Daf Ditty Yevamot 8: Levirate vs Sororate

1
Against this proof, Rav Aḥa of Difti said to Ravina: Since the halakha of all women with whom
relations are forbidden can be juxtaposed with the case of a brother’s wife and thereby
rendered permitted in levirate marriage, and these cases can equally be juxtaposed with the
halakha of a wife’s sister, which would mean that they are forbidden, what did you see that you
juxtaposed them with a wife’s sister? Juxtapose them instead with a brother’s wife. If so, the
opposite could be derived from the phrase “with her,” i.e., not that all women with whom relations
are forbidden are prohibited like a wife’s sister, but that all these women are permitted in levirate
marriage, even a wife’s sister.

The Gemara answers: If you wish, say that if one must decide between two possible ways of
understanding juxtaposed cases, one of which leads to a lenient ruling and the other to a stringent
ruling, we juxtapose to reach the stringent ruling, not the leniency. If you wish, say instead:
Here, there are two prohibitions, a brother’s wife, and a wife’s sister, and there, in the case of
all other women with whom relations are forbidden, there are also two prohibitions. And one
may derive a case involving two prohibitions from another case that involves two prohibitions.
However, here, in the case of a regular levirate marriage that does not involve any other forbidden
relation, there is only one prohibition proscribing a brother’s wife, and one may not derive a
case involving two prohibitions from a case that involves only one.

2
§ Rava said that this entire halakha must be understood differently. With regard to a forbidden
relation herself, it is not necessary for a verse to teach that she cannot enter into levirate marriage,
as a positive mitzva does not override a prohibition that includes karet. Rather, the verse “with
her” is necessary to prohibit a rival wife, as a rival wife is not prohibited to the yavam as a
forbidden relation.

3
4
The Gemara asks: And does the tanna in fact maintain with regard to a forbidden relation that it
is not necessary for a verse to teach that she is prohibited in levirate marriage? But isn’t it taught
in that same baraita: I have derived nothing other than that this woman is exempt from levirate
marriage. From where is it inferred that the same applies to her rival wife? This shows that the
case of a forbidden relation does require a special inference from a verse.

5
The Gemara answers: It is due to her rival wife, i.e., the baraita does not mean that the halakha
of women with whom relations are forbidden is derived from this verse; rather, this case is
mentioned only to introduce the case of a rival wife.

The Gemara raises another difficulty: But it is taught in the baraita: I have derived nothing other
than that these sisters are exempt from levirate marriage, which again suggests that the derivation
from the verse applies to all of them.

This is similarly rejected: This is also stated due to their rival wives.

6
7
The Gemara suggests: Come and hear a different baraita that contradicts Rava’s statement: Rabbi
Yehuda HaNasi says that there is a different proof that a forbidden relation and her rival wife are
prohibited in levirate marriage. The Torah says:

‫ וֵּמת ַאַחד‬,‫ֵיְשׁבוּ ַאִחים ַיְחָדּו‬-‫ה ִכּי‬ 5 If brethren dwell together, and one of them die, and have no
-‫ִתְהֶיה ֵאֶשׁת‬-‫ל ֹא‬--‫לוֹ‬-‫ֵמֶהם וֵּבן ֵאין‬ child, the wife of the dead shall not be married abroad unto one
‫ ְיָבָמהּ ָיב ֹא‬:‫ ְלִאישׁ ָזר‬,‫ַהֵמּת ַהחוָּצה‬ not of his kin; her husband's brother shall go in unto her, and
.‫ וְּלָקָחהּ לוֹ ְלִאָשּׁה ְו ִיְבָּמהּ‬,‫ָﬠֶליָה‬ take her to him to wife, and perform the duty of a husband's
brother unto her.
Deut 25:5

“He will have intercourse with her and take her to him to be his wife and consummate the
levirate marriage with her” . Since the verse does not say simply: Have intercourse, but: “Have
intercourse with her,” this indicates that he takes this woman specifically, not a different woman
who is forbidden. Furthermore, the verse does not simply state: And consummate the levirate
marriage, but: “And consummate the levirate marriage with her.” These additions serve to
prohibit rival wives and women with whom relations are forbidden.

8
Summary

Sisters as Rival Wives1

The Gemara continues to unravel the halacha regarding yibum in the case of the sister of the wife
of a deceased husband. In an effort to better understand this halacha, the rabbis debate the principle
of juxtapositioning (among others). They wonder about the timing of events and whether there
might exist a window of time in which yibum might be permitted, though it would otherwise be
forbidden. Further, they wonder about rival wives in this context; arguments are shared on both
sides of this debate. The rabbis debate whether or not a positive mitzvah overrides a prohibition
that would incur karet. Rival wives may or may not be permitted to the yibum.

1
http://dafyomibeginner.blogspot.com/2014/10/

9
Forbidden relatives are a large part of determining how yibum operates. The rabbis suggest that
as long as she is alive, a woman's sister is not permitted to her husband's. However, once she dies,
her sister is permitted. More controversial today, though - if a woman is divorced, her sister is still
forbidden to her ex-husband. Why would the rabbis protect this relationship between sisters so
carefully?

We return to the verse discussed intermittently throughout this Masechet, Leviticus 18:18: "You
shall not take a woman to her sister, to be a rival to her, to uncover her nakedness, with her in her
lifetime." The rabbis agree that "with her" is superfluous and must be explained. The consensus
is that these words refer to the yibum having intercourse with her.

Amud (b) teaches that a yevama can be married without her consent, for this verse proves that
intercourse will be part of the act of marriage, regardless of her consent. After they are married,
the yibum is allowed to divorce her and remarry her if he wishes. This is very different from the
ordinary standards of marriage. Normally women are allowed to refuse a marriage
arrangement. Further, in yibum, generally women are allowed to perform chalitza to refuse her
husband's brother. She is not required to marry and then receive a get.

I understand that I am missing many pieces of this puzzle thus far. However, the larger picture is
becoming more apparent: the rabbis are sketching out our rules of engagement. Those rules have
to change according to circumstance. Unfortunately, our rules as they have been presented are
sometimes at odds with each other. Thus the rabbis have to talk themselves through the potential
meanings of each contradiction. We notice again our rabbis determining the fate of women's lives
as creatures who are equal parts property and human being.

People's lives are at stake. I continually wonder whether or not the rabbis were aware of the power
inherent in their words. One halachic decision could direct the lives of hundreds of thousands of
people over dozens of generations. Such responsibility... We know that our rabbis took themselves
very seriously. But did they take their work seriously - beyond the interpretation of G-d's words
toward facilitation of lives led with dignity?

Rav Avrohom Adler writes:2

The Gemora asks: The comparison (where the yevamah was initially prohibited to the yavam with
the prohibition of being his brother’s wife and then there is an additional prohibition of his wife’s
sister) might well be justified where the deceased brother married (his wife first) and the surviving
brother married (his brother's wife's sister) afterwards, for in this case, since the prohibition of
brother's wife was removed (when the yevamah falls for yibum), that of the wife's sister (which
comes about later) is also removed; but where the surviving brother had married (first) and
subsequently the deceased brother had married (her sister), the prohibition of his wife's sister was
surely in effect first (and afterwards the prohibition of his brother’s wife was added; there is no
2
http://dafnotes.com/wp-content/uploads/2015/08/Yevamos_8.pdf

10
logic to remove the prohibition of his wife’s sister when the brother’s wife prohibition is
removed)!?

Furthermore, even where the deceased brother married (his wife first and the surviving brother
married his brother's wife's sister afterwards), the comparison would be justified in the case where
the deceased brother had married and died, and the surviving brother had married afterwards so
that (the yevamah) was eligible in the interval (and according to Ulla, it is logical to say that once
she is permitted to him, she remains permitted – even after the yavam marries her sister, which
adds a prohibition of his wife’s sister); where, however, the deceased had married, and before he
died, his surviving brother married his wife's sister, where his widow was never for a moment fit
for his brother (Ulla’s principle does not apply, for the woman was already prohibited to him as
his wife’s sister before she fell to him for yibum)!? Doesn’t Ulla admit that if the metzora
experienced a discharge on the night preceding the eighth day of his purification, he must not insert
his hands into the Temple Courtyard on account of (the application of blood on) his thumbs,
because at the time he was fit to bring the sacrifice (of the purified metzora) he was not free from
tumah?

[Ulla stated his principle only in a case where the metzora experienced a discharge after he was
already fit to insert his hands into the Temple Courtyard. The same should hold true by yibum as
well!?]

The Gemora concludes: ‘Aleha’ is needed for a case where the deceased brother married (his wife
first) and the surviving brother married (his brother's wife's sister) afterwards (for in this case,
since the prohibition of brother's wife was removed when the yevamah falls for yibum, that of the
wife's sister, which comes about later, is also removed).

The Gemora offers another reason why the verse ‘aleha’ is required to teach us that he may not
perform a yibum on his wife’s sister. Otherwise, it might have been deduced (that a wife’s sister
is permitted to be taken in yibum) by means of Rabbi Yonah's analogy. For Rabbi Yonah and
others say, Rav Huna’s son of Rabbi Yehoshua said: Scripture stated: For if anyone shall do any
of these abominations, he shall be cut off. All forbidden relatives were compared to a brother's
wife; so in this case also it might have been said, just as a brother's wife is permitted, so also are
all other forbidden relatives permitted; aleha teaches us that the wife’s sister is prohibited.

