Parshat Ki Tetze – פרשת כי תצא

Parshat Ki Tetze – פרשת כי תצא


Rabbi Evan Hoffman – Congregation Anshe Sholom

Parshat Ki Tetze – פרשת כי תצא

September 2, 2017 – יא אלול תשעז


This essay is sponsored by Sisterhood in honor of the birth of Eliana Rachel Waller, daughter of Bruria & Sam Waller, granddaughter of Janet & Gary Waller, and great-granddaughter of Helen & Sherman Pessin.


No-Fault Divorce


Scripture sets forth laws about divorce.  “When a man takes a wife and co-habits with her, it shall be, if she does not find favor in his eyes because he finds in her some shamefully exposed thing, and he writes her a document of divorce and puts it in her hand and sends her away from his house, and she goes out from his house and goes and becomes another man’s, and the second man hates her and writes her a document of divorce and puts it in her hand and sends her away from his house, or the second man dies, her first husband who sent her away shall not be able to come back and take her to be his wife after she has been defiled, for it is an abhorrence before the Lord (Deuteronomy 24:1-4).”


Robert Alter notes that this entire paragraph is one very long sentence, leading up to a prohibition on remarrying one’s ex-wife if she married another man in the interim.  En passant, the text teaches several important legal points: 1) Divorce is a recognized institution in the Mosaic Code.  2) Divorce is effected by means of a certificate of divorcement handed by a husband to his wife.  3) It is lawful for a female divorcee to remarry.


Scripture here does not offer a value judgment on the act of divorcing.  It simply recognizes the social reality that some marital relationships are irretrievably broken such that the husband wishes formally to dissolve the union.  Other Pentateuchal passages similarly offer no value judgment about the termination of a marital bond:   a) God told Abraham, “Do not be distressed over the boy or your slave; whatever Sarah tells you, do as she says (Genesis 21:12).”  Sarah insisted that Abraham expel Hagar and Ishmael from the home, and God seemingly accepts with equanimity the termination of Abraham and Hagar’s quasi-marital relationship.  b) The law of the Hebrew maidservant mandates that the owner (or his son) eventually take the maidservant as a wife.  If the owner fails to supply the maidservant with the basic items and prerogatives owed a wife, she goes free without having to pay for her emancipation (Exodus 21:10-11).  Scripture does not chastise the owner for allowing the potential marital bond to lapse; it merely sets forth the legal and financial repercussions of that decision.  c) The captive beauty must undergo a month-long transition period before the Hebrew warrior may take her as a lawful wife.  If at the end of the waiting period, he is no longer interested in marrying her, he must release her outright and not enslave her (Deuteronomy 21:14).  Scripture does not upbraid the warrior for declining to seal the marital relationship that he had earlier commenced by fornicating with her on the battlefield.


The Talmudic sages regarded divorce, especially the dissolution of a first marriage, as an especially tragic event.  Rabbi Elazar said that the altar sheds a tear when a man divorces the wife of his youthful years (Gittin 90b).  One passage in Scripture could be read as meaning that marriage is intended as an everlasting bond, never to be broken.  “Hence a man leaves his father and mother and clings to his wife, so that they become one flesh (Genesis 2:24).”  The New Testament holds a dim view of divorce.  The Gospels cite Genesis 2:24 in justifying its restrictive guidance: “What therefore God hath joined together, let no man put asunder (Matthew 19:6).”


The early doctors of the halakhah took measures to make divorce less likely, whether because of moral objections to the institution or, more likely, in recognition of the potential social damage caused by high divorce rates.  The literacy rate in the ancient world was very low; even lower was the percentage of people with writing ability.  Halakhah requires a written divorce document, known in rabbinic parlance as a get.  The permissibility of pre-written divorce certificates, or the reuse of old certificates, would have hastened the process.  Instead, the Mishnah teaches: “No divorce is valid that is not written expressly for the woman.  Thus, if a man is passing through the market and heard the scribes calling out ‘Such a man is divorcing such a woman from such a place,’ and he said, ‘That is my name and that is the name of my wife,’ it is not a valid document wherewith to divorce his wife (Mishnah Gittin 3:1).”  The requirement for the document to be written expressly for the sake of the woman, man, and their divorcement – as opposed to being a scribe’s practice draft – is known in Talmudic terminology as לשמה, for her sake.


