Who Can Say Who Is A Jew?

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The recent announcement by R. Avi Weiss that the Israel Chief Rabbinate is no longer accepting his validations of personal status of immigrants raises a crucial question: Why should anyone need their Jewish status validated? Why don’t we accept someone’s word that he is Jewish? The Jewish media is incorrectly reporting this issue and the complex answer to our question will explain what they have gotten wrong.

The key is splitting this issue into two related subjects.

I. Religious Identity

The Gemara (Yevamos 46b) states that someone who comes to a community and says he is a convert is not accepted as a Jew unless he brings proof of his status. What if someone comes and says that he is Jewish? Rabbenu Tam (quoted in Tosafos, ibid., 47a sv. be-muchzak) states that we believe him because most people who say they are Jewish are in fact Jews. Therefore, Rabbenu Tam continues, the Gemara is discussing someone who has established himself as a gentile. In order to change that presumption he must bring proof. But someone who comes in out of the blue and says that he is a convert is believed because (migo) he could have said that he is Jewish and would have been believed.

However, Rambam (Mishneh Torah, Hlikhos Issurei Bi’ah 13:10) says that this only applies in Israel where most people are Jewish. By implication, he seems to say that in the Diaspora we cannot accept someone who says he is Jewish so the migo no longer applies. Therefore, we cannot automatically accept a convert’s claim without testimony. The Ritva (Yevamos 47a sv. bein) says that, absent a presumption to the contrary, we believe someone who claims to be Jewish or to be a convert because the truth will eventually come out (milsa de-avida le-igluyei). I assume he means that in a world in which most men are uncircumcised, a gentile pretending to be a Jew will eventually be discovered, either at the mikvah or when he gets married. (It is not clear why, according to the Ritva, we accept a woman’s unsupported claim that she is Jewish.)

The upshot is that, according to Rabbenu Tam, someone in the Diaspora who says he is Jewish should be believed without any testimony. According to Rambam he should not. It is not clear what Ritva would say in this world in which Jewish identity is so confused that people who are halakhically gentile are raised as Jews.

The Shulchan Arukh (Yoreh De’ah 268:10) follows the Rambam. However, the Shakh (ad loc., 21) quotes the Bach who says that common practice follows Rabbenu Tam. The Shakh also suggests that perhaps the Rambam really agrees and was only strict for a convert’s marriage.

However, there might still be an underlying assumption that we accept these claims when the person acts like a Jew. If not, perhaps he undermines his claims with his actions. For example, if he does not observe the commandments does he create a presumption that he is not Jewish? Two former chief rabbis of Israel diagreed about this. R. Mordechai Eliyahu (Reponsa Ma’amar Mordechai, vol. 2, Orach Chaim no. 32) points out that Rashi (Yevamos 46a sv. yakhol) writes that if we accept someone’s claim that he is a convert then we do not require him to undergo pseudo-circumcision (hatafas dam bris) and immersion in a mikvah. Why, R. Eliyahu asks, doesn’t Rashi include acceptance of the commandments in his list of what we demand of someone (re-)converting? He explains that, according to Rashi, the entire discussion of the Gemara revolves around someone who observes the commandments. If not, we certainly do not accept his claims. (Although he allows that Jews from the FSU are different.)

R. Avraham Shapira (“Yichus Olah Chadashah Le-Tzorekh Nisu’eha” in Techumin, no. 15, pp. 265-267) states that all this only applies where all Jews are observant. In such a time and place, someone who is not observant is not believed. However, this is only a matter of acting like other Jews. When it is common for Jews to be non-observant, lack of observance does not undermine a person’s credibility about Jewish identity.

II. Personal Status

An additional concern is personal status. When we believe someone that he is Jewish, do we also accept that he may marry into the Jewish community? For example, he could be a mamzer, who may not marry a regular Jew, or a kohen, who may not marry a convert or divorcee. The Gemara (Kiddushin 76b) states that all families have a presumption of acceptability (kol mishpachos kesheiros). Ostensibly, that means that anyone claiming regular status is accepted as such.

