On Cohanim and Converts, A Responsum
Restrictions on whom a Cohen may marry form part of a pyramid of marital possibilities for Jews. Normal Jews may marry any Jew. Extra restrictions apply to the Cohen and extra restrictions still apply to the High Priest who is only allowed to marry a virgin (Lev 21:13). The more exalted a person’s halachic status, the more marital restrictions are placed upon them.
I don’t make any claim that there is something unethical or immoral about the prohibition on a Cohenmarrying a convert. The American constitutional provision that insists that only a person born an American can become President of America is based on a similar sense that, as a matter of theory, our status at birth remains important, even if we change our status in life.
So much for the theory. The problem comes when, in the contemporary world, a male Cohen falls in love with a convert or, as is more often the case, a non-Jew who subsequently decides she wants to convert. At the point we, as Masorti Rabbis, meet these couples they have taken a decision to spend the rest of their lives together. They have also, often, been refused a marriage licence by Orthodox B’tei Din and have been placed in a position where they are close to rejecting all, or at least many forms of traditional Jewish observance and community. There are several possible responses open to a Masorti Rabbi.
- i) Do everything possible to disrupt the relationship in the hope that the newly single Cohen will go on to find a more halachically appropriate spouse.
- ii) Walk away from the couple – what they do is their own business, we will not look to support them.
- a. In the case of a woman who wishes to convert this leaves the Cohen living with a non-Jewish partner and would result in any children being considered non-Jews.
- b. In the case of a woman who has already converted this leaves the Cohen living with a woman without being married to her.
- iii) In the case of a woman wishing to convert we could accept her application to conversion, but decline to officiate at any chuppah.
- iv) We could accept a candidature for conversion and officiate at the chuppah with joy.
The Basis of the Prohibition
The key verse on who a Cohen may marry is Leviticus 21:7
They shall not take [lo yikchu]a harlotrous and defiled woman [isha zona v’halahah], nor shall they marry one divorced from her husband, for they are holy to their God.
On this verse the early and foundational commentary Torat Cohanim states;
A harlotrous and defiled woman: The Sages say a convert is the harlot that is mentioned here [ain zona ele giyoret]
In the parallel Talmudic discussion, BT Kiddushin 78a we find the following;
It was taught, Rabbi Shimon Bar Yochai said, ‘A woman who converted aged less than three years and a day is eligible to marry a Cohen, as it is said (in the context of a battle against the Midianites, ‘kill every boy and every woman that has known man by lying with him,) but all the young women, who have not known a man by lying with him, keep alive for yourselves’ (Num 31:17&18). And wasn’t Pinchas [a cohen] among them!
But the Rabbis said, keep them alive for yourselves means as slaves.
Shimon Bar Yochai understands this verse to permit anyone in Israel (including Cohanim) to marry a virgin Midianite who (let me put this anachronistically) subsequently converts. He argues that this must be so since these women are permitted generally to all the people of Israel, seemingly including Pinchas and the other Cohanim.
According to the Rabbis however, this verse from Numbers has nothing to do with whom a priest may take as a wife, rather whom they may take as a slave. Instead, say the Rabbis in the continuation of the Talmudic passage above, the origin of the forbidden nature of this marriage is a verse from Ezekiel;
And no priest shall drink wine, when they enter into the inner court, and they shall not take widows or divorced women for wives [lo yikchu lehem lnashim], but they shall take virgins of the seed of the house of Israel [betulot mi zera yisrael].
Rav Yehudah says both parents must be of Jewish seed.
Rabbi Eliezer ben Yaacov says only one parent needs to be of Jewish seed.
Rabbi Yose says the woman must be one who was conceived [using the root form zera] as an Israelite.
Rabbi Shimon bar Yochai says the woman must have entered into puberty [also using the root form zera] as an Israelite.
The major legal codes (while silent on the relative merits of the claims of Rabbis Yehudah and Eliezer ben Yaacov) reject the position of Rabbi Shimon bar Yochai (that a woman who has converted pre-puberty may marry a Cohen) and adopt the position that a convert may not marry a Cohen, even if the conversion took place when the girl was a very young child.
Two Orthodox Responsa
David Tzvi Hoffman d. 1921 came from Romania to lead the Hildesheimer Rabbinical Seminary in Berlin. He is known for an openness to the world of Wissenschaft, a 19th Century movement that investigated Jewish literature and culture, and a willingness to engage with the challenges of modernity, especially around the issue of conversion.
