A Conceptual Understanding of Who is a Ger– Convert: A Matter of Dispute
Guest post by R. Michael J. Broyde
Rabbi Michael J. Broyde is a Professor of Law at Emory University School of Law, was the Founding Rabbi of the Young Israel in Atlanta, and is a Dayan in the Beth Din of America. He gives an Even Haezer shiur four times a week as part of a new dayanut kollel in Atlanta. He thanks the four wonderful and learned kollel members, Rabbi Avi Shlomo, Rabbi Sender Lustig, Rabbi Ira Bedzow and Rabbi Moshe Goldfeder for all they have taught him.
One of the wonderful aspects of American Orthodoxy is the presence of so many righteous converts – more than any other generation in recent memory — we are seeing in the United States. People are joining the Orthodox Jewish community out of love of God, Torah and mitzvot and are professing full and complete fidelity to halacha as part of the process of becoming Jewish. Of course, the thrust of the Torah and halacha is that we ought not make distinctions between converts and born Jews – but yet, there are occasions where Jewish law calls for special care and kindness to gerim and Jewish law restricts a female ger from marrying a preist (kohen).
This short note discusses a small conceptual detail in this area of Jewish law by asking “who is the ger that Jewish law considers worthy of these special protections and occasional restrictions?” Is it only one who converts, or is it the children of a convert also? This note points out that, in fact, this is a matter in dispute.
In fact, there is a fundamental dispute between rishonim about the status of “second generation” (children of) converts. It also goes to the heart of two different conceptual ways to think about the place of children of converts the in the Jewish community.
Rambam maintains, as is the simple understanding of the Talmudic sources, that a ger is one who actually converted to Judaism, and so the status of a ger is limited to the one who actually converted to Judaism. Everyone one else is an Israelite. If one did not actually convert, one cannot by definition be a convert and thus one cannot be considered a ‘ger’ for matters of halacha if one’s parents both converted before conception.
Tosafot understands the status of a ger in a fundamentally different way. Tosafot understands that converts and their progeny form almost a community of gerim, which can be separate and distinct from the community of Priests, Levites and Israelite and is somewhat like a “tribe,” made up of a Jewish people without native born Jewish ancestors or even without a native Jewish father. (Israelites are Jews of natural Jewish descent.)
As we will see, the clearest place this dispute arises in is very theoretical – may the child of a converted man and a Israelite woman marry a mamzer (as a convert may) or not.
III. Who is a Ger: Only the Convert or his Children, too
Consider the following exchange of ideas between the Tur and the <>Shulchan Aruch in Even Haezer. Shulchan Aruch EH 4:23 and EH 8:3 state:
גר שנשא בת ישראל, או ישראל שנשא גיורת, הולד ישראל לכל דבר ואסור בממזרת.
A convert who marries a [born] Jewess or a [born] Jew who marries a convert, the child is an Israelite for all matters and may not marry a mamzer.
This stands in direct contrast to the formulation found in the Tur EH 8 which states simply:
כהנים לוים וישראלים מותרים זה בזה והולד הולך אחר הזכר בן הכהן כהן בן הלוי לוי בן הישראל ישראל ישראל וחללי גרים וחרורי מותרין זה בזה וגר ומשוחרר שנשא לויה או ישראלית או חללה הולד הולך גם כן אחר הזכר לא שנא גר שנשא ישראלית או ישראל שנשא גיורת.
Priests, Levites and Israelites can marry each other and the child follows the [tribal] identification of the father: the child of a priest is a priest and the child of a Levite, is a Levite and the child of a Israelite is a Israelite. An Israelite, a challal, a convert and a freed slave can marry each other, and a convert or a freed slave who marries a Levite or Israelite woman or a chalalah, then the child follows the status of the man – it makes no difference whether the convert marries the Israelite woman or the Israelite man marries the convert.
The clear implication of the Tur is that the child of a converted man and an Israelite woman is a ger and not an Israelite, whereas the Shulchan Aruch codifies the exact opposite rule. Chelkat Mechokek (4:23), Bet Shmuel (4:37 and 8:2), Avnei Miluim (4:15) and Aruch Hashulchan (8:2) all note this dispute and are somewhat uncertain how exactly to resolve it (although it is almost never relevant, as we have almost no identified mamzerim who are looking to marry converts). This Tur is consistent with the rule that whenever a valid marriage takes place, and no sin occurs, the child follows the status of the father – if being a ger is a status, rather than a “fact” of being a convert, whereas Shulchan Aruch is really quoting almost verbatim from the Rambam. (See Atzei Arazim a quoted in Otzar Haposkim 8:3.)
Ran in his commentary on Kidushin (30b Rif pages) states this point directly:
וכתב הרמב”ם ז”ל בפרק ט”ו מהלכות אסורי ביאה… אבל גר שנשא בת ישראל הולד ישראל גמור ואסור בממזרת ולא ידעתי מנין לו דאע”ג דעובד כוכבים הבא על בת ישראל הולד ישראל גמור ואסור בממזרת התם היינו טעמא משום לפי שאי אפשר לו להתייחס אחר אביו דלמשפחותם לבית אבותם בישראל הוא דכתיב אבל זה שאביו ישראל גמור למה לא יתיחס אחר אביו ויהא נדון כגר דמותר בממזרת והרי כאן יש [דף סו ב] קידושין ואין עבירה והולד הולך אחר הזכר וצ”ע
Rambam states [Issurai Biah 15] that… “but a convert who marries a Jewess, the child is a Jew and prohibited to a mamzer”. I do not know where he derived this, since a Gentile who fathers a child with a Jewess the child is Jewish and prohibited to a mamzer, their the reason is that the child cannot follow his father’s status since the verse “by their families, the house of their fathers” is limited to a Jewish man, but in the case of a male convert, the man is certainly Jewish, why shouldn’t the child follow the status of his father and be considered a ger and permitted to a female mamzer, since there is a valid marriage and no sin, the child ought to follow the father’s status. The question on the Rambam remains.
