And the halachah is in accordance with his words. [I.e. this had passed into Jewish law at the time of writing.]
Rabbi Yehoshua says, "[The offspring of] any union for which the penalty is death at the hands of the Court."
Said Rabbi Shimon ben Azzai, "I found a family register in Jerusalem in which it was recorded, 'so and so is a ממזר because he is the offspring of a married woman,' which confirms the words of Rabbi Yehoshua."
יבמות פרק ד משנה י׳ג
איזהו ממזר, כל שאר בשר שהוא בלא יבוא, דברי רבי עקיבה׃ שמעון התימני אומר, כל שחייבין עליו כרת בידי שמים׃ והלכה כדבריו׃ רבי יהושע אומר, כל שחייבים עליו מיתת בית דין׃ אמר רבי שמעון בן עזאי, מצאתי מגלת יוחסין בירושלים וכתוב בה, איש פלוני ממזר מאשת איש, לקיים דברי רבי יהושע׃
[The Mishna goes on:]
אשתו שמתה, מותר באחותה׃ גרשה ומתה, מותר באחותה׃ נשאת לאחר ומתה, מותר באחותה׃ יבמתו שמתה, מותר באחותה׃ חלץ לה ומתה, מותר באחותה׃ נשאת לאחר ומתה, מותר באחותה׃

This is the definition used nowadays: the offspring of a married woman and a man who is not her husband.

Lev. 20:10
If a man commits adultery with a married woman, committing adultery with another man's wife, the adulterer and adulteress shall be put to death.
ויקרא כ י
ואיש אשר ינאף את אשת איש אשר ינאף את אשת רעהו מות יומת הנאף, והנאפת׃

Yet there is also another source:

Mishnah, Yevamot 7:5
[There is a legally appropriate relationship] and a daughter is born, but the daughter goes and marries a slave or a non-Jew, and a son is born from them—this is a ממזר.
יבמות פרק ז משנה ה
בת ישראל לכהן, ובת כהן לישראל, וילדה הימנו בת, והלכה הבת ונשאת לעבד, או לגוי, וילדה הימנו בן, הרי זה ממזר׃
The halacha has never been according to this! We pasken in a way that completely rules this out!
Shulchan Aruch [a mediaeval law code] EH 4:13
Who is a ממזר? One who comes from any of the categories of ariyot—forbidden couplings (Lev. 18 & 20), whether they get כרת [spiritual excision] or death penalty.
שלחן ארוך אבן העזר סימן ד סעיף י׳ג
איזהו ממזר? זה הבא מאחת מכל מעריות, בן בכייבי מיתות בין בחייבי כריתות, חוץ מהבא מהנדה שאע״ף שהוא פגום אינו ממזר אפילו מדרבנן׃

Section II: The Ethical Problem

Deut 24:16
The parents shall not be put to death for the [sins of the] children, nor children for the [sins of the] parents; every person shall be put to death for their own sin.
דברים כד,טז
לא יומתו אבות על בנים, ובנים לא יומתו על אבות׃ איש בחטאו ומתו׃
Louis Jacobs: "The Problem of the mamzer", Tree of Life:
There is a frightening proliferation of technical mamzerim on a scale that is completely unknown or even imagined in the classical period of the halachah. In addition there is the creation of a caste of untouchables, which further divide the Jewish community.

Technical mamzerim: a couple separate, get a civil divorce, then the woman remarries and has children. This makes the children mamzerim. There is a חשש ממזרות - fear of mamzerim amongst the Orthodox in this country; the United Synagogue declines to have anything to do with them.

Another example, from fifty years ago, is women who survived the Holocaust but were separated from their husbands. They waited a year, two years, five years, ten years, then concluded their husbands were dead and remarried. But sometimes the husband did indeed turn up twenty years later, and that makes the woman's children from her second marriage mamzerim.

Section III: Whose problem is it anyway?

Leviticus Rabbah 32:8:

And I returned and considered all the oppressions that were done under the sun and beheld the tears of those that were oppressed and they had no comforter, but on the side of their oppressor there was power, but they had no comforter (Lam 4:1).