Rav Hoffman examines the case of a non-Jew, married, in civil law, to a Cohen. They have a son who is circumcised, and the woman decides that she wants to convert, marry the father of her child ‘according to the law of Moses & Israel’ and bring up her child as Jewish. Hoffman begins by balancing the relative seriousness of a Cohen either living with a non-Jew or living with a convert. It is hardly a fair fight. The former relationship, in the eyes of Rav Hoffman (citing his father Maharam Shik), is forbidden deoraita – as a matter of Torah law, and its breach is punished by caret – one of the most dramatic punishments in the Rabbinic system. The latter, in Hoffman’s language, and that of his father ‘is not permissible, but only considered as a general prohibition – issur lav.’ On this basis, Hoffman begins by suggesting that converting the woman in order to save the man from caret would ‘certainly be a good thing.’
However, since the Talmud insists that a convert must accept the whole of Torah without exception (Bechorot 30b), it might be thought that converting a woman who wanted to marry a Cohen would present a problem since the woman would be converting NOT in order to keep all of Torah. There is a further problem which would apply to a Bet Din which supervised the conversion. They would be acting to allow a sin (the issur lav of allowing the man and woman to live together), and even though this would save the man a greater sin (the caret-invoking sin of leaving the man with his non-Jewish partner) there exists a principle that one person should not sin in order to save another from sin (Shabbat 4a).
From a strict technical perspective, or from a perspective that wishes to protect himself from any suggestion of personal failing, Hoffman should clearly turn away from the couple. But he cannot. Hoffman is not a halachic technocrat and he is prepared to expend ‘spiritual capital’ by engaging in the situation. He finds a technical way of getting round the problems he has identified, but from any kind of objective perspective, it is hardly persuasive. Hoffman states that as long as the woman never explicitly states that she is going to reject the law that prohibits a convert from marrying a Cohen she is to be accepted, even in her breach of the law.
Even if we [members of the Bet Din] know that she is going to sin on the matter of this forbidden act, nonetheless for the sake of a repair for the cohen and a repair for his child – taknat hacohen v’taknat zar’o – we receive her.
Hoffman also raises the issue of the profanation of God – hillul hashem – if the woman is not to be accepted. If the woman is turned away from her serious wish to convert – even if she would wish to live with or marry a Cohen – she could be led to feel that ‘Israel do not care – merachamim – for non -Jews.’ This seems so shocking a possibility as to urge Rav Hoffman to action.
But what about a wedding ceremony? Rav Hoffman doesn’t go this far.
Even if we accept her as a convert, we don’t officiate at the wedding with the Cohen … This being the case, it is better that she live with her husband [baalah] in a civil marriage than there be a religious ceremony.
In Rav Hoffman’s balancing act the desire to save a Jewish man from caret coupled with the desire to bring the child into the Jewish people outweighs the complexities of accepting for conversion a woman who wants to marry a Cohen. But, for him, the desire to bring the Jewish couple under a chuppah, thereby saving the couple from the general issur of living with a partner without kiddushin, does not overweigh his commitment to the obligation that a Cohen should not marry a convert.
Rav Judah Leib Zirelson, d. 1941 was Chairman of the first international conference of Agudas Yisroel, an early religious Zionist and Chief Rabbi of Kishinev – a position that even saw him serve in the Romanian Parliament. He died in a Nazi air attack on the city he served.
The question posed to Zirelson is perhaps even sharper than that facing Rav Hoffman. There is a couple who wish to spend their life together and, with the preparations for the wedding well underway, it emerges that the bride is a convert and the groom a Cohen (or more likely someone points out the halachic problem with the planned union, this not previously having been realised). The wedding is promptly cancelled and uproar ensues. The author of the question states, ‘what a racket … everyone from the greatest to the smallest [is appalled].’ The questioner reports that the groom threatens, “I will accept baptism in front of everyone and will get married that way for there is no way I will leave my beloved.”
Zirelson is most anxious to ensure that his response is not to be relied on as a general change in Halachah. ‘This is a one-off decree – hora’at shah – in legislating a case as extreme as this … Do not learn from this any leniency in regard to any other issue relating to converts and cohanim.’But he is prepared to permit the ceremony.