However, the Tur (Even Ha-Ezer 2) quotes the Ramah who holds that this rule only applies to families that are known to us. When someone comes from a distant, unknown family, he must prove his personal status. Even though we accept him as Jewish, we cannot let him marry another Jew until he proves he is not a mamzer. The Beis Shmuel (Even Ha-Ezer 2:3) follows this Ramah. However, the Shakh (cited above) rules leniently, that everyone is presumed permissible to marry. Later authorities split on this issue. The Ba’er Heitev (ad loc., 4) quotes the Maharit and Beis Hillel who follow the Beis Shmuel while the Pischei Teshuvah (ad loc., 2) quotes the Sha’ar Ha-Melekh who follows the Shakh. R. Shlomo Kluger (Ha-Alef Lekha Shlomo, EH 15) says the common practice is to be lenient while the Arukh Ha-Shulchan (ad loc., 13) rules strictly regarding individuals (he holds that the presumption of “kosher” status only applies to families and not to individuals). The Otzar Ha-Poskim (ad loc., 4) contains a long summary of the different rulings on the subject. Significantly, the Otzar Ha-Poskim quotes the Beis Hillel as saying that there was an enactment of Lithuanian rabbis requiring proof of lineage before officiating at a wedding.

There is a further question whether this presumption of validity applies to personal status for marrying a kohen. The Tur (Even Ha-Ezer 2) quotes Rabbenu Tam as saying that presumption of “kosher” status does not apply to a kohen. The Bach understands this as meaning that an unknown kohen who presents himself without proof of his status cannot serve in the Temple in a priestly function. However, the Beis Yosef understands Rabbenu Tam as referring to marital status. A kohen may not marry an unknown woman on the basis of merely her unsupported word that he is permitted to marry her. Later authorities disagree about this in practice. The Arukh Ha-Shulchan (ad loc., 12-13) believes we must be strict about a kohen while R. Shlomo Kluger (ibid.) and R. Avraham Shapira (ibid.) rule leniently.

III. Who Can Say?

Returning to the controversy surrounding R. Avi Weiss, we find that someone who claims to be Jewish and is observant should be believed. If he is not observant (I am using “he” as neutral, to refer to both men and women), then according to R. Avraham Shapira he should still be believed but according to R. Mordechai Eliyahu he must prove his Jewishness. When someone who is believed about his Jewish status comes to marry, according to the Shakh he may marry any regular Jew and according to the Beis Shmuel he must prove his status before marrying. According to the Arukh Ha-Shulchan, he (or rather she) must also prove his status before marrying someone with a kohen status, although others disagree.

In other words, there is a debate about whether we accept someone’s word about his Jewish and personal status. Apparently, the Israeli Chief Rabbinate is strict and requires testimony even about Jewish status. However, when it comes to a woman’s status as eligible to marry a kohen, many would argue that proof is halakhically required.

Therefore, the acceptability of a rabbi to the Chief Rabbinate is not just about his testimony regarding who is Jewish. It is also, perhaps primarily, about his testimony regarding who is a kohen, mamzer, divorcee, chalal, etc. This is not the place to discuss the expertise or track records of individual rabbis on these issues. However, the evaluation of one’s qualifications must clearly involve more than whether he can adequately determine if someone is Jewish. Testifying about marital status not only requires more expertise but sometimes involves difficult halakhic interpretations. The Rabbanut’s rejection of someone’s testimony could mean that they reject him personally. But it could mean also (or instead) that they don’t trust his interpretations and applications of Jewish law on marital status, particularly regarding a kohen.

About Gil Student

Rabbi Gil Student is the Publisher and Editor-in-Chief of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student serves on the Executive Committee of the Rabbinical Council of America and as Director of the Halacha Commission of the Rabbinical Alliance of America. He also serves on the Editorial Boards of Jewish Action magazine, the Journal of Halacha and Contemporary Society and the Achieve Journal of Behavioral Health, Religion & Community, as well as the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

2 comments

  1. Sharon Fischman

    Can a woman serve as a witness in this capacity (i.e. personal status and religious identity)?

  2. MiMedinat HaYam

    1. The Rabbanut historically (I know specifically of the 1950s, but I understand this goes back probably to the 20s when the Rabbanut was first set up) has always required proof of Jewishness and proof of never having been married. Not just for cohanim marriages. (Eshet ish issues?)

    2. Common practice today is to be more “lenient” regarding a cohen marrying a divorcee and strict regarding Jewishness altogether, unlike what you seem to say in the post.

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