Daniel the tailor interpreted this verses. All the oppressions: these are the mamzerim... Their mothers committed a sin and these humiliated ones are removed!? This one's father had illicit sexual relations—What did [the child] do? Why should it make a difference on him? They had no comforter, but on the side of their oppressor there was power—this is the Great Assembly of Israel which comes against them with the power of the Torah and removed them based on "no mamzer shall enter the congregation of the Lord" (Deut. 23). So G-d says, "I have to comfort them; in this world they are slag, but in the world to come they are pure gold."

Don't worry about the mamzer; G-d will sort it out in the world to come. But Daniel is angry with the rabbis; he is calling them the oppressor.

Why is he doing this? David Novak explained: it is because the rabbis have already deleted Yevamot 7:5 from halachic consideration. If they could do this with mishna 7:5, why can't they do it with 4:13 and relieve all such people from being excluded from the community!?

There is a great tradition of technical workarounds in Judaism. For example, a person turns up in a village; they are accepted as Jewish without having to prove it. Why can't something similar be done here (see further below).

Note also that this is a rabbinic text: even though Daniel is laying the blame strongly on the rabbis here, the rabbis themselves preserved this text and called it holy.

i) Technical fixes

Talmud, Kiddushin 71:
Rabbi Isaac said, "The Holy Blessed One showed charity to Israel, in that once a family is mixed up, it remains mixed up."

I.e. you can't prove that someone is a mamzer since their family is mixed up.

Talmud, Sotah 27a:
Let a man marry the daughter of a woman of bad reputation rather than a woman of a bad reputation; because Rav Tahlifa, of the West, recited in the presence of Rav Abbahu, If a woman is an adulteress, her children are legimitate since the majority of the acts of cohabitation are ascribed to the husband.

The power of the asumption here! The rabbis aren't stupid, but they don't want to blight a child's life forever.

Whose job is it to sort this mess out? According to Daniel the Tailor, the rabbis!

Talmud, Yevamot 80b:
Raba Tosfa'ah stated about a woman whose husband was overseas for twelve months, that the child was kosher. [Why? Because a birth may be] delayed.

...And just in case you thought this meant the rabbis thought some women could gestate like elephants:

Tosafot [mediaeval commentary on the Talmud] Kiddushin 73a DHM Mai Ika
When the husband is overseas there is also the possibility of rendering the child kosher, since maybe he came and had intercourse with her using the Divine Name to teleport home. This happened in the case of the father of Shmuel who went overseas and teleported home by means of the Divine Name and fathered Shmuel. (Non-literal translation)
מאי איכא מיעוט ארוסות כו׳ ... ועוד קשה ... שהלכו בעליהם למדינת הים דהאי נמי יש לנו להכשירו דשמא בא על ידי שם ושימוש כי ההוא עובדא (בירושלמי) דאבוה דשמאול שהלך למדינת הים ובא על ידי שם ושימוש והוליד את שמואל׃

This Shmuel is a considerable halachic figure! Yet he was not labelled a mamzer; the sages preferred to stretch credulity in coming up with a workaround rather than label him a mamzer.

Ovadiah Yosef [Sephardi Chief Rabbi of Israel]. Yebiah Omar 7:EH6 (precis):

A couple are married; the husband leaves and moves in with non-Jewish partner, without issuing a get [bill of divorcement]. The wife "remarries", has kids, takes them to a Charedi [ultra-Orthodox] school, wants to marry them off. [Problem: they're fairly self-evidently mamzerim. But....]

Rav Yosef refuses to take evidence from the wife (because she is a woman), from the husband (because it would impact his grandchildren, so he is considered "too close"). He doesn't go looking for the Rabbi who performed the first ceremony and doesn't go looking for the כתובה [marriage certificate] which has, conveniently, disappeared. He even suggests that since the first husband still visited the wife maybe he and not the second man was the daughters' father.

This is a twenty-five page teshuva [responsum]: if you're going to go into this area, you'd better have your entire armoury of prooftexts!

