Jewish Law

The Halachot of Women & Men: Who may not enter into the Jewish nation

Lesson # 470 (part 2)
Based on Shulhan Aruch Eben haEzer 4

In all of my writings of the Restatement volumes and in these lessons, I have given my conclusions as to what I think the halacha is at the present time. In this lesson, since it deals with issues that include excision and sometimes the death penalty, I thought it better to only raise the topics discussed in this chapter in the Shuhan Aruch and in the codes and commentaries. Some of the terms mentioned are lost in our times because there was/is a general moving about of the peoples and communities listed in the Torah, Oral and Written. Their names do not have any great significance in our days. The title of the Chapter as it appears in Shulhan Aruch indicates a topic of great significance for the Jewish nation. It includes who may become a convert and who may not. Most importantly it also deals with whom one may marry. When faced with a practical question in this area, a person should consult a very learned Orthodox Rabbi who has familiarity with these laws. A miscalculation may have dire effects not only for the people directly involved but also for their offspring. After much research I have concluded that with the proper halachic advice, the questions facing the persons who seek to get married can often be resolved. I set forth some of the topics discussed by the Shulhan Aruch and commentators on these subjects. Most of these issues do not frequently occur, but I set them forth so that the reader can see what some rabbis have to deal with when these questions do arise.

There is a discussion of a woman whose husband went abroad and was not heard from for over a year, and she remarried, and then the first husband appeared.

The texts discuss mamzerim, Netunim, Amonites, Edomites, Egyptians, slaves and converts and the results of marrying any of them.

Some of the most common questions follow: Who can a mamzer or a mamzeret marry?

A lady whose husband died and she married his brother without waiting three months and she gave birth seven months hence, who is the father?

A woman has a reputation for not being faithful to her husband and she becomes pregnant; is the child considered legitimate?

A Gentile had relations with his mother and she gave birth to a child who later converted; may he marry a Jewish girl?

What if a pregnant woman says the child she is carrying is the child of mamzer?

What if a pregnant woman who makes such a statement is not mentally competent?

When is a betrothed woman believed when she says that the child she is carrying is from her fiance? What if her fiance denies being the father? What if it can be shown that she also had relations with other men?

What if a person declares that he is a mamzer? May he marry a mamzeret?

What are some of the halachot dealing with foundlings, that is a newly born child found in the street? Was the baby cast into the street to die, or to be discovered and to be raised by the finder? Was the baby dressed nicely, was the baby properly cleaned? Does the baby have an amulet attached to him? Is the baby found in the city or on a country road, in the market place or in area not frequented by too many people? Was the baby found in a tree or other high place to protect it from animals? Was the baby found in a semi-public place like a synagogue? Is the time when the baby was found a time of famine in the country so that the mother was seeking a safe home for the baby where there would be food? What if a woman appears later on and says the baby that you found in the woods is her baby? Or a man appears and says I placed the baby there and I am the father? What if a foundling is found in a community where the majority of inhabitants are Gentiles? How does that affect the baby found by a Jew? What if the majority of the inhabitants are Jewish, how does that affect the baby? What if this child later married a Jewish woman, does she need a divorce (get) from him? Are there ways for the foundling to become a full member of the Jewish people? What if the person himself or an adult immersed the child in a mikveh for the intent of his being Jewish? What if the majority of the inhabitants where the baby was found are Gentiles, and the baby was not immersed in a mikveh, can he be fed traife foods? What if he lost an object in a community where the majority are Jews, must the person who finds the object return it to the loser like he would for any other Jew? What if he is buried under a mound of earth, may the earth be moved to save him on Shabbat as it would for a Jew? What is his status in a Beit Din in those instances where oaths have to be taken by the Jewish parties? Is he treated like a Jewish litigant regarding who has the burden of proof in presenting the case?

Several babies are in the nursery of a maternity hospital and the babies are from a wife of a Kohen, a wife of a Levite, a wife of an Israelite, and one is a child from a mamzer. Under what circumstances is the midwife believed to point out which baby belongs to which mother?

There is some discussion in the Shulhan Aruch regarding the status of a person whose lineage is not certain, is there something that can be done? What if an unrelated person says he knows which baby is which and he later recants his testimony?

When any of the problems arise regarding marriage among some of the foregoing classes of people within themselves or with a Jewish person, what should be done?

What about those persons who are designated as maid servants or slaves in halacha, what about their status in getting married?

Under what circumstances, if any are some acts of betrothal done by them valid?

Rama raises the question of the Karaites, whether they can intermarry with Jews. He also raises the question of anusim and when they can be married to Jews.

As can be seen from the foregoing, there are circumstances in which profound questions may arise in a proposed marriage. As I stated before, a competent Rabbinic scholar can often by himself or in consultation with other Rabbinic scholars find a way for the marriage to proceed. But we should be aware that there are in some situations difficult halachic questions to the proposed marriage. I have pointed out these problems that are unusual so that if you know someone who faces these problems seek out a major Rabbinic authority who will try to help out.

Rabbi Emanuel Quint is the Dean of The Jerusalem Institute of Jewish Law.

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