K'ddushei K'tana

Rabbi J. David Bleich

The Jewish community has been shocked by reports of a father who has inflicted potentially grievous harm upon his minor daughter as a means of extorting concessions from his estranged wife. The husband alleges that he has exercised the authority vested in a father by biblical law in contracting a marriage on behalf of his daughter. In doing so, he has deprived her of capacity to enter into any future marriage so long as the first marriage is not dissolved by death or divorce. In refusing to disclose the identity of the groom unless and until his demands are satisfied the father has placed his daughter at his mercy for the rest of her life. An anonymous husband cannot be persuaded to execute a religious divorce, neither will his wife ever be able to prove her widowhood.

Fortunately, the potential for multiplication of this type of noxious parental abuse is limited. First, the active cooperation of a "groom" must be forthcoming. Since polygamy is now prohibited by Jewish law, already married men are not eligible candidates and any unmarried male entering into such an arrangement forecloses to himself possibility of any future marital relationship. Surely the class of men who would even consider blandishments to enter into such a sham marriage must be quite limited. Moreover, two other observant Jews, unrelated to any of the parties and to each other, must agree to serve as witnesses. Unfortunately, media attention tends to encourage copycat phenomena. Although we are unlikely to witness an epidemic of child marriage, even one additional case of a young girl rendered an agunah (a chained woman deprived of the potential to enter into a viable marriage) is one too many.

Divine law needs no apologia; scoundrels who misuse it owe an apology both to G-d and man. But a community that fails to prevent misuse must be held accountable for its nonfeasance.

Biblical law makes provision for institutions that appear bizarre when viewed through the prism of twentieth century Western culture -- but the Bible does not mandate their utilization; much less does it desire their distortion. "For the ways of the Lord are just and the righteous walk in them, but the wicked stumble therein" (Hosea 14:10).

The Bible sanctions polygamy. Polygamy was and remains the norm in societies in which there is a significant surplus of females over males. In antiquity such demographic imbalance was born of frequent warring between clans and by accidents to which hunter-gatherers were prone. In an age in which a woman could not freely earn her own livelihood the economic needs of women were met by fathers, husbands and sons; otherwise the destitute woman became a burden upon society or suffered an even more ignominious fate. Little wonder then that plural marriage became the solution to an otherwise intolerable problem.

Cultural anthropologists have long recognized that in many widely diverse societies marriage takes place at an age corresponding roughly to one third of the average life span and that husbands are generally somewhat older than their wives. Examination of the scriptural passages describing the age of the marriage and death of various biblical personalities in the antediluvian period shows this to be the case, as does a reading of the social history of Western civilization and the history of our own country as well as an analysis of marriage licenses and actuarial projections in our own day. Child marriage was common -- and indeed the norm -- in an age in which longevity anticipation was all too brief. As recently as the sixteenth century the renowned Rabbi Moses Isserles refused to decry the practice of taking a child bride because of the dearth of eligible marriage partners.

Changing demographic realia caused polygamy to die a natural death among Western Jews long before the advent of the medieval period. Changed socioeconomic conditions also made polygamy socially undesirable. Since plural marriage was never commanded or even encouraged and since polygamy had outlived its social utility, Rabbenu Gershom of Mayence pronounced a formal ban against the practice in approximately the year 1000 in order to prevent even isolated occurrences.

A father's right to contract a marriage on behalf of his minor daughter was designed to assure her a husband and to enhance fecundity and with it the propagation of the Jewish people. The Talmud itself declares that it is far better -- indeed the term employed is "mitzvah" -- to delay marriage until the child reaches the age of legal capacity and can give meaningful assent or make her own choice. A situation in which the father refuses to identify the groom defeats the very purpose for which such authority was conferred upon him and makes a mockery of biblical license for child marriage.

The problem now confronting the Jewish community is the product of human wickedness and venality. There is, however, a solution based upon well-founded precedent. In fifteenth-century Italy there seems to have been a rash of incidents involving unscrupulous dandies who were recognized as being of less than sterling character but who apparently had a way with impressionable young ladies. Since consent of the brides' parents was not forthcoming, they eloped and later abandoned their young wives. These unfortunate women had reached the age of legal majority and hence the marriages were entirely valid.

The elders of the community found a means to prevent future occurrences. They promulgated a communal edict directed against the witnesses to a wedding ceremony celebrated without the presence of the rabbi and officers of the community. Jewish law requires the presence of two qualified witnesses in order for a marriage to be valid. Since the witnesses, by their very presence, were in violation of the communal edict, ipso facto, they became transgressors and evildoers and hence disqualified from serving as witnesses. The edict had the effect of disqualifying any and all witnesses, with the result that a wedding celebrated in the proscribed manner was rendered a nullity.

Since in our day there is no legitimate motive for child marriage the remedy to misuse of that institution by unscrupulous fathers is pronouncement of a herem ha-kehillot, a communal ban, against any father who attempts to avail himself of that prerogative and against anyone who agrees to serve as a witness to this nefarious deed. For technical halahkic reasons, it would be wise to direct the ban against anyone who knowingly enters a site at which the marriage of a minor is to be celebrated. Any marriage solemnized subsequent to promulgation of such an edict would be null and void by reason of absence of qualified witnesses with the result that fathers would be deprived of the ability to misuse paternal privilege in promoting their own personal agendas.

In eras in which the Jewish community was structured as a kehillah the duly elected representatives of the community had full authority to pronounce such a ban. For a variety of historical and socio-political reasons a kehillah structure has not emerged in the United States. Hence, in this country, for a herem ha-kehillot to become binding, approval must be sought from the governing bodies and rabbis of individual synagogues.

Never before has there been unaminity in recognition of a socio-religious problem. Never before has there been universal recognition of the need for a remedy. Perhaps this time our community will do what it has never before done: implement a solution that is entirely within its province and power qua community.

K'ddushei K'tana