The halakhah further evolved to create a financial disincentive for a man to divorce his wife on whim.  Originally, the value of the marriage contract (Ketubah), typically 200 zuz, was paid at the time of the wedding by the husband and was held in escrow by his soon-to-be father-in-law.  Since at the time of divorce, the husband had no out-of-pocket expenses, it was psychologically and practically very easy for him to jettison his wife in a moment of rage or displeasure.  Simon ben Shetach (early first century BCE) revised the law such that the husband’s assets are mortgaged to pay the marriage contract but that no money changes hands until divorce or his death.  In this system, the husband is reluctant to expel his wife because then he will have to release assets from his control (Tosefta Ketuboth 12:1).  The sages were adamant that husband and wife not live together even for a brief period without the existence of a Ketubah document, lest it be too easy for the husband swiftly to end the marriage (Baba Kamma 89b).


More generally, the halakhah transformed matrimony from an areligious human institution into a Judaic sacrament.  The Bible speaks of men taking women without ritual fanfare and dismissing them just as casually.  Rabbinic Judaism speaks of marriage as Kiddushin (sanctification), and treats divorce as a complicated ritual act.  Divorce requires witnesses and, by later custom, the presence of a Bet Din; it is no longer a private matter.  The third century Babylonian Amora Samuel warned: “Whoever is unfamiliar with the nature of divorce and marriage should have no involvement with them” (Kiddushin 13a).  In other words, officiating at life cycle occasions should be the exclusive prerogative of the ordained clergy.  By requiring clergy participation, the halakhah makes unjustified divorces less likely to happen.


One way to reduce the number of divorces is to narrow the recognized grounds therefor.  Other than the ambiguous expression ערות דבר, “shamefully exposed thing,” in Deuteronomy 24:1, the Bible does not clarify what acceptable grounds are.  Rabbinic literature, too, largely avoids the topic.  The Mishnah addresses cases of a man divorcing his wife for her evil fame, because she took an objectionable vow, or because she is barren (Mishnah Gittin 4:7-8).  But it makes no comment about whether the husband’s action was appropriate; the point under Mishnaic discussion is whether he may lawfully remarry her.  The Mishnah lists a series of sins for which a woman would forfeit her Ketubah payment upon divorce: feeding her husband untithed produce; having intercourse with him while she is a menstruant; failing to separate Challah from dough; failing to fulfill vows; going out with her hair unbound; and some others (Mishnah Ketubot 7:6).  Again, the focus of the text is not on whether the husband was morally right to dispose of his wife because of these actions.  The concern is wholly financial:  Her bad behavior exempts him from paying the amount stipulated in the marriage contract.


The final Mishnah in Tractate Gittin directly addresses the legitimate grounds for divorce.  “Bet Shammai says: A man may not divorce his wife unless he found unchastity in her, for it is written ‘because he hath found in her indecency in anything.’  And Bet Hillel says: He may divorce her even if she spoiled a dish for him, for it is written ‘because he hath found in her indecency in anything.’  Rabbi Akiba says: Even if he found another fairer than she, for it is written ‘And it shall be if she finds no favor in his eyes’ (Mishnah Gittin 9:10).”  Bet Shammai allows divorce only in response to a sexual transgression by the wife.  Bet Hillel, and its intellectual heir Akiba, permit no-fault divorce.  Even the flimsiest excuse is sufficient justification for terminating the marriage.


Why was such an essential topic in Jewish divorce law relegated to a brief note at the end of the Tractate?  Scholars observe that the final Mishnah in many tractates is a homiletic or moralistic excursus, different in tone and style from the dry legal material of the preceding chapters.  Why, and under what circumstances, should a Jewish couple get divorced?  The Mishnaic redactor could have devoted much space to those questions in the body of the Tractate.  But by the time Rabbi Judah the Patriarch redacted the Mishnah in the early third century CE, the issue of the grounds for divorce was already moot.  The law had already, and definitively, been decided in favor of the Hillelite position.  Judaism accepts no-fault divorce. (This is, of course, separate from whatever the secular civil law of the particular state or country may be.)  The Tractate appropriately concludes by recalling that old moralistic debate and its associated Scriptural exegesis.


It should be noted, however, that traces of the restrictive Shammaitic view of divorce can be found in stray passages in rabbinic literature.  Some of those texts are quite shocking regarding the extent to which divorce was limited.


The Midrash Halakhah wonders why the Sotah law was included in Scripture.  The text explains that divorce is possible only when the wife commits adultery in the presence of two witnesses who warned her about the gravity of her actions.  The Sotah law provides closure for cases in which we do not know whether or not the wife committed adultery (Sifre Numbers 7).  Another Midrashic passage notes that the death penalty can be applied only if the wife commits adultery in the presence of witnesses who warned her.  What to do if there were witnesses to the infidelity, but they did not warn her?  Since she is not executed, one might conclude that she is permitted to return to her husband.  Not so.  If in the case of the Sotah — a situation of uncertain adultery — the woman is forbidden to her husband absent proving her innocence through trial by ordeal, then in the case of definite adultery the woman is, a fortiori, forbidden.  Such a marriage should be terminated through divorce (Sifre Numbers 19).