Rav Acha Midifti asked to Ravina: We could compare all forbidden relatives to a brother’s wife,
and we could compare them to a wife’s sister. Why do we choose to compare them to a wife’s
sister, and they may not be taken in yibum? Let us compare them to a brother’s wife, and they may
be taken in yibum!? Ravina answers: When there is a choice, we always compare in manner that
will lead to a stringency, not a leniency. Alternatively, we can answer that a yevamah, who is also
a wife’s sister has two prohibitions; namely, a brother’s wife and a wife’s sister. The other relatives
also have two prohibitions. A brother’s wife has only one prohibition. It is logical to compare the
cases with two prohibitions to the case with two prohibitions and therefore, they cannot be taken
in yibum.

Rava said: We do not need a verse to forbid a relative for yibum because a positive commandment
may not override a negative prohibition that carries the penalty of kares; the verse is necessary to

11
teach us that one may not perform yibum with the co-wife of a forbidden relative. The Gemora
asks: And in the case of a forbidden relative, no Scriptural text is required (to prohibit her from
yibum)? Surely it was taught in a braisa: So far (from ‘aleha’) we are in a position to know the law
concerning herself (the wife’s sister)!?

The Gemora answers: This was stated on account of her co-wife. The Gemora asks: Was it not
taught in that braisa, however: Now, we know the law concerning themselves (the other forbidden
women)? The Gemora answers: This was stated on account of their co-wives. The Gemora asks
from the following braisa: Rebbe said: Instead of And take, Scripture stated: And take her, and
instead of And perform the duty of a husband's brother, Scripture stated: And perform the duty of
a husband's brother unto her. This is in order to prohibit the yibum of forbidden relatives and their
co-wives.

The Gemora answers: Say that he meant that the verse is coming to forbid the co-wives of the
forbidden relatives. The Gemora asks: But two texts, surely, were mentioned? Wasn’t one for the
forbidden relative and the other for her co-wife? The Gemora answers: No; both were for the co-
wife, but one indicates prohibition of a co-wife where the mitzvah (of yibum) is applicable, and
the other indicates permission to marry the co-wife where the mitzvah (of yibum) is not applicable.
What is the reason? It is because instead of And perform the duty of a husband's brother, Scripture
stated: And perform the duty of a husband's brother unto her. This indicates that only where yibum
is applicable is a co-wife forbidden, but where yibum is not applicable, a co-wife is permitted.

Rav Ashi said: This may also be inferred from our Mishna where it was stated: Fifteen women
exempt their co-wives, but it was not stated: are exempt and exempt their co-wives. This indeed
proves it. The Gemora asks: If a verse is not needed to forbid yibum with the forbidden relative
because there is a penalty of kares, a verse should not be necessary to forbid the co-wife either,
because she is also under the penalty of kares, and a positive commandment may not override a
negative prohibition that carries the penalty of kares? The Gemora concedes this point: Rav Acha
bar Bibi Mar said to Ravina: Rava meant that no verse is necessary to teach us that a co-wife of a
forbidden relative is forbidden in the case of yibum; a verse, however, is necessary to permit a co-
wife when she is outside the setting of the mitzvah of yibum.

What is the reason? Scripture writes ‘aleha.’ This indicates that only where ‘aleha’ (yibum) is
applicable is a co-wife forbidden, but where ‘aleha’ (yibum) is not applicable, a co-wife is
permitted. Rami bar Chama said to Rava: Might it not be suggested that the forbidden relative
herself should be permitted where the mitzvah of yibum is not applicable? Rava replied: Isn’t such
an argument contrary to the principle of a kal vachomer? Being forbidden where the mitzvah of
yibum is applicable, would she be permitted where the mitzvah of yibum is not applicable?

Rami bar Chama responded: The case of a co-wife could prove it, since she is forbidden where the
mitzvah of yibum is applicable and is permitted where the mitzvah of yibum is not applicable.
Rava answers: It is for your sake that Scripture states: ‘in her lifetime,’so long as she (the wife)
lives(hersister is forbidden). Rami bar Chama asked: But isn’t the expression ‘in her lifetime’
required for the exclusion (of the prohibition) after her death (in contrast to other forbidden
relatives based upon marriage)? Rava replied: This is deduced from the text: And a woman in
addition to her sister. Rami bar Chama continued to ask: If the deduction were only from the text,

12
‘And a woman in addition to her sister,’ it might have been said that if she (the wife) was divorced,
the sister would be permitted, therefore it was expressly stated: in her lifetime. So long as she is
alive, even though she has been divorced, her sister is not permitted.

The Gemora disagrees with this: But, Rav Huna bar Tachlifa said in the name of Rava that two
Scriptural texts are written (regarding one’s wife’s sister): it is written: You shall not take a woman
in addition to her sister, to make them rival wives (and the plural expression implies that both the
wife’s sister and her co-wife are forbidden), and it is also written: to uncover her nakedness, which
implies that only one is forbidden. How then are the two texts to be reconciled? Where the mitzvah
of yibum is applicable, both are forbidden; where the mitzvah of yibum is not applicable, she is
forbidden but her co-wife is permitted. The Gemora asks: Might not the deduction be reversed:
Where the mitzvah of yibum is applicable, she is forbidden, but her co-wife is permitted, but where
the mitzvah of yibum is not applicable, both are forbidden?

The Gemora answers: If so, ‘aleha’ should not have been stated. Rav Ashi said to Rav Kahana:
From where is it derived that the expression ‘aleha’ indicates prohibition? Is it not possible that it
implies permission, and that it is this that the Merciful One meant to imply: You shall not take a
woman in addition to her sister, to make them rival wives, neither herself nor her co-wife where
‘aleha’ (yibum) is not applicable, but where ‘aleha’ (yibum) is applicable, both are permitted!?
Rav Kahana replied: If so, how could the ‘uncovering of the nakedness’ of one be possible? If in
the case where the mitzvah of yibum is applicable, both are permitted; and if where the mitzvah of
yibum is not applicable, both are forbidden!

Rebbe said: Instead of And take, Scripture stated: And take her, and instead of And perform the
duty of a husband's brother, Scripture stated: And perform the duty of a husband's brother unto
her. This is in order to prohibit the yibum of forbidden relatives and their cowives. The Gemora
asks: Are, then, co-wives mentioned here at all? And, furthermore, the law of co-wives has been
derived from a different expression (litzror)? The Gemora answers: The expression litzror is
employed by Rebbe for Rabbi Shimon’s deduction. The Gemora asks: Where, however, is the co-
wife mentioned?

The Gemora answers: What he meant is this: If so, Scripture should have stated, And take; why
then did it state, And he shall take her? This is to indicate that wherever there are two to be taken,
he is having the choice of marrying whichever he prefers, both are permitted, but if not (if one is
a forbidden relative), both are forbidden. And perform the duty of a husband's brother unto her
indicates that where yibum is applicable, the co-wife is forbidden, where, however, yibum is not
applicable, the co-wife is permitted.

The Gemora asks: As to the Rabbis, to what do they apply the verse, And he shall take her? They
require it for the deduction of Rabbi Yosi bar Chanina. For Rabbi Yosi bar Chanina said: And he
shall take her teaches that he may divorce her with a letter of divorce and that he may remarry her.
And he shall perform the duty of a husband's brother unto her teaches us that even against her will,
he may perform yibum with her. The Gemora asks: And where does Rebbe learn these from? The
Gemora answers: The law of Rabbi Yosi bar Chanina is deduced from To a wife, and that the
marriage may take place against her will is deduced from Her husband's brother shall go in unto
her.

13
PERFORMING YIBUM AGAINST THE WILL OF THE WOMAN

Rav Mordechai Kornfeld writes:3

Our daf derives from the verse, "v'Yibmah" (Devarim 25:5), that one may perform Yibum against
the will of the woman. RASHI (DH Ba'al Korchah) explains that this means that even if the
brother marries her against her will, the marriage takes effect "with regard to Yerushah (inheriting
her possessions upon her death), Tum'ah (the allowance to bury her and become Tamei if he is a
Kohen), and with regard to all matters, she is his wife."

Why does Rashi specify that the verse means that the marriage done against her will takes effect
for all matters of Kinyanim (acquisitions)? Rashi should explain instead that it takes effect for all
of the laws of Ishus, marriage. The Gemara says merely that the Yavam fulfills the Mitzvah of
Yibum even though he did the act without her consent, and now he must give her a Get if she
wants to remarry; Chalitzah no longer suffices, since the act of Yibum was performed. Why does
Rashi describe this Halachah in terms of Kinyanim, and not in terms of fulfilling the Mitzvah of
Yibum? (HAGAHOS MAHARSHAM)

Rashi is bothered by a question. Why does the Gemara need the verse of "v'Yibmah" to teach that
the Mitzvah of Yibum is fulfilled against the will of the woman? No verse is necessary to teach
this law, because the verse that introduces the Mitzvah of Chalitzah states explicitly, "Im Lo
Yachpotz ha'Ish..." -- "If the man does not desire to marry his Yevamah..." (Devarim 25:7). The
verse clearly makes the fulfillment of the Mitzvah dependent upon the man's will; if he does not
want to perform Yibum, then they perform Chalitzah, and if he wants to perform Yibum, then they
perform Yibum regardless of what the woman wants. Why, then, is the verse of "v'Yibmah"
necessary to teach that he fulfills the Mitzvah against her will?

Rashi answers that one might have thought that although the Mitzvah of Yibum may be performed
against her will, such an act of involuntary Yibum affects only the laws of marriage but has no
bearing on matters of Kinyanim. Rashi explains that the Gemara finds a source ("v'Yibmah")
which proves that even with regard to Kinyanim, Yibum without the woman's consent is effective.

Steinzaltz (OBM) writes:4

As we have seen, the commandment of yibum (levirate marriage), allows the wife of a man who
dies without offspring to be married by one of his surviving brothers, negating the Biblical
prohibition forbidding a man from marrying his brother’s wife. What is the status of their

3
https://www.dafyomi.co.il/yevamos/insites/ye-dt-008.htm
4
https://www.ou.org/life/torah/masechet_yevamot_814/

14
relationship, once yibum has been performed? Are they still seen as connected because of the
original marriage to the deceased brother, or are they simply a married couple?