IV. Some Thoughts
What I have not noticed is a clear conceptual explanation of what this dispute is really about and how it relates to the other important dispute in this area of halacha – whether the child of two converts may marry a kohein. In this case, the Shulchan Aruch is uncertain. Shulchan Aruch 7:21 states:
גר שנשא גיורת, וילדה בת, לא תנשא לכתחלה לכהן אפי’ בת בתה עד כמה דורות, אף על פי שהורתה ולידתה בקדושה. ואם נשאת לכהן, לא תצא.
A convert who marries a convert, and give birth to a daughter, she should not ab initio marry a kohen, even after the passage of many generations [in which all the parents where decedents of only converts] even though her conception and birth where to Jews. But, if she marries a kohen, she should not get divorce.
Again, all the commentaries note that there is a fundamental dispute here, maybe even grounded directly in a Talmudic dispute. As the Rosh (Kiddushin 4:15) notes:
אמר רב המנונא משמיה דעולא הלכה כר’ יוסי וכן אמר רבה בר בר חנה הלכה כר’ יוסי ומיום שחרב בית המקדש נהגו כהנים סלסול בעצמן כראב”י נשא אין מוציאין אותה ממנו כר’ יוסי אמר רב נחמן אמר לי הונא בא להמלך מורים לו כר’ אליעזר בן יעקב נשא אין מוציאין ממנו כר’ יוסי:
Rabbi Hamnunah notes in the name of Ulah that the halacha follows Rav Yosi [that the daughter of two converts may marry a kohen] and such is also recited by Rava bar bar Channah that the halacha follows Rav Yosi, but from the time of the destruction of the Temple, the priests customized themselves to follow the view of Rabbi Eliezer ben Yaakov [who prohibits these relationships]. If they marry, no divorce is needed, in accordance with Rav Yosi’s rule. Rav Nachman states that Huna rules that when one comes to rule, one follows the rule of Rabbi Eliezer ben Yaakov and prohibits this relationship, but one does not compel divorce, like Rav Yosi.
The Rosh quotes two different versions of the rule in these two sentences. One seems to adopt that view that really the child of two converts is not ger and the second is that really such a child is a ger, but we cannot compel divorce out of difference to R. Yosi’s view. These two views both agree that a kohein should not marry the child of two converts as an ideal – but one view maintains that the halacha permits this marriage and custom does not, and the second view is that halacha prohibits this view, but since R. Yosi permits such, we do not actually compel a divorce when this rule is violated out of deference to the view of R. Yosi. But we would recommend such a divorce. In this view, lo tatzay means only that a Jewish law court cannot force a divorce, whereas in the first view it means “divorce is not recommended.” For more on this, see Pitchei Teshuva 4:3.
What is unclear is what is the normative halacha – Rambam seems to rule that the daughter of two converts really is not a ger, which stands in direct contrast to the observation of many, including, for example, the simple statement of the Pri Megadim (OC Eshel Avraham 156:2) who notes directly:
ומסתברא דגר מקרי אף הורתו ולידתו בקדושה, שנתגיירו אביו ואמו, הואיל ואין לו קרובים בישראל.
It is logical that a person is considered a ger even if she was both conceived and born after her parents converted to Judaism, since the child has no Jewish relatives.
This is in fact the view of many Jewish law authorities other than Rambam, such as the Ran and Tosafot who assign the status of a ger to anyone who does not have Jewish born parents, or maybe even a Jewish born father.
Logically we can explain Rambam’s side of this in terms of a ger being a special type of personal status that is not inherited: it is a personal status, but it derives only from from the circumstances of one’s own life (horaso v’leidaso shelo bikedusha) and canot be passed on to the next generation, since that fact is not true for the next generation. Maybe a good analogy for Rambam is to a petzua daka, who also can marry a mamzer. His status derives only from his circumstances and is not inherited or passed on by inheritance.
Tosafot, on the other hand, understand one’s status as ager to be exactly like one’s status as a Levite or Israelite – it is passed on through the father and is not grounded in an experiational data, but in a Jewish law status determination of where one comes from. A ger is a Jew whose ancestors did not stand at Mt. Sinai with Moses. That can only be based on.[This same dispute is, I think, what lies behind both sides of a complex teshuva of the Noda Beyehuda as to whether a child of a woman who converts while pregnant (with the child in utero) is considered a born Jew or a convert; see Dagul ReRevava 268 and Pitchei Teshuva 268:6. One view says that this child cannot be a convert, since she was born to a Jewish mother – and others do not see that as an obstacle to being considered a ger.]
How is a ger defined? Rambam and Shulchan Aruch are of the view that the status of a ger is as a fact and only one who actually converted is to considered a ger. Others are of the view that a ger is a status like a Kohein, Levi or Israelite – one is a ger if one’s parents are gerim, and maybe even if just one’s father is a ger. Obviously, many details of Jewish law hinge on this dispute and our practice remains somewhat unclear, although lechatchela we seem to be strict for both views, at least for male converts. It is worth noting that this resolution directs not only the resolution of certain family law matters, but it has vast implications for the applications of Jewish laws specific mandates to especially be kind to and nice with a ger – commandments that resonate more broadly throughout the daily life of a Jew.