Taking on the tormentors

The halitzah ritual, as it is practiced in rabbinic court today, demonstrates the callousness of some of the rabbinic judges, officials and the system as a whole to the emotional well being of women and men who have been touched by death and tragedy. It demonstrates how a commandment that was meant, among others things, to protect the woman, could transform into an obstacle in her life, a hazard. This occurs without the rabbis reflecting at all on what is happening, or working to change the situation. Or, perhaps this is just a mirror of the powerlessness of the public, which remains silent and accepting of everything as if it were ordained by God.

Halitzah is the ceremony by which a brother-in-law releases himself of the obligation to marry his deceased brother's wife should the brother have died before producing offspring. The ceremony involves taking off the brother-in-law's shoe, as he hands it to his deceased brother's wife to release her from the duty of marrying him in order to produce a name for his brother. The woman is then free to marry whomever she chooses. 

Here's another story the likes of which you probably have not heard: An elderly woman, about 60, wanted to register her marriage with the rabbinate after having been widowed from her first marriage after 4 years and divorced from her second marriage. The rabbinic clerk noticed that the woman had never obtained halitzah from the brother of her first husband who died without children. Although she had managed to slip through the system the second time she married, there’s no expiration date on halitzah. So in order to be able to marry a third time, she was forced to seek out her first husband's brother so that he could perform the ceremony (Who keeps in touch with the brother of a husband who died some forty years ago?)

But can you believe this!? The first husband's brother turns out to be a diabetic and a double amputee in both legs, from the knees down. Since halitzah requires a husband to wear a shoe and to walk a few steps, a man without legs cannot carry out the halitzah ceremony. We might assume that the woman is allowed to marry without halitzah. But no. She’s stuck.

Only the intervention of a wise rabbinic judge who discovered a creative solution allowed for the possibility of releasing the woman from the halitzahh ceremony in an altogether ingenious way. It turned out that the poor husband’s brother was not only legless, but impotent. The rabbis discovered this from testimony that they took from the brother-in-law’s doctor. According to Jewish law, if the husband's brother is impotent and cannot carry out the act of sexual intercourse necessary to fulfill his obligation of marrying his brother’s wife and continuing his brother’s seed (yibum), this frees the woman from the need to undergo the halizah ceremony.

Each year, approximately 15-20 women undergo the halitzah ritual. This is a very large number. Every woman is a whole world unto herself. Every case involves a tragic death. At best, the woman has to undergo a humiliating ceremony that is hard for her, for her-brother-in law, and for their families. In some cases, she has to wait for many years until her brother-in-law reaches the age of 13. At worst, she may be subject to extortion on the part of her dead husband’s family.

2 halachic solutions

The first solution is a “shtar halitzah.” This is a contract that the brother of the groom would sign before the wedding in which he would commit to immediately undergo the halitzah ceremony should his brother die without children and to pay a penalty if he does not. This solution is far from perfect.

The second proposal is to add a clause in the Jewish marriage contract (the ketubah) that would state that the marriage (kedushin) would not take effect if the husband dies without children. A clause such as this one was written into an Algerian ketubah in January 1955 that I recently came across. At the Center for Women's Justice, we have added a similar clause to our Contract for a Just and Fair Marriage.

Creative rabbinic minds have existed for many generations, but today no rabbinic leader seems to have the courage to take up the gauntlet to make sure that solutions such as the ones used in Algeria over 50 years ago are actually employed in a systemic way. We need to start a campaign that will fight to change the ketubah so that it addresses the problem of halitzah. The change will not come from the rabbis, it will only occur as a result of a struggle undertaken by a concerned public.