Our Daf quotes Rabbi Yossi bar Chanina, who understands the passage in Sefer (Book
of) Devarim (25:5) to mean that once the yavam takes her as his wife, all of the rules and
regulations of normal marriage apply to them.

Thus, should the couple choose to get divorced, rather than performing the halitzah ceremony, the
husband will divorce his wife with a get, a standard divorce document. Furthermore, should they
choose to do so, they can remarry after the divorce, without any concern that the original
prohibition of marrying one’s sister-in-law still exists.

Tosafot ask why the Gemara only searches for a source that will allow the yevam and yevamah to
remarry after a divorce, without expressing any concern about their ongoing sexual relationship
while they are married. Tosafot suggest that it is only the very first act of sexual relations that is
the fulfillment of the mitzvah of yibum; from then on their relationship is one of choice. Should
the Sages not search for a Biblical passage that clearly permits the marriage to continue after the
basic mitzvah is fulfilled?

Tosafot answer that it is an issue of common sense. There is no need to find a pasuk (verse) that
clearly permits this, since it would be illogical for the Torah to command someone to engage in
sexual relations once and then file for divorce. Another approach is suggested by the Netziv in
his Meromei Sadeh who argues that whenever we find that performing a mitzvah pushes aside a
prohibition, as long as the person remains involved in that mitzvah he can add to it, even beyond
the basic obligation.

Rebbe does not learn the source of ‫ צרה‬from the word ‫ עליה‬as we saw in the Baraisa earlier (3b).5
Rather, in the Baraisa on our daf Rebbe learns that when a brother is faced with the choice of
marrying his brother’s wives, of which he may only take one, this is only allowed when he can
choose either woman. This is indicated in the verse ‫ ולקחה\ולקח‬-take her. This teaches that if one
of them is an ‫ ערוה‬to him, and she is therefore prohibited, he may then not marry the other wife,
either. This is the source in the Baraisa which Rebbe uses to teach that a ‫ צרה‬of an ‫ ערוה‬is prohibited.
Tosafos (‫“ היכא כל ה) ד‬asks that using this approach, the mitzvah of yibum should not be applicable
to any situation where one of the co-wives is not legally eligible to be married. The Baraisa deals
with a case where one of the women is an ‫ ערוה‬to the surviving brother. However, let us consider
where the woman is ineligible due to an ‫ איסור עשה‬,for example, a widow to a Kohen Gadol. The
Gemara later ) 20 b) rules that this woman cannot be taken for yibum, but chalitza should be done.
Yet according to Rebbe, as soon as one woman cannot be taken, the whole law of yibum should
fall away. Tosafos also notes that according to the earlier Baraisa on 3b, the law of ‫ צרה‬is learned

5
https://www.dafdigest.org/masechtos/Yevamos%20008.pdf

15
from our associating the verses of yibum and those of ‫ )ערוה‬a wife’s sister), because both feature
the word ‫ עליה‬.Accordingly, we can understand why marrying a cowife would be liable for ‫ כרת‬,the
punishment for marrying any ‫ ערוה‬.However, according to Rebbe, the law of cowives is determined
within the verses of yibum itself. How would we know that this is a case which is liable for ‫? כרת‬
One of the answers of Tosafos is that chalitza is appropriate to the co-wife is because ‫ קידושי‬would
be effective if offered to the wife who is an ‫ עשה איסור‬.For example, if a Kohen Gadol betroths a
widow, although this is a violation of a positive commandment, the ‫ קידושי‬is valid. Therefore, the
co-wife of an ‫ עשה איסור‬wife does need chalitza because both wives are included in the realm of .‫ו‬

The pasuk therefore states: “In her lifetime,” to indicate that the prohibition is in force under all
conditions during the wife’s lifetime. R av Chaim Alaphandri1 posed the following query
regarding the prohibition against marrying one’s wife’s sister. The Gemara states that the
prohibition against marrying one’s wife’s sister applies only as long as one’s wife is still alive.
What will the halacha be if a man is married and his wife is inflicted with a wound that renders
her a teraifah. Do we say that the teraifah wound diminishes her “life,” since she will die within
the year and consequently if the man gives kiddushin to his wife’s sister the kiddushin is effective,
or perhaps as long as she is alive the prohibition remains in place and is not removed until she has
died. Rav Chaim does not reach a definitive conclusion on this matter. Later authorities point to a
Gemara in Niddah2 that has bearing on this matter. R’ Yirmiyah inquired about a woman who was
carrying a fetus that appeared like an animal and the fetus’s father accepted kiddushin on her
behalf. The significance of the question, explains the Gemara, is whether the betrother is permitted
to marry the fetus’s sister. Rashi’s comments to this Gemara indicate that a teraifah is considered
alive3 and as such it would be prohibited to marry her sister. Ramban4 , on the other hand,
disagrees with Rashi and maintains that if it was known with certainty that the fetus was not viable
it is considered as if it is not alive, and one would be permitted to marry the sister. Rav Tzvi Hirsh
Eisenstadt5 , the Pischei Teshuvah, rules, based on the comments of Rashi, that a woman who is
a teraifah is still considered to be alive and it is prohibited for her husband to marry her sister. On
the other hand, Rav Yosef Shaul Nathanson6 , the Shoel Umeishiv, writes that since a person with
a teraifah wound will not live there is no prohibition against marrying her sister. The consensus of
authorities7 concurs with the ruling of Pischei Teshuvah that as long as the wife is alive it is
prohibited to marry her sister, even if she is mortally wounded.

16
The verse from Vayikra 18:29 cited in today’s daf states that perpetrators of abominations will be
cut off from Hashem, ” ‫ ו ח‬. As we see from the following story, the Gedolei Yisroel were not only
exceedingly careful to avoid any personal transgression, but also fled before the possibility of an
issur kareis as if it were a raging fire. The Brisker Rav, zt”l, had just inspected a mikveh and after
due consideration declared it kosher for use. A certain person was present and blurted out to the
Rav “But Rebbi, isn’t that a crack over there? Perhaps water will seep out and the mikveh will be
prohibited, ‫ ?“ חלילה‬The Brisker Rav carefully examined the spot that the other man had pointed
out and saw that it was indeed slightly cracked. It was certainly possible that there might have been
some seepage, which would have rendered the mikveh unfit. As soon as the Brisker Rav saw that
he had nearly permitted that which is forbidden, he blanched and fainted dead away! Forty years
later, the Brisker Rav was one of the Gedolim of Yerushalayim. He miraculously escaped the
Nazis, built a yeshiva, and raised up a new generation of many students. Every major question
made its way to his desk; many visitors seeking solutions to their seemingly insolvable problems
found their way to him. One day, a stranger arrived, but he greeted the Rav as if he knew him. The
Brisker Rav asked, “Where do I know you from?” The man said his name, and mentioned that he
knew the Rav years earlier, in Brisk. Upon hearing this, the Brisker Rav lost consciousness. After
he came to, the Brisker Rov explained, “As soon as I heard your name, I remembered the mikveh
that was slightly cracked that I had mistakenly pronounced kosher for immersion. Although the
crack might not have leaked, if it had I would have permitted an issur kareis. Forty years might
have passed, but it was just as horrifying to me as if it had happened yesterday!”

The Arayos – Sister-in-Law

Rabbi Jack Abramowitz writes:6

You shall not marry a woman in addition to her sister, making them rivals…in her lifetime
(Leviticus 18:18)
Polygamy was permitted by the Torah, though it was later banned in most communities. Even
though polygamy was still allowed, a man was not permitted to marry his wife’s sister, as this
would be a source of bad blood. This particular prohibition remained in effect even if the couple
divorced (because having your sister marry your ex would still be pretty aggravating) but if the
wife died, the man could then marry her sister. (This mitzvah also prohibits extramarital relations
with a wife’s sister, not just marriage.)
This law applies to a wife’s full sister or to a half-sister on either side, born in or out of wedlock
or from a forbidden relationship. Rabbinically, if a man has an obligation of yibum (levirate
marriage) with his late brother’s widow, her sister becomes forbidden to him even if he performs
the chalitzah ceremony dissolving the bond. This is true even though he did not betroth her himself
but became “bound” to her through the death of his brother. (We’ll discuss yibum in Mitzvah #598
and chalitzah in Mitzvah #599, both in parshas Ki Seitzei.)
The general reasoning underlying all the arayos – a preventive measure regarding people of the
opposite sex with whom we are overly familiar – applies here as well. Additionally, there is the

6
https://outorah.org/p/5917/

17
aspect of not vexing the woman who is already married to the man by bringing her sister into the
relationship. Such a relationship has the potential for disaster written all over it.
The obvious question is how Yaakov, the patriarch Jacob, could marry two sisters, Rachel, and
Leah. We have a tradition that the Avos (forefathers) kept the Torah before it was given, but
marrying sisters is a clear violation of this injunction! There are many potential answers to this
conundrum; I’ll share just one of them here.
If the Avos kept the Torah, they did so voluntarily, as it had not yet been commanded. When
Yaakov proposed to Rachel, he made a commitment to marry her. Lavan (Laban) made a last-
minute switch for Rachel’s sister Leah. This placed Yaakov in a bit of a bind. Normally, he would
observe the Torah law not to marry sisters. However, he had given Rachel his word. Yaakov’s
desire to voluntarily keep mitzvos could not override his obligation to keep his commitment to
Rachel. (As you can see from the Biblical narrative, sharing a husband was indeed a source of
unneeded stress to both sisters.)
This mitzvah applies in all times and places. It is a topic in the Talmud in the tractates of Yevamos
(see, for example, 41a, 51b, 97a, et al.). It is codified in the Shulchan Aruch in Even Ha’Ezer 15.
This prohibition is #345 of the 365 negative mitzvos in the Rambam’s Sefer HaMitzvos and #131
of the 194 negative mitzvos that can be fulfilled today as listed in the Chofetz Chaim’s Sefer
HaMitzvos HaKatzar.

