Our parsha this week starts out with a discussion of three laws that have fallen into disuse for various reasons. The first is marriage with a woman captured in war; the second concerns the inheritance rights of the child of the less favored wife in a polygamous household; and the third is the stoning of the wayward and defiant son (to use the wording of JPS). The reasons that these laws are inoperative are instructive. In the first case, we no longer allow soldiers to keep booty taken in war, and certainly not human booty. In the second, we no longer allow polygamy. These two instances are similar in that the circumstances which might give rise to the application of the laws are no longer relevant to the way in which we live today. But in the third, the reason is not so clear. Families still have children, and children continue to be wayward and defiant. Yet, for some reason, the rabbis—as early as the days of the Talmud—already built so many restrictions into this law that it could never become operative, and most are of the opinion that the law never was and never will be implemented.
However, there is another law in the parsha (not a surprise, since this parsha is chockablock with laws) that has been implemented over the course of Jewish history, and yet of which the Etz Hayim commentary says, "The [Committee on Jewish Law and Standards of the Conservative Movement] has adopted evidentiary procedures to render this rule inoperative (Page 1122)." This is the law of the ‘mamzer,’ or, as translated by JPS, ‘the misbegotten.’
According to Jewish law, the mamzer is the issue of a prohibited union, unlike its distant English cousin, ‘bastard,’ which is the issue of simply an unwedded union. While in theory, this definition includes the children of incestuous or adulterous relationships, in practice this generally means the children of a woman’s second marriage when her first marriage terminated in a civil, but not a religious, divorce. In the absence of a religious divorce (a get), the couple is still considered married under Jewish law, and any child a woman has with her second husband is technically a mamzer. (Because the institution of polygamy was not completely eradicated from Jewish law, the child of a man whose first marriage terminated in a civil but not religious divorce is not a mamzer.) For the sake of completeness, I should add that if a woman remarries under the mistaken belief that her first husband has died, has a child in the second marriage, and then discovers that her first husband is alive, the child from her second husband is a mamzer, as well.
In 1970, and again in 1977, the Conservative Movement’s Rabbinical Assembly Committee on Law and Standards held that "the institution of mamzerut is inoperative." However, since these actions took place before it was common practice to issue responsa for such holdings, there is no record of the debate or the vote itself. On March 8, 2000, however, a responsum authored by Orange County Rabbi Elie Kaplan Spitz on the subject was approved by CJLS (15 to 3, with 2 abstentions), and it is that responsum which has provided most of the material cited in this drasha. (The responsum is available on the website of the Rabbinical Assembly-- www.rabbinicalassembly.org – in their section on Contemporary Halacha. The number of the responsum is Even Ha’ezer 4.2000a, which refers to section 4 in that portion of the code of Jewish law—Shulchan Aruch—entitled "Even Ha’ezer" (literally, "the Stone of the Helper," dealing with family law), and indicates that this is the first responsum on this section in the year 2000.)
What are the implications of being a mamzer? Primarily, it means that one cannot marry a Jew in a religious ceremony, and for those living in Israel, it means that one cannot marry there at all. The Rabbinical court in Israel is reputed to keep computerized lists of mamzerim. Rabbi Spitz has given examples in his responsum of twentieth century rabbis who have had to rule on this issue, one in the instance of a civil divorce, and one in the instance of a mistaken belief in the death of her husband. Throughout the ages and including the twentieth century, rabbis have gone out of their way to find ways—on a case by case basis—not to apply the rules of mamzerut. So, for example, if a woman is married, any child she bears is presumed legally to be the child of her husband, even if the husband has been away from his wife for as long as twelve months before the birth of the child.
Another method that rabbis have found to avoid the declaration of mamzerut is to say that the first marriage of the woman was flawed in some way and therefore not a legal marriage. Thus any children from the second marriage are kosher. (The fact that under this analysis, a woman’s children from her first ‘marriage’ are not the issue of a married couple does not pose a legal problem for her or her children.) A particularly galling application of this second method is the declaration by the Orthodox rabbinate that any marriage performed by a non-Orthodox rabbi is not a legal marriage. Therefore, Orthodox rabbis do not have to require a get for the second marriage of a divorcee whose first marriage was performed by a non-Orthodox rabbi, nor are they concerned when the children from the second marriage want to marry under Orthodox auspices.
Rabbi Spitz goes into a lot of detail in his responsum of the various methods used to limit the application of mamzerut, and also discusses the moral issues posed by this institution, not the least of which is punishing the children for the "sins" of the parents. He also discusses the various halachic options for doing away with the institution completely, and explains why the committee decided not to uproot the law itself, but rather to eliminate its application by decreeing that rabbis of the Conservative Movement "will not consider evidence of mamzerut." Reading the responsum gives one a ringside seat to the tensions inherent in the Conservative Movement’s dealing with a 1500 year old legal system, trying to balance respect for the wisdom and awe of the sacred nature of our tradition on the one hand with the realities of modern life on the other.
Shabbat Shalom.