This is a very bold piece of Halachah, using the issue of freeing a slave to overturn a well-established halachic principle, I wonder if the Rabbi is moved by the way the codes treat the issue of freeing the slave, even though he does not cite these texts directly.
It is permissible to free a slave in order to do a mitzvah, even a rabbinic mitzvah such as when there are not ten in the Synagogue … and similar cases. Equally a female slave that the people are treating as a free-for-all – shenehagim bah ha’am minhag hefker – behold she is a stumbling block to sinning so you force the master to free her so she can get married and the stumbling block be removed and similar cases.
Rambam MT Hil Avadim 9:6
The emphasis in the Rambam, particularly in the context of freeing the woman, is on removing a stumbling block that results in immoral behaviour, and instead allowing a marriage that brings the possibility of holiness. This seems, precisely, to be the motivation driving Rav Zirelson.
It would be a serious mistake to consider that Rav Zirelson abdicates a concern with Halachah, as he rides roughshod over the specific prohibition of a Cohen marrying a convert. It is rather that he is anxious to support the institution of marriage and the obligation to ‘be fruitful and multiply,’ moreover he seems to be wishing to avoid losing the Cohen as a Jew. He defends Halachah even as he seems to disregard it. That said, Zirelson is quite categorical that his leniency in this one-off specific instance should not be relied upon in general. He is minded by the fact that the wedding had already been planned, that the groom is threatening apostasy and by a fear that refusing the wedding would promote anti-semitism in the community who sought his help. We therefore need to look further for a more general approach.
Converts, Cohanim, Assumptions, Doubt and Probability
The key explanation of the problematic verse Leviticus 18:21 – ‘the convert is the harlot that is mentioned here,’ – is, as stated above, found in the Mishnah. In a Tosafot on that Mishnah the prohibition against marrying a convert is explained.
The reason is that anyone coming from a place of idolatry [shebah min haovdei kokhavim] is steeped in depravity [shutafim bzimah].
This commentary goes on to make the surprising statement that;
A female convert is forbidden [to a Cohen] because of the prohibition of marrying a zonah even if she herself has not acted in a harlotrous manner [af al gav d’lo zintah].
There are two ways to understand this important statement. One is to consider that, in forbidding a convert to marry a Cohen, the Rabbis have abandoned any connection to any notion of actual harlotry, rather equating the terms ‘convert’ and ‘harlot’ without any pejorative comment whatsoever. This seems a forced reading and I do not accept it.
A better ‘pshat’ reading is to consider that the Rabbis wished to forbid all converts from marrying Cohanim without wishing to defame specifically, any particular convert. Instead, surely, they relied on their belief, that such is the level of depravity in the general non-Jewish world that one ought to assume a pervasive level of harlotry which would make it unsafe to allow any convert to marry a Cohen. I wish to engage with this issue in two ways, substantively and technically.
From a substantive perspective it seems wholly impossible to treat the contemporary non-Jewish world with the kind of deep-seated revulsion that would lead a person to consider all non Jews ‘steeped in depravity’. Yes there are issues with contemporary sexual mores and norms, but that kind of blanket approach to all converts (even if it was merited in classical times) now rings untrue. In the sort of situation that confronts a Masorti Rabbi – that of being asked to celebrate a wedding of a pre-existing relationship – rejecting the convert as ‘steeped in depravity’ seems particularly bizarre, not least since the bride and groom are, almost by definition, in the same stage of a relationship – one with the other.
Moreover, from a technical perspective, the blanket accusation that all converts are to be considered ‘steeped in depravity’ seems to contradict the command to love the ger – stranger or convert. Maimonides’ letter to Ovadiah the Convert contains our tradition’s most forceful articulation of the point;
You must know the greatness of the obligation that the Torah imposed on us regarding the foreigner: we are commanded to honor and fear one’s father and mother; regarding the prophets – to heed them … But, concerning the ger – convert, we are mandated to bear them great love, with the full force of our heart’s affection: You must also show love to the foreigner (Deut. 10:19), just as we are bidden to love His name, as it is said: You shall love the L-rd your G-d (Deut. 6:5).
This demand to love comes with a ‘thou shall not’ obligation attached.