Sources:

Lev 18:18

RAMBAN

AND THOU SHALT NOT TAKE A WOMAN TO HER SISTER, TO BE A RIVAL TO HER,
TO UNCOVER HER NAKEDNESS, BESIDE THE OTHER IN HER LIFETIME. Here Scripture
explains the reason for the prohibition, stating that it is not proper for you to take a woman in
addition to her sister, to be a rival one to another, for it is fitting that they love one another and not
be rivals. He did not say so with respect to a woman and her daughter,296Verse 17. or a woman and
her mother,287Further, 20:14. because they are “near of flesh” and therefore forbidden even after

18
the death of the other [while in the case of two sisters, it is only during the lifetime of his wife,
even if she is already divorced from him, that he may not marry her sister].

RASHI

SFORNO

‫לא תקח לצרור‬, the Torah means that were it not for the competitive hostility which would result by
the two sisters competing for the love of the same man, there would not have been a biological,
genetic reason for forbidding such a union. Proof that this is the guiding motivation of the Torah
is the fact that after the death of one sister, the surviving husband may marry the surviving sister.

Sara Ronis writes:7

There are a number of stories of remarkable women in Jewish history who participated in the
creation and study of Talmud – Beruriah, Rashi’s daughters in medieval France, Rabbanit Miriam

7
Myjewishlearning.com

19
Shapira-Luria in 14th century Germany and Asenath Barazani, the head of a yeshiva in 16th–17th
century Kurdistan.

Our daf is a reminder that for most of the Talmud’s history, however, the Talmud was a project
by and for men. Sometimes the men who wrote it showed enormous thoughtfulness and empathy
for others. But today it is difficult to see them that way.

Deuteronomy 25:5 states that when one brother dies childless leaving a widow behind, the
remaining brother “will have intercourse with her and take her to him to be his wife and
consummate the levirate marriage with her.”

The rabbis note that the verse in Deuteronomy is redundant. For the rabbis, intentional intercourse
can effect a marriage, so all three clauses — (1) have intercourse, (2) take her to be his wife, (3)
consummate levirate marriage — are basically saying the same thing. Or are they?

Of course not! The rabbis believed that the God did not use language extraneously, so they interpret
each clause as pointing to a different halakhah relating to yibbum. The second clause, “take her to
be his wife,” is the crux of the mitzvah of yibbum as we understand it. So what are the other two
clauses doing? The rabbis attribute the following interpretation to Rabbi Yehudah HaNasi:

What is the meaning of “have intercourse with her”? Anywhere that there are two possibilities
of having intercourse, that if he wants he may marry this one, and if he wants he may marry
that one — each one is permitted. And if he does not, they are both prohibited. “And
consummate the levirate marriage with her.” — it is in a place where levirate marriage is
applicable that a co-wife is prohibited, in a place where levirate marriage is not, a co-wife is
permitted.

Each clause comes to teach something new: the first, that when the man has a choice between his
(childless) brother’s (multiple) widows, he can marry any of them, and when levirate marriage is
not permitted with one of the wives (because she’s his existing wife’s sister or mother, for
example), one cannot marry a co-wife. So a man having a degree of choice allows him to effect
levirate marriage; without that choice, it is impossible. The third clause comes to teach a different
issue — that it is only when the mitzvah of yibbum is operative that a relative disqualifies a co-
wife. If some random man who is no relation to you was married to two women, one of whom you
can’t marry (let’s say, because she’s your sister), and then dies, you can marry the widow who
isn’t your sister.

The Talmud then offers another interpretation of the biblical redundancy.

Rabbi Yosei bar Hanina said: “And have intercourse with her”— this teaches that he divorces
her with a bill of divorce and he remarries her. “And consummate the levirate marriage with
her” — against her will.

Rabbi Yosei bar Hanina states that having intercourse with one’s yevama effects a legal marriage
which would then require a divorce to dissolve. He also teaches that the marriage can be
consummated against the woman’s will.

20
Let’s stop and think about that — a man can effect yibbum (which is a mitzvah!) by sexually
assaulting his brother’s widow. To be clear, this is not a fringe opinion, this ends up being the
halakhah. A woman who has gone through the loss of her husband can be forced to experience
further emotional and now physical trauma to fulfill the biblical directive. And the Gemara moves
on in the discussion about yibbum without recognizing literally any of that. No one in the room of
men doing this work — in the discussion on the page, and in the medieval commentaries who then
work to make sense of the daf — stops and says: absolutely not.

I try to end these articles with an idea that we can take into our lives and apply in some way. But
today, I’ve got nothing. Was the sexual assault of most women and other people common and
largely tolerated by free men in the ancient world? Yes. Does that make this any less chilling to
us? I don’t think so. So instead of an uplifting takeaway, I want to encourage us all to sit with this
horrifying disjunction, to think about whose experiences get overlooked, ignored or actively
legislated against. And to think seriously about the implications — psychological and physical —
of leaving people out of the discussion.

Rabbi Johnny Solomon writes:8

Towards the end of our daf (Yevamot 8b) is a brief statement which should agitate anyone with a
moral compass. As you may recall, and as explained in my remarks on Yevamot 3b we learn from
Devarim 25:5 that when a husband dies without children then an automatic partial ‘marriage’ is
established between this brother and his sister-in-law, at which stage we are taught, ‫ְיָבָמהּ ָיב ֹא ָﬠֶליָה‬
‫‘ – וְּלָקָחהּ לוֹ ְלִאָשּׁה ְו ִיְבָּמהּ‬her Yavam (i.e. husband’s brother) shall come upon her and take her in
marriage, fulfilling the duty of Yibbum’.

I wish to stress the word ‫‘( ָﬠֶליָה‬upon her’) because, as pointed out by the Malbim (in his
commentary to Devarim 25:5), throughout the Tanach we find that wherever reference is made to
a consensual physical union between a man and woman, the word used is ‫‘( אל‬to [her]’) in its
varied forms is used (eg. ‫ ָוֶאְקַרב ֵאֶליָה‬,‫)ַוָיּב ֹא ֵאֶליָה‬, whereas in contrast, the word ‫ ָﬠֶליָה‬is used with
reference to Yibbum. And what is the significance of this? It is, as we are taught in today’s daf,
that a Yevama may be ‘married’ ‫ בעל כרחה‬- against her will.

In case you may think that this is a poor translation of this phrase, it is worthwhile referencing the
Beraita quoted in Yevamot 54a which teaches, on the basis of this same word ‫‘( ָﬠֶליָה‬upon her’),
that Yibbum can be fulfilled ‫‘ – בין באונס בין ברצון‬whether under coercion or willingly’, and this is
the law as codified by the Rambam (Hilchot Yibum V’Halitzah 2:3).

Significantly, this contrast is also emphasized in other areas whereby, while in relation to ‘regular’
marriages the Rabbis (see Kiddushin 12b) interpret Devarim 24:1- ‫‘( ִכּי ִיַקּח ִאישׁ ִאָשּׁה וְּבָﬠָלהּ‬If a man
takes [i.e. through some form of intentional ceremony] a wife and becomes her husband [through
sexual union]’) to teach us that a formal ceremony (what we nowadays call a wedding) is necessary
to sanctify the sexual union for the purpose of marriage , in terms of Yibbum we are taught from

8
www.rabbijohnnysolomon.com

21
Devarim 25:5 - ‫‘( ְיָבָמהּ ָיב ֹא ָﬠֶליָה וְּלָקָחהּ לוֹ ְלִאָשּׁה‬If a Yavam comes upon her [through sexual union]
and takes her in marriage’) that Yibbum is a ‘marriage’ that operates differently to all others (see
Kiddushin 14a) where the sexual union, and nothing else, is demanded and becomes the foundation
of the marriage.

For those like the Meshech Chochmah (see his commentary Devarim 25:5), all this grates with the
general ethical demands of Jewish law. Yet, as he then explains, it is worthwhile noting how Rav
Huna instituted (see Yevamot 52a) that even in the case of Yibbum an intentional ceremony is
required, and often after such a ceremony may the Yavam and Yevama come together in sexual
union.

As should be clear, and as explained in my comments to Yevamot 3b, yibbum is fraught with
moral and ethical challenges. Yet, it is precisely because this is the case, and precisely because the
law can be interpreted and applied to allow actions that do not fit with our moral sense, that our
Sages added safeguards to prevent such behaviour and the possibility of this mitzvah being abused.

Ultimately, in every generation certain mitzvot can sadly be misinterpreted, and certain religious
practices can unfortunately be harnessed in ways that can lead to various forms of abuse. And what
we see from the above is that it is the duty of our Sages to be cognizant of this fact and, where
necessary, add safeguards to prevent and to may be described as ‘halachically criminalize’ such
behaviour.

Rav Elchanan Samet writes:9

9
https://etzion.org.il/en/tanakh/torah/sefer-vayikra/parashat-acharei-mot/acharei-mot-prohibition-marrying-sisters

22
A. DEFINITION AND LOCATION OF THE PROHIBITION

"You shall not take a woman as a wife after marrying her sister, as her rival, to uncover her
nakedness beside the other during her lifetime." (Vayikra 18:18)

The prohibition against marrying sisters is among the long list of forbidden relations included
in Vayikra chapter 18. Rambam explains: "Once a person has married a woman, her near
relations are forbidden to him" (Hil. Issurei Bi'a 2:7). This prohibition of her near relations is
addressed in verses 17-18. Verse 17 prohibits "a woman and her daughter," as well as a woman
and her granddaughter (born either of her son or her daughter), while verse 18 adds the prohibition
of her sister.