This was an incredible halachic stunt to pull off. R. Yosef has gone some bad publicity for things he said of late, but in his time, he was a very powerful force for good. For example, he was also responsible for making skin grafts halachic, and therefore permissible in Israel, in the 1970s, after visiting a hospital, and, on seeing the patients in the severe burns unit, asking "isn't there anything we can do?" and being informed of the situation.

Louis Jacobs:
A very good case can be made out for at least avoiding any investigation the purpose of which is to uncover the identity of mamzerim. This is certainly the norm among the Orthodox in most parts of the United States where cases of mamzerus rarely occur because the Orthodox rabbis are intentionally perfunctory in their investigation.

(If only they had the same attitude in this country...)

One problem is that most of the technical fixes apart from the first one don't work in the case of the Holocaust survivors.

ii) The Appeal to Morality.

Is Judaism moral? The Bible claims its morality!

Deut. 4:5-8:
See, I have imparted to you laws and rules as the Lord my G-d has commanded me... Observe them faithfully for that will be proof of your wisdom and discernment to other peoples who on hearing of all these laws will say "surely that great nation is a wise and discerning people... what great nation has laws and rules as perfect as all this teaching that I set before you this day."
Psalms 19:8-10:
The law of the Lord is perfect, restoring the soul... The precepts of the Lord are right, rejoicing the heart, the commandment of the Lord is clear, enlightening the eyes.
Elli Spitz: CJLS "On Mamzerus"
A reliance on hermeneutic rules of interpretation and legal loopholes emerges from the view that Torah embodies an all encompasing eternal wisdom. There is a price paid, however, for only looking inwardly for the justification of change. The hermeneutic rules may fail to provide a comprehensive solution, as in the case of mamzerus. Preserving the system may begin to look more important than acting justly and halacha may begin to look more like a chess game than a system of religious striving. In the words of Rabbi Gordon Tucker, "Halachah is a theological legal system. Separating law from moral principal in such a system, is to separate moral principles from G-d, and that is theologically untenable."... When asked if a law of the Torah can be immoral we would respond, no! It is precisely because we see G-d as the source of morality that we cannot accept that a Jewish law would lead us away from morality.
Spitz:
There are three cases in the Talmud in which Torah commands are interpreted as only theoretical;... the rebellious child [who is to be put to death for not heeding his parents], the idolatrous city [which is to be destroyed] and the affliction of a house [a house afflicted with צראת has to be torn down], all addressed in Sanhedrin 71a. Regarding each law there is a description of practical impediments barring implementation, followed by a ברייתא [Mishnaic-era but non-Mihsnaic text] that states, "it never was and never will be. And why is it written? Learn it and you will receive a reward." And for each law there is a statement made by a Rabbi that he knows of an actual case in which the law was administered... "Rabbi Yonatan said, 'I saw him [the rebellious child executed for not heeding his parents] and sat on his grave.' [Nonetheless the law is held as never having been in operation.]"

Or, as R. Gordon previously put it, "It never happened." "It did! I saw it and sat on the boy's grave!" "No you didn't!"

An interpretation: It is as if it never happened. If you see a rabbi doing something, you are likely to conclude that this is the way it should be done.

So why then do we have this law of mamzerus? Because it tells you not to commit adultery, and hallows marriage. Sure we should leyn Deut 23:5. But don't think that we should apply it!