These passages in Sifre are so surprising that nearly all the traditional and academic commentators proposed textual emendations.  But no emendations are necessary.  The Shammaitic view restricted divorce to cases of infidelity.  The Sifre is a product of the Ishmaelian school, itself an intellectual heir of right-wing Shammaitic Pharisaism.  Sifre Numbers 19 merely adds the detail that the wife’s infidelity must be proven by witnesses.  Sifre Numbers 7 is perplexing in that it requires the witnesses to have warned the wife in order to justify a subsequent divorce.  One could ask why divorce would be necessary then, as the woman has committed the capital offense of adultery and will be executed.  The simple answer is that executions were extremely rare and the death penalty was probably never imposed on an adulteress.  Thus, the cuckolded husband’s only recourse was divorce.


The Shammaitic view that divorce is permitted only in cases of infidelity affected the attitude of the rabbis (even the Hillelite ones) about marriage to a divorcee.  It was simply assumed that a divorcee is promiscuous and an unworthy marital partner.  The Tosefta warns a man who married a divorcee that to earn credit in Heaven he should quickly expel her from the home and that, if he fails to do so, she will soon bury him, as Scripture states “or the second man dies” (Tosefta Sotah 5:9).


An awareness of the residual impact of the eventually-rejected Shammaitic position on divorce can help make sense of the attitudes toward divorce found in the Qumran scrolls and in the New Testament.  Both those bodies of literature have complicated, though generally negative, views of divorce, and are completely opposed to remarriage for a female divorcee.


The Gospels of Mark and Luke oppose divorce.  “Whoever shall put away his wife and marry another, commits adultery against her.  And if a woman shall put away her husband, and be married to another, she commits adultery” (Mark 10:11-12; see also Luke 16:18).  The Markan text ignores the procedural aspects of divorce as well as the express permissibility thereof set forth in the Pentateuch.  No matter; for the New Testament, marriage is forever; any straying is adulterous.  Matthew takes into account the possibility of divorce as set forth in Deuteronomy and acknowledges the need for a certificate of divorcement.  But he denies the legitimacy of divorce “save for the cause of fornication” (Matthew 5:32).”  Moreover, Matthew claims that divorce is not part of God’s plan for the world.  Before Moses, the institution of divorce was unlawful, and was only permitted by Moses “because of the hardness of your hearts” (19:8).


In contrast to the sectarian early Christian and Dead Sea communities, which frowned upon divorce and accepted limited or no legitimate grounds for it, both Philo and Josephus adopted the liberal view identified with Bet Hillel.  Philo notes that a woman can be “divorced from her husband under any pretense whatever” (Philo, Special Laws III, 30).  Summarizing Jewish marriage laws, Josephus wrote: “He that desires to be divorced from his wife for any cause whatsoever (and many such causes happen among men), let him in writing give assurance that he will never use her as his wife any more (Antiquities, 4:8:23).”  Josephus may have been covering for himself.  He was thrice- married.  He divorced his first wife, who was a foreign captive, shortly after their marriage.  He divorced his second wife, who gave birth to three of his children, because he “was not pleased with her behavior” (Josephus, Life 75-76).


Louis Finkelstein offered a sociological explanation for the differences between Bet Shammai and Bet Hillel on matters of infidelity and divorce.  The right-wing Pharisees were wealthy plantation owners who lived away from the population centers.  A woman could not survive there without the material support of the male head of household.  A divorcee in these circumstances was doomed.  Accordingly, Bet Shammai permitted divorce only in cases of the wife’s infidelity.  Her unpleasant post-marriage fate would therefore be entirely her own fault, brought about by her own misbehavior.  The left-wing Pharisees were lower- and middle-class urban traders and merchants.  An independent woman could function in that environment by earning her own keep.  Accordingly, Bet Hillel permitted no-fault divorce because there was no compelling reason artificially to sustain an unhappy marriage.


The halakhah as it was eventually codified takes into consideration the infinite complexity of human relationships.  Bonds of love develop inexplicably, and sometimes come apart just as inexplicably.  The law was designed to secure maximum happiness for people and to protect the vulnerable from the capricious actions of those whom they thought they could trust.