Two expressions in verse 18 require clarification.

a. "As her rival" (litzror) - Rashi comments, "This term is derived from the word 'tzara' (distress)
- that each (sister) will cause distress to the other." Rashbam elucidates Rashi's interpretation as
follows: "'As her rival' - as in (Shemuel I 1:6), 'And her rival provoked her.' [In a polygamous
society,] two women married [at the same time] to the same man are called a distress to each
other."

This idea requires further explanation. The prohibition applies not only to a person who marries
two sisters, making them into permanent rivals - for after he marries one sister, the other is
forbidden to him, and any "marriage" to the second does not take effect. The verse furthermore
prohibits any relations with his wife's sister - even a one-time affair, as stated in the conclusion,
"to uncover her nakedness beside the other (his wife)." But the reason for the prohibition is, as
Ramban teaches, "For it is not proper that one take a woman and her sister (as wives), making
them into rivals, for they should love one another and not distress each other."

b. "During her lifetime" - while the relatives of the wife mentioned in verse 17 are "each
forbidden to him forever, whether he divorces her, or she is still alive, or after her death," a
woman's sister is "forbidden to him until his wife dies" (Rambam, ibid.). After his wife's death,
her sister is completely permissible to him, and such marriages have been quite commonplace
throughout the generations.

While the expression "during her lifetime" makes the marriage permissible after his wife's death,
it also involves a limitation: even if the man and his wife are divorced, her sister remains forbidden
to him so long as the divorced wife is still alive. This requires emphasis, especially in light of the
reason given for the prohibition: "as a rival."

The prohibition of marrying the sister of one's wife is the only one among all the forbidden
relations which, although arising from a blood relationship, is nullified upon the death of the person
who represented the reason for it. Although there are two other "temporary" forbidden relations -
"nidda," a menstruant woman, which is nullified after the woman's immersion in a mikveh, and a

23
married woman, who becomes permissible if she is either divorced or widowed - neither of these
arises from a blood relationship.

This unique characteristic of the prohibition against marrying one's wife's sister explains its
position - at the end of the list of forbidden relationships arising from family ties, and prior to the
prohibitions against a "nidda" and a married woman (verses 19-20). Since it belongs partially to
both groups, it is located in between them.

Why is the prohibition against marrying the sister more lenient than the prohibition against the
wife's other relatives (mentioned in verse 17) or the women married to the husband's relatives?
Why is the sister the only woman who becomes permissible after the death of the person because
of whom she was forbidden? This question leads us to a discussion of the reason and definition of
the prohibition against marrying one's wife's sister. It is clear that there is some connection between
the two expressions addressed above - "as her rival" and "during her lifetime," and this connection
is the key to answering the question. We shall return to this subject later on.

B. HOW COULD YAAKOV MARRY TWO SISTERS?

The prohibition of "You shall not take a woman as a wife after marrying her sister" immediately
raises a question: Yaakov, our forefather, married two sisters - "Rachel and Leah, who jointly built
the House of Israel" (Ruth 4:11). How could Yaakov have transgressed one of the prohibitions of
forbidden relationships listed in our parasha?

At first glance, the question does not seem too difficult. Rav David Zvi Hoffmann concludes his
commentary on our verse as follows: "The prohibition against marrying two sisters did not exist
prior to the giving of the Torah at Sinai, as proved by Yaakov's actions."

The Ramban (Bereishit 26:5) nevertheless has a problem with Yaakov's marriage to two sisters,
for he seeks to reconcile this situation with the midrash of Chazal according to which the
forefathers observed the entire Torah even prior to Sinai. But if we do not regard this midrash as
reflecting the literal text, then the question never arises.

But it's not as simple as that. Even a "literal" commentator like Ibn Ezra grapples with this question
in his commentary on our verse, with no reference whatsoever to the midrash of Chazal. Although
he does not explicitly formulate his difficulty, we can deduce it from his answer. The forbidden
relations in our chapter are set out within a rhetorical framework that describes them as
"abominations" through which the Canaanite nations were defiled, and as a result of which the
land became polluted and vomited out its inhabitants. This being the case, the nature of these
actions is not related to or dependent on the giving of the Torah; they obligate - and have always
obligated - even the nations of the world. Thus, we return to our question: how could Yaakov
transgress one of the "abominable" prohibitions that characterize the worst of the nations?

Ibn Ezra answers as follows:

24
"Mistaken is the one who explains that Rachel and Leah were not sisters, proving this with the
words, 'for all of these abominations….' This is not a soundproof… Others have claimed that
although the Torah says, 'all of these abominations…,' as a general description, it does not
thereby refer to all of them (the forbidden relations), but rather only to most of them."

What Ibn Ezra means is that the prohibition against marrying two sisters does not fall into the
category of "abomination," and it was not because of this prohibition that the nations dwelling in
the land were thrown out. Therefore, Yaakov's action is not problematic, for the prohibition against
marrying sisters became applicable for Israel only after the giving of the Torah.

If so, in what way is the prohibition against marrying sisters different from the rest of the forbidden
relationships, such that it is not defined as an "abomination"? The Karaites noted some unique
features of our verse but explained it incorrectly and against the Halakha.

In his listing of the mitzvot, Daniel Al-Qumsi (9th century Persia and Jerusalem) points out that
the Torah does not define marriage to two sisters as "foulness" (zima) and "abomination" (to'eva),
as it does in the prohibition of the previous verse. This point is worthy of emphasis, for all the
forbidden relations in the second half of our chapter (17-23) - those not involving blood relations
of the man concerned - give emphasis, in their reasoning, to the sexual vulgarity and ugliness of
the deed:

Al-Qumsi also notes that in contrast to the previous verse, in which the blood relationship between
the woman and her relatives was stressed ("she is her blood relation"), such emphasis is absent
from our verse.

In his "Eshkol Ha-kofer," Yehuda Hadasi (12th century Crimea) likewise notes the unique nature
of our verse, and writes as follows:

25
Hadasi therefore rightly points out that the formulation of our verse is different than that of the
preceding prohibitions, and even the prohibition itself is different from the others in that it is based
on the rivalry that exists only "during her lifetime," but not after her death.

The Karaites' mistake lay in the conclusion they drew from all of these facts: that our verse is not
talking about two sisters (but rather about two wives, or a woman and her niece, or two unequal
wives). The proper conclusion is entirely different: that the Torah does not regard marrying two
sisters (real, blood sisters) as a perversion or ugliness like marrying a woman and her daughter or
a woman and her granddaughter. It is not licentiousness and an abomination, for the family
relationship between the women does not make it so.

The forbidden relationships defined as "she'er" in the Torah always pertain to the husband's family
relationship with the woman who is forbidden to him (as a result of her status or that of her
husband). From this perspective, a woman and her daughter are likewise not "she'er" with regard
to the man who is forbidden to marry both of them; "THEY are she'er," the Torah says in their
regard, and "they" hints at the woman and her daughter - they are related TO EACH OTHER. And
what does this have to do with the man? The answer is that because the one woman was born of
the other, maintaining relations with both of them is a kind of licentiousness. But the relationship
between two sisters (admittedly born of the same mother, but they themselves are not "one flesh")
does not make marrying them an act of licentiousness. (This distinction would seem to be clear
from a human, psychological point of view as well.)

Why, then, does the Torah prohibit marrying two sisters? The answer is provided in the text:
because it is not MORALLY proper to turn sisters into rivals. This moral reason applies only
during the wife's lifetime; after her death there is no reason for the husband not to marry her sister,
since this relationship is not defined as "she'er." The deceased wife's sister is not a blood relative
of the husband, and her blood relationship with the deceased wife is no longer a valid reason to
prohibit the marriage.

The unique formulation of the verse, the absence of any condemnation of the forbidden
relationship, the moral reason - "as a rival" - and the special condition - "during her lifetime" -
clearly testify to the above conclusion. And this is in fact hinted at in the Ramban's commentary
on our verse:

26
Even clearer expression of this idea is to be found in the Seforno:

It is this, then, that Ibn Ezra was hinting at when he points out that the prohibition against the
woman's sister is not defined as an "abomination," and therefore Yaakov's act in marring two
sisters (prior to the Torah's prohibition of this) need not cause any problem.

C. RAMBAN'S EXPLANATION OF YAAKOV'S MARRIAGE

Ibn Ezra himself has a different opinion concerning our question. In his commentary on verse 26,
"And you shall not perform any of these abominations; neither the Israelite nor the stranger who
dwells among you," he asks why a resident non-Jew is likewise committed to refraining from all
the prohibited relationships mentioned in our chapter. (This question is similar in nature to his
clarification in our verse: were the Canaanites obligated concerning ALL of these forbidden
relationships; was it because of all of them that the land ejected them?) He answers as follows:

The connection that Ibn Ezra points out between the entire list of prohibited relationships (as well
as other mitzvot, such as idolatry) and living in Eretz Yisrael is addressed at length in his
commentary on Devarim 31:16, and is developed and expanded upon in the Ramban's commentary
in several places, especially on verse 25 of our chapter.