One cannot say to a convert, ‘remember the actions of your ancestors.’ As it is written, you shall not wrong or oppress a ger. (Ex22)
Mishnah BM 58b
One wonders what could be a more significant reminder of a person’s foreign-ness and a supposed past of ‘harlotry’ than refusing them marriage?
We are therefore looking at two opposing trends in halachic thought – one which insists we love and do nothing to hurt the ger, and the other which associates all converts with idolatry and harlotry. To apply Rav Zirelson’s approach we have to weigh up these ambivalent approaches. Since the first approach is enforced specifically by the language of the Torah itself some 36 times and since the second is a Rabbinic derivation, based on a verse in the prophetic works and a series of assumptions that cannot be applied in good faith to converts today one might argue that we have enough even at this point to permit the marriage. Nevertheless, we do not wish to completely overturn the tradition. Rather, we are attempting to balance the halacha on one hand and the needs of the couple on the other,
It seems that we are obliged to bend over backwards to find a way to welcome the convert, but we still need a technical loophole that can be exploited to address the prohibition as it is recorded in our texts.
One possibility emerges from an engagement with the language of the Tosafot, which states;
The reason [for prohibiting a Cohen from marrying a convert is] that anyone coming from a place of idolatory [shebah min haovdei kokhavim] is steeped in depravity.
Most Rabbis do not consider most converts to come from places of idolatryat all. The major source for the relationship between contemporary non-Jewish religious practice and idolatry or avodah zarais another Tosafot, right at the very beginning of the Talmud’s major treatment of this issue. Here the concern is with avoiding engaging with idol worshippers in the three days before and after their ‘eid’ or religious festival. The problem is particularly severe if one considers Sunday a Christian eid. That would make any business between Jew and non-Jew impossible seven days a week (as the authors of this Tosafot make explicit.) The Rabbis find a way to consider monotheistic religious practice other than Judaism, admittedly ‘a rejection of holiness,’ but nonetheless not really avodah zara. It is a deeply pragmatic worldview, and also articulates an important theological message about Christianity. I would argue that if one is prepared to consider a practicing Christian as not really engaged in avodah zara the same would surely be true of converts who grew up devoid of any religious practice.
A further loophole emerges from an engagement with the notion that the root of the prohibition lies in the requirement that a priest marry only one of the seed of the House of Israel (Ezekiel 4:22 discussed above). Since the 11th Century it has been clear that the convert is considered to come from the House of Israel. Indeed the convert is considered to have the patriarchs Abraham, Isaac and Jacob (Israel) as their own forefathers or progenitors.
We are, today, particularly mindful of the injustice of applying an assumption of harlotry and pre-existing idol-worship to all converts. We are anxious to strengthen the institution of marriage for those who are living together without the blessings of chuppah and we are particularly anxious to allow Jewish males to find a way to live their lives with their beloved free of any suggestion of ‘marrying out.’The balance of proof, for a technical solution to our problem, has been set in such a way as to welcome any way out of this problematic issue. I hold, therefore, that this provides us with the loophole that allows us to yield to the tremendous tug to ‘love’ and ‘not oppress’ the convert, and thereby officiate at the wedding.
To Celebrate with Joy?
As well as being impractical and unsustainable, it is halachically inappropriate, and even cruel, to allow any concerns about the thin ice on which we tread on an issue like this to impair what must be a day of untarnished joy.
The Status of the Marriage and any Children
If such a wedding does take place kiddushin tofsin – the marriage holds. This is best illustrated by the clear insistence that if, God forbid, there was a falling out in years to come, a get – ritual divorce, would be required.
The child of a Cohen and a convert is considered a full Jew, but a halal, and, as such, should not receive first aliyah nor engage in the other rights and responsibilities of a Cohen. While there is enough of an opening to allow the marriage, I do not feel the same imperative applies to the issue of the status of any children who are, according to all authorities, recognised as full Jews, with exactly the same rights and responsibilities of all Israelites.
Summary & Practical Considerations
- • A candidate for conversion who wishes to convert should not be turned away if she wishes to marry a Cohen.
- • We should officiate at the weddings of Cohanim and converts.
- • These weddings should be celebrated with delight and happiness.
- • The children of these marriages are considered fully Jewish but ‘mehalalin’– the ritual responsibilities and privileges of the priesthood do not apply to them.