Mishna Sotah 9:9
When murderers increased in number, the rite of breaking the heifer's neck was abolished... When adulterers increased in number the application of the sotah waters [trial by ordeal] ceased and Rabbi Yochanan ben Zakkai abolished them as it is said, I will not punish your daughters-in-law when they commit adultery. (Hos. 4:14)
משרבו הרצחנים, בטלה עגלה ערופה, משבא אלעזר בן דינאי, ותחינה בן פרישה, ובן פרישה היה נקרא, חזרו לקרותו בן הרצחן׃ משרבו המנאפים, פסקו המים המרים, ורבן יוחנן בן זכאי הפסיקן, שנאמר )הושע ד( לא אפקוד על בנותיכם כי תזנינה ועל כלותיכם כי תנאפנה כי הם וגו'׃
Avodah Zara 8b
Forty years before the destruction of the Temple the Sanhedrin abandoned [the Temple grounds] and held its sittings in Hanuth... Why? Because when the Sanhedrin saw that murderer were so prevalent that they could not be properly dealt with they said, "Rather let us be exiled from place to place than pronounce them guilty of capital offences as it is written, you shall carry out the verdict that is announced to you [only when you are sitting in the Temple grounds]" (Deut 17:10).
ארץ העמים ועל כלי זכוכית ארבעים שנה עד לא חרב הבית גלתה סנהדרין וישבה לה בחנות׃ למאי הלכתא אמר רבי יצחק בר אבדימי לומר שלא דנו דיני קנסות׃ ... לגופו ג' מאות לולניאות של ברזל ועשאוהו לגופו ככברה אמר רב נחמן בר יצחק לא תימא דיני קנסות אלא שלא דנו דיני נפשות׃ מאי טעמא כיון דחזו דנפישי להו רוצחין ולא יכלי למידן אמרו מוטב נגלי ממקום למקום כי היכי דלא ליחייבו דכתיב (דברים יז) ועשית על פי הדבר אשר יגידו לך מן המקום ההוא מלמד שהמקום גורם:

(R. Gordon said there's an interesting midrash here (corresponding to the ellipsis in the English above, presumably), but after typing up all of this it seems too much effort to work through the Hebrew with a dictionary. Any takers?)

Don't read this as modern liberal humanism here! The Sanhedrin don't believe that this is what G-d wants them to do. They are not making this attitude up themselves, they are getting it from elsewhere in the Bible—ויברא אלקים את־האדם "G-d created Man in G-d's image"—so they legislate capital punishment out of existence.

Spitz:
It is within our authority to refrain from using certain procedures which effectively make the Biblical law inoperative. We have the precedent of Rabbis and priests who refused to hear capital cases, who chose no longer to administer the sotah test. The prerogative of making a law inoperative was explained as a response to a change in the social situation that made the Biblical mandate ethically unacceptable or ineffective as a deterrent against sexual misdeeds. When we say that children should not suffer for the sins of their parents it is not a morality of the hour, but an ethical perspective firmly rooted in our tradition.
Jeremy Gordon:

Three paths lie before any Rabbi when faced with a case of suspected ממזר.

On the first path, a ממזר is acknowledged as such, and in pain and sadness placed beyond the community. The good news is that Judaism is allowed to remain pure, but this is done at the expense of the Jews. This is deeply damaging to the fabric of קלל ישראל [the Community of Israel]. More damaging still, in declaring a person a ממזר, we have become complicit in a legal system that is prepared to accept the unwarranted suffering of individuals. We bring our entire religious quest into disrepute.

On the second path the Rabbi stretches various technical solutions to breaking point to save an individual from the taint of ממזרות, while retaining the existence of the category. This suggests a certain lack of integrity in the application of the law, there is something distasteful, almost dishonest, by the way law is pulled to make it say whatever we want it to say, when we still protest that we are bound by it and not the other way around. The good news is that our Rabbi is still able to say he or she accepts the obligations of halacha, the bad news is that others may not believe it. We have thereby brought our entire religious quest into disrepute.

On the third path (the path advocated by Rabbi Spitz) we render the category of ממזרות inoperative. We do so by relying on a תשובה [responsum] which contains 155 learned footnotes [as proof texts], which articulates it moral passion in the language of Biblical verses and מדרשים [midrashim] and even suggests that the very method of rendering the halacha inoperative is in itself halachic. But we have turned out back on a Biblical mandate. The good news is that we have been honest in our treatment of halacha, the bad news is that halacha now lies bleeding. We have, again, brought our entire religious quest into disrepute.

Any decision weakens our people, our faith and/or the Halacha which has driven our quest of the Divine for thousands of years. Which decision weakens Judaism less? And, more relevantly, what role does this question have in deciding which path to follow?

[I don't think I've seen Rabbi Gordon more passionate about an issue. This is evidently an issue he takes very personally.]

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