Ibn Ezra's explanation for Yaakov's marriage to two sisters - that it took place in Charan and not
in Eretz Yisrael - is likewise developed and complemented by the Ramban:

27
The Ramban is hinting that Yaakov was aware of the fact that the moment he entered the land, the
prohibition against two sisters would apply, and therefore "he had no relations with her at all within
the land, because of the prohibition." This is expressed more clearly in his commentary
on Bereishit 48:7, where he writes: "Yaakov's (true) intention in not taking her (Rachel, after her
death) to Me'arat Ha-Makhpela was in order that two sisters would not be buried there, for he
would thereby be embarrassed before his fathers."

D. THE DEEDS OF THE FATHERS AND THE TEACHINGS OF THE CHILDREN

After all of the above, we have still not received an answer to our question. We have proven that
marriage to two sisters is not categorized as a sexual "abomination" (although following the
Torah's prohibition, it is punishable - like any other forbidden sexual relations - with "karet,"
excision). Its reason, as Ramban explains, is that it is not proper to turn two sisters, who should
love each other, into rivals. Was Yaakov then blind to this seemingly obvious human reasoning?

Yaakov's original intention was never to marry two sisters. He found himself married to both in
the complicated circumstances brought about by Lavan, his father-in-law. In these circumstances
- anin the absence of any formal prohibition against marsis- marrying Rachel and allowing Leah
to remain in his home was the best and fairest thing that Yaakov could do. Divorcing Leah or
refraining from marrying Rachel, in those circumstances, would have been much greater injustices
than being married to both - a situation which did, indeed, turn the sisters into rivals in the fullest,
most tragic sense.

Although we have shown that Yaakov's marriage to Rachel after marrying Leah is not in any way
problematic, we may add a further statement which removes the very question.

The Torah contains various mitzvot that arise from events that happened to our forefathers.
Although most date to the time when the nation had already been formed - the Exodus from Egypt
and the wanderings in the desert - there are some that are connected to the original forefathers
themselves. An example is the prohibition against eating the sinew of the thigh, arising from
Yaakov's battle with the angel in parashat Vayishlach (Bereishit 32:25-33).

I propose that the prohibition against marrying sisters likewise should be understood as arising
from the events of Yaakov's life. Rachel and Leah, who jointly built the House of Israel, were both
worthy of Yaakov, and his act in marrying both was likewise worthy - considering the
circumstances and the lack of any prohibition concerning this. But he witnessed the tragic rivalry
that developed between them: a hostile rivalry that continued and developed over many years, a
rivalry for the love of their husband and a rivalry overbearing children. This difficult relationship
is described explicitly in the Torah in chapters 29-30 of Sefer Bereishit.

28
Such hostility was, admittedly, experienced between many women who became rivals (for
example, Channa and Penina at the beginning of Sefer Shemuel), but a particularly tragic aspect
characterizes such a relationship between sisters, as any reader of these chapters in Sefer Bereishit
senses. Sufficient proof of this is to be found in verses such as (30:1), "And Rachel was jealous
OF HER SISTER," and (30:8), "A Divine struggle have I wrestled WITH MY SISTER."

The lesson learned from this one-time experience from the period of the patriarchs is formulated
with regard to their descendants in the Torah's command, "You shall not take a woman as a wife
after marrying her sister, as her rival." You - the descendant of Yaakov - shall not again take
your wife's sister beside her, turning them into rivals, "for it is not proper… for they should love
each other."

The stories of the forefathers are a teaching in themselves; they contain lessons for their
descendants for generations to come - lessons which are sometimes formulated as explicit mitzvot.
The life stories of the forefathers are meant to serve us - their children - as the basis for leading
our lives according to the mitzvot of the Torah.10

May one marry the sister of his deceased wife?11

Answer: The Gemara in Masechet Mo’ed Katan (23a) recounts that Yosef the Kohen lost his wife
and was left with young children. Yosef indeed married his deceased wife’s sister thirty days later.
Similarly, the Talmud Yerushalmi (Yevamot, Chapter 4) recounts that Rabbi Tarfon lost his wife,

10
Translated by Kaeren Fish.

11
http://halachayomit.co.il/en/default.aspx?HalachaID=2622

29
and he was left with young children, and he proceeded to marry his deceased wife’s sister thirty
days later.

Nevertheless, Rabbeinu Yehuda Ha’Chassid (one of the great Rishonim) warned in his famous
will that one should not marry his wife’s sister following his wife’s passing, for there is a danger
involved. It would seem based on this that marrying the sister of one’s deceased wife should be
prohibited because of the danger this poses.

However, Maran Rabbeinu Ovadia Yosef zt”l writes (in his Yabia Omer, Volume 10, Yoreh
De’ah, Chapter 12) that there is room to claim that even Rabbeinu Yehuda Ha’Chassid would
maintain that when one’s wife passes on and leaves over young orphans and the possibility and
will to marry the wife’s sister exists, it is preferable to do so and there is no concern for danger in
this scenario. This idea is based on the Gemara (Yevamot 63b) which states, “Your sons and
daughters shall be given to a foreign nation,” this refers to the father’s wife. This means that it is
in the best interests of the orphans that their father marries their mother’s sister, for she will have
mercy on them and treat them properly as opposed to the father marrying another woman where
there is concern that the relationship between the children and their step-mother will not be the
best. Thus, in this situation, the father may marry his deceased wife’s sister without any concern.

This is notwithstanding for the opinion of several great Poskim that the will of Rabbeinu Yehuda
Ha’Chassid was meant only for his offspring and not for anyone else.

Hagaon Harav Yitzchak Elchanan Spektor zt”l was asked in his Responsa Ein Yitzchak (Chapter
37) about a certain man whose eldest daughter was married with children and whose younger
daughter was engaged to be married to a certain young man. Suddenly, between the engagement
and the wedding of the younger daughter, the older, married daughter passed away. The younger
daughter expressed interest in marrying her brother-in-law and he indeed agreed. Her father had
posed the question: Is this grounds enough to break off her younger daughter’s proposed match to
the young man or not?

30
Hagaon Harav Spektor discusses this at length, and he concludes that this it is indeed permissible
to break off the match in order for the younger daughter to be able to marry her brother-in-law.
This would indeed be in the orphans’ best interests, for their aunt would surely treat them better
than any other woman. He was not concerned at all about the will of Rabbeinu Yehuda Ha’Chassid
in this scenario.

Summary: One may indeed marry one’s deceased wife’s sister, especially when one has young
children from his first wife.

It says in Yevamos 53b among other places that Yibbum (levirate marriage to the wife of one's
brother when a brother died childless) works against her will. So I was wondering if while it works
is it assur to do it? Is it considered rape? Damaging her? Chillul Hashem? Violation of treat your
friend like yourself. Etc?12

Gemara Yevamos 52a says that it is forbidden Derabanan for one who does Yibbum (i.e relations)
without Doing Maamar to the Yevama (which means giving her monetary value worth a shave
Pruta like Kidushin) and this is equivalent to Mekadesh bebiah - matrimonial relations which
is Chayav Makas Mardus - liable to rabbinic lashes:

‫אמר רב הונא מצות יבמין מקדש ואחר כך בועל ואם בעל ועשה מאמר קנה אם בעל ועשה מאמר פשיטא דהא‬
‫קניה בביאה אלא אימא באם בעל בלא מאמר קנה והתניא לוקה מכת מרדות גמדרבנן דרב מנגיד דמאן דמקדש‬
‫בביאה‬

12
https://judaism.stackexchange.com/questions/88579/yibum-against-her-will

31
Since Maamar has to be done with the woman's consent Like Chachamim Yevamos 19b, one
cannot give the woman money against her will and since miderabanan one must do Maamar it is
forbidden to coerce the woman to do Yibbum and so says the Rambam and Shulchan Aruch
Even Haezer 166,3.

Rambam Hilchos Yibbum 2,1:

.‫מדברי סופרים שלא יבא היבם על יבמתו עד שיקדש אותה בפני שני עדים בפרוטה או בש"פ וזהו הנקרא מאמר‬
‫ואין המאמר קונה ביבמה קנין גמור כמו הביאה והעושה מאמר ביבמתו שלא מדעתה לא עשה כלום שאין האשה‬
‫מתקדשת אלא ברצונה‬

Marriage and Divorce Customs in Yemen and Eretz Israel

32
Aharon Gaimani writes:13

13
Nashim: A Journal of Jewish Women's Studies & Gender Issues , Spring 5766/2006, No. 11, Yemenite Jewish Women
(Spring, 5766/2006), pp. 43-83

33
34
35
36
37
38
39
40
41
 Takkanot Shum14

The Takkanot Shum (Hebrew: ‫)תקנות שו"ם‬, or Enactments of SHU"M were a set of decrees
formulated and agreed upon over a period of decades by the leaders of three of the central cities of
Medieval Rhineland Jewry: Speyer, Worms, and Mainz. The initials of the Hebrew names for
these cities, Shpira, Vermayza, and Magentza form the initials SHUM. While these regulations
were intended to address the problems of that time, they had an effect on European Jewry that
lasted centuries.[1]
Following the devastation of the Jewish communities of the Rhineland during the People's
Crusade, Jews who had formerly made their livings as itinerant merchants could no longer travel
safely, and had to find careers in the cities which they lived. Many became local merchants; others
became moneylenders. This drastically increased the rate of commerce between Jews and non-
Jews, and, thus, litigation both internally amongst Jews and between Jews and non-Jews.
Simultaneously, heavy taxes were being levied on the Jewish communities by the local
government, taxes which many Jews at the time felt were being unfairly distributed by the leaders
of the local kehilla. The increasing internal and external pressures on the Jewish community,
together with their recent near destruction during the Crusades, caused the leaders of the time to
take the step of instituting broad decrees to strengthen their communities.[2][3]

14
https://en.wikipedia.org/wiki/Takkanot_Shum

42
Synod of the Takkanot
In or around 1160, a synod was held in Troyes. This synod was led by Rabbeinu Tam, his brother,
the Rashbam, both grandchildren of Rashi, and Eliezer ben Nathan (the Ra'avan). Over
250 rabbis from communities all over France attended as well. A number of communal decrees
were enacted at the synod covering both Jewish-Gentile relations as well as matters relating
internally to the Jewish community.[4] Examples of such decrees include:

• The restriction requiring Jews engaged in monetary disputes amongst themselves to

have the case decided by a Jewish beth din, and not a secular court, unless one of the
parties was refusing to accept the ruling rendered by the beth din.
• A person disputing the kehillah’s tax assessment on him should pay the tax first and
then bring the assessors to beth din.
• A person lending space to a community to act as a synagogue cannot restrict specific
individuals from praying there. He can only rescind the permission in toto.[5]
Among the many new decrees implemented or older decrees strengthened was the famous ban
of Rabbenu Gershom against polygamy.[6]

Synods of SHUM

Historical interior of the Rashi shul in Worms

The synod in Troyes was binding only on French Jewry. In or around 1196, the rabbis and
community leaders throughout the entire Rhineland called a synod of their own in Mainz, in which
they affirmed most of the decrees of the Troyes synod, and added a number of their own. The
decrees did not take as firm hold as was desired, so twenty-four years later, in 1220, a second

43
synod was convened in Mainz, in which the leaders of the generation re-affirmed the decrees
enacted in the first synod.[4][6] Important historical figures attending one or both of these synods
included David of Münzenberg, Simha of Speyer, Jacob ben Asher of Speyer, Eliezer ben Joel
HaLevi, and Elazar Rokeach.[7]
These enactments covered both internal issues within the Jewish community as well as issues that
involved interactions with the non-Jewish government of the time. Specific examples of
enactments instituted or strengthened at the Rhineland synods include:

• The placement of a cherem on anyone who informed on another Jew until such time as
restitution was made.
• The removal of all exceptions to community-imposed taxes.
• The prohibition against lending money to other Jews without ensuring strict adherence
to the halakhot that dealt with loans.
• The prohibition against calling someone a mamzer or otherwise cast aspersions about
the legal validity of his or her parents' marriage.
• The permission for the estate of a deceased person to be used to educate his or her
children, even if the deceased indicated some other specific use for the funds.
There were many other decrees that dealt with various aspects of Jewish legal, financial, and
religious life of the times.[8]
In 1223 a third synod was held in the Rhineland community, this time in Speyer. The main focus
of this synod was the "Chalitzah takkana," but other decrees were discussed, including the
prohibition against a one person either placing or lifting a cherem. To be either placed or lifted,
such bans needed more than one community leader to agree. Notable attendees of this third synod
included Elazar Rokeach and David ben Shaltiel.[9]

Modern adherence
While parts of various decrees still remain in force, the majority of the Takkanot Shum are no
longer considered in force by most Ashkenazic Jewry. The decrees were instituted to deal with
specific religious and sociological problems of the time, and were not considered to be placed in
force for perpetuity, but for only as long as such issues existed.[10] However, there are two specific
decrees still considered active today: the Dowry takkana and the Chalitzah takkana.[7]
Dowry takkana
At this time it was common to marry off daughters quite young, as soon as a suitable husband
could be found and a dowry put together.[11] Combined with childhood diseases and a high general
mortality rate this meant that it was not uncommon for young people to die within a short time of
marriage, before their spouses had formed lasting relationships with their families. Under
Jewish inheritance law, a husband is his wife's sole heir, but a wife does not inherit from her
husband. Thus, no matter who died, the dowry, which represented a substantial sacrifice by the
wife's parents for their daughter's happiness, would end up with the husband or his family. As a
result, parents became reluctant to give their daughters large dowries, which in turn led to difficulty
in finding them husbands.[9] Therefore the synod of Troyes, led by Rabbenu Tam, decreed that if
a husband or wife dies within a year of marriage without leaving a surviving child, the dowry
would revert to the parents who had given it; if the death was within two years half the dowry

44
would revert.[12] While Rabbenu Tam rescinded this decree before his death, it was reaffirmed by
his students in the first synod of SHUM.[9] This decree is today incorporated by reference into the
standard Ashkenazi prenuptial contract (tena'im), with the phrase "and in case of absence [a
euphemism for death] it will stand as the decree of ShUM"; in some communities even this
elliptical mention of death is thought unlucky at a wedding, so it is merely hinted at with the cryptic
phrase "and in case, etc."[13] Even if it is not explicitly referenced at all, or if there is no contract,
it is assumed that the parties consented to it unless it is explicitly excluded.[14]

Chalitzah takkana

Engraving of a chalitzah ceremony

When a husband died childless, there is a mitzvah for a surviving brother to perform
either yibbum or halizah. Already in the times of the Talmud, performing yibbum was deprecated
in favor of halitza for various reasons.[15][16] The decrees enacted in the various synods of SHUM
dealt with the time span allowed and the disbursement of the deceased's property after halitzah.[9]
The original decree, discussed at all three synods of SHUM, instituted a time limit of three months
after the husband's death within which to perform yibbum or halitzah (although yibbum was rarely,
if ever, performed) and after the halitzah, a beth din would decide upon the disbursement of the
estate, with no recourse for the brother performing halitzah to subsequently sue. This decree was
yet again re-affirmed 60 years later by Meir of Rothenburg.[9]
However, in 1381, another synod was held in Mainz that changed the disbursement—instituting
an even split between the widow and all surviving brothers. This was a change from previous
tradition in which, most often, the brother performing the halitzah would receive
the ketubah monies, as well as usually receiving most, if not all, of the surviving estate. This
version is the second of the decrees still enforced today.[10]

45
References
1. ^ Hirschman, Raphael (May 27, 2009). Ben Nun, Dov (ed.). "The Takkanos of SHUM". Mishpacha (260
(Kolmos Supplement)): 16–23. OCLC 57819059. Archived from the original (PDF) on September 23, 2010.
Retrieved December 8, 2009.
2. ^ Hirschman, 16–17
3. ^ Weiss, Moshe (2004). "Rashi and the Crusades". A brief history of the Jewish people (Google Book
Search). Lanham, MD: Rowman & Littlefield. pp. 101–102. ISBN 0-7425-4402-
8. LCCN 00067546. OCLC 45463461. Retrieved December 8, 2009.
4. ^ Jump up to:a b "Synods". Jewish Virtual Library. 2008. Retrieved December 8, 2009.
5. ^ Hirschman, 18
6. ^ Jump up to:a b Hirschman, 19
7. ^ Jump up to:a b Hirschman, 21
8. ^ Hirschman, 20–21
9. ^ Jump up to:a b c d e Hirschman, 22
10. ^ Jump up to:a b Hirschman, 23
11. ^ Tosafot Kiddushin (41a) sv assur le'adam
12. ^ Rama, Even Ha'ezer 53:3
13. ^ Mordechai Farkash, Seder Kiddushin Venisu'in 1:11
14. ^ Beth Shmuel 53:20
15. ^ Talmud Bekhorot 13a
16. ^ Talmud Yevamot 39b

Elkanah with his Two Wives, Ninth German Bible (Cologne Bible)

(Anton Koberger: Nurenburg: 1483)

46
 The Biblical Prohibition of Polygyny?

Popular legend tells us that Rabbenu Gershom (d. ca 1028) was the first to prohibit polygyny.

The Damascus Covenant’s understanding of the law in Leviticus 18:18, however, suggests

that polygyny may have been prohibited more than a thousand years earlier by the Priestly

authors.

Dr. Hacham Isaac S. D. Sassoon writes:15

The ostensible source for the law prohibiting a man from marrying two sisters is Leviticus 18:18:

The LXX already understands this verse, as prohibiting marrying two sisters: “You shall not take
a wife in addition to her sister as a rival to uncover her nakedness in opposition to her while she is
yet living.” But this understanding is not at all obvious or certain.

Sister

The first three words of the verse, constitute a formidable crux. Literally, of course, isha means
woman (or wife) and ahot means sister. Hence the usual translations. However, the phrase ishah
el ahotah is another matter. It occurs eight more times in Scripture:

15
https://www.thetorah.com/article/the-biblical-prohibition-of-polygyny

47
All eight examples come from Priestly or Priestly style (=Ezekiel) texts, as does Lev 18:18. In all
eight instances the phrase is being used idiomatically to signify a relationship of symmetry or
congruity between two objects or sets of objects; in no case does the ishah or the ahot refer to a
person. In addition, it is unlikely that Hebrew would use the preposition ’el rather than the
conjunction vav to express marrying a woman and her sister.

Rivals (‫ר‬-‫ר‬-‫)צ‬

The term litzror in the verse’s second half is another crux. It typically means “to bind, constrict,”
but can also denote the idea of “to cause rivalry,” as reflected in ‫ר‬-‫ר‬-‫’צ‬s derivative noun ‫( צרה‬pl.
‫)צרות‬. Like its Akkadian cognate ṣerretu,[2] ‫ צרה‬may refer to a “rival,” particularly a rival wife.[3]

48
For example, Channah and Penina (who are not depicted as sisters) are described as rivals (‫)צרות‬:

Now if the phrase “a woman and her sister” is to be understood as literally denoting sisters,
then litzror would seem otiose. Presumably, a prohibition of marrying sisters would be due to it
being considered a form of incest, not to the fear that sisters would be rivals. As shown by the case
of Channah, a second wife can always be a “rival” to the first (and vice versa), sisters or not.

In Her Lifetime

The verses be-hayehah proviso is also problematic, being unparalleled throughout Levitcus’ incest
laws. Its singularity stands out sharpest when juxtaposed with a parallel proscription in Lev 18:16,
which prohibits a union between a man and his brother’s wife.

The verse does not add ‫בחייו‬, “in his lifetime,” and the prohibition does not appear to lapse at the
brother’s death. So if a woman is barred from marrying her husband’s brother even after her
husband’s death, why should a man be at liberty to marry his wife’s sister after his wife’s death?

Prohibition Against Polygyny

What if instead of proscribing marriage between a man and two sisters, Lev 18:18 were reflecting
the Priestly Torah’s wish to abolish polygyny – i.e., a man marrying more than one wife?[4]

The Yibbum Problem

49
An objection often raised against such a reading of the verse is the mitzvah of levirate marriage
(yibbum) in Deut 25:5-10. If polygyny is forbidden, then a married man would not be able to marry
his deceased brother’s widow; and yet according to the laws of yibbum he would have to. This is
a serious argument for those who see the Torah as a homogenous document. But for source critics,
it cannot be taken for granted that P endorses laws belonging to other law-codes. Hence, P need
not have subscribed to Deuteronomy’s institution of yibbum.[5]

Precedent of Anti-Polygyny Interpretation: The Damascus Covenant (CD)

This interpretation of the verse has a long pedigree. The Dead Sea Scroll known as the Damascus
Covenant (hereafter CD) clearly understood Lev 18:18 in this way:

From references to a group thus named elsewhere in the scrolls, scholars have concluded that
“Builders of the partition” is a code name for the Pharisees, who are known to have permitted and
possibly practiced polygyny. Since the Pharisees interpret Lev 18:18 as a prohibition against
marrying two biological sisters, this leaves open the possibility of marrying two women who are
not sisters.

CD is polemicizing against that tradition of the “Builders,” with a not-so-subtle paraphrase of Lev
18:18 “taking two wives in their lifetimes.”

50
CD doubles the biblical prohibition by claiming that polygyny violates the rights of both women,
not just the first wife.

Popular legend tells us that Rabbenu Gershom (d. ca 1028) was the first to prohibit polygyny.
Although the historicity of this ascription has been disputed,[6] the custom took root in medieval
Ashkenaz and became standard practice in the Ashkenazi Jewish community by the
12th century.[7] This Ashkenazi ban, however, did not claim Talmudic—and certainly not
scriptural—authority as CD did.[8]

On the other hand, unlike Cherem de-Rabbeinu Gershom, CD’s reading of the verse did not
prevail. (It was very likely bullied into silence and into long oblivion!)

Footnotes

1. This article is a condensed version of Isaac Sassoon, The Status of Women in Jewish Tradition (Cambridge: Cambridge

University Press, 2011), chs. 1 and 2.

2. See, Hayim ben Yoseph Tawil, Akkadian Lexicon Companion for Biblical Hebrew (Jersey City: Ktav, 2009), 328.

3. See 1Sam 1:6; m. Yev. 1:1 and passim.

4. “Polygamy” is a broader term, marrying more than one spouse, while “polyandry” refers to a woman marrying more

than one husband.

5. For more on this, see my forthcoming TABS essay on Parashat Kedoshim.

6. Peretz Tishby, for example, believes the custom dates from the 12th century. See Peretz Tishby, “Concerning the

Enactments (Taqqanot) of Rabbenu Gershon Meor Haggola,” Tarbiz 34 (1964-1965): 49–55 [Hebrew; English

summary pp. IV–V].

51
 7. See the lengthy discussion of this process in, Mark Goldfeder, “The Story of Jewish Polygamy,” Columbia Journal of

Gender and Law 26.2 (2014): 234-315.

8. Halakhic literature in the early Ashkenazi period came up against the same yibbumproblem referenced earlier.

Some posqim allowed second marriages in the case of yibbum—at least theoretically—as an exception to the rule. See

discussion in Encyclopedia Talmudit vol. 17, “‫חרם דרבינו גרשום‬,” section 9 (‫)בנישואי מצוה‬, and references there in n. 346.

Marc Chagall, Ruth at the Feet of Boaz, 1960. Lithograph

Levirate Marriage Across Cultures

Jeremy Brown writes:16

Over the next one hundred and twenty-one pages, we will be studying Yevamot. The tractate
discusses levirate marriage, in which a man marries his deceased brother’s wife. Levirate marriage
(from the Latin, levir, meaning a husband's brother) is only practiced when there had been no
children from the union of the first brother and his wife. The Torah is very clear about the reason
for the law:

16
http://www.talmudology.com/

52
LEVIRATE MARRIAGE - IT’S NOT JUST FOR THE JEWS

The custom of levirate marriage is hardly unique to Judaism, and forms of it are (or were)
practiced in many other cultures. Here are just a few:

In the Code of Hammurabi

According to the late scholar of Judaism Father Roland Guérin de Vaux (1903-1971),
lots of cultures that predated or were contemporary with early Israelite culture also
had a form of levirate marriage. Here is an excerpt from his book Ancient Israel:

In Mongol Culture and in Yuan China

As Bettine Birge explained in her fascinating paper, in Mongol culture the rights to a woman’s
person were were transferred to a groom's family in return for a payment. In addition, brides could
also be obtained by capture, or by inheritance from an older male relative. She goes on to explain
that this was the Mongol form of levirate marriage:

53
This background in important in understanding what happened in China, where the practice of
levirate marriage was originally abhorred. Indeed, sexual relations between a widow and any of
her husband's relatives was considered to be incest. However, during the Yuan dynasty of the
thirteenth century, previous Chinese codes were abolished, and the ruler Kublai Khan decreed that
any man had the right to take his father's wife or an older sister-in-law in levirate marriage.As
Birge pointed out, Kubilai's decree was a sharp break with the policies of his government up to
that time, and was inconsistent with his usual tolerance of indigenous customs. The whole thing
was very confusing. “Over the next few years,” she wrote, “there was disagreement between
different courts over the application of levirate law. Some lower courts continued to reject levirate
marriage on the basis of Chinese laws, while official of the central long-standing government
harshly enforced the 1271 edict.” In 1294 Kublai Khan died and was succeeded by his grandson
Temur, who moved away from some of the policies of his zaide. As a result, new restrictions were
placed on the rules of levirate marriage, and by 1330 all forms of the practice were outlawed for
the Chinese, although by then there was already a trend moving in this direction.

In Yoruba Culture

The Yoruba are a west African ethnic group, with members in Nigeria, Benin, and Togo.
According to Samson and Olesugun Olanisebe of the Department of Religious Studies at Obafemi
Awolowo University in Nigeria, the Yoruba practice a form of levirate marriage. It goes like this:

54
In Zulu and in Dinka Culture

Levirate marriage is practiced by other ethnicities in Africa. In Zulu culture, “whenever a woman
fails to give birth or is infertile, the husband’s family would find another woman who can produce
children for the family, either through marriage or by using the infertile woman’s sister as
surrogate.” And if a husband died before fathering a child “the levirate custom can be used to
remedy the situation. Since it is culturally unacceptable for a man to die childless, if a man dies
without a wife, the family will arrange a wife for one of his brothers on his behalf to perpetuate
his name. The children born from such a union then belong to the deceased brother…in some
Zambian communities, a levirate marriage is regarded as a form of sexual act of ritual cleansing
for the widow who is to be inherited or wedded. ”

55
And among the Dinka, the largest ethnic group in Southern Sudan, levirate marriage is still
practiced, “largely because the acquisition of many wives is important for the Dinka
socioeconomic life style.” Here is how Stephanie Beswick described the custom:

POSTHUMOUS REPRODUCTION AND YIBUM IN MODERN

ISRAEL

As we have seen, levirate marriage crosses many different cultures and has been practiced for
centuries. The levirate marriage Boaz performed with Ruth took place somewhere between 1,300
BCE and 1,100 BCE, which makes it at least three thousand years old. But there are very modern
questions that surround this ancient custom. Here’s one: what happens if a married man died
without children but left frozen sperm that can impregnate his wife. If she conceives a child, is she
still subject to the laws of yibum?

This case of posthumous reproduction was discussed in a paper by Avishalom Westreich published
in the Journal of Law and the Biosciences in 2019. The paper (which won the prize for outstanding
papers presented at the World Congress on Medical Law and Bioethics in 2018!) discusses how
new technology affects religious laws and describes the Israeli debate over the posthumous sperm
retrieval of fallen soldiers and their equivalents in the Jewish discussion of the early ‘forefather’
of this technology: levirate marriage. Westreich cited a responsum of the late Rabbi Zalman
Nechemia Goldberg, who first framed his approach to the halakhic decision-making process:

56
Consequently, Rabbi Goldberg ruled that posthumous sperm retrieval should not be prohibited.
Indeed it should be encouraged, because of “the natural desire for procreation, ‘to leave a name
and remembrance’, which was the basis for the laws of levirate marriage.” In December 2016, the
Israeli Supreme Court issued a decision which acknowledged that the right to procreate also
applies to posthumous fertilization.

The question of whether the ensuing child would legally count as belonging to the deceased is the
topic of halakhic debate. Rabbi Moshe Sternbuch thought it did not. “Where the fetus was
conceived from sperm after the sperm-owner’s death, the sperm-owner cannot become his father,
because it is impossible for a dead person to become a father.” Others, like the late Rabbi Shlomo
Zalman Auerbach disagreed, and ruled that posthumous reproduction should be viewed as but a
variant of the normal parent–child relationship. As such, it was subject to all the normal laws of
inheritance and should be viewed as complying with the religious commandment of ‘Be fruitful
and multiply.’

57
 Kurdish Marriage Patterns17

Kurdish marriage arrangements are very complex and defined by tribal traditions. Almost all
Kirmanji-, Sorani-, Zaza-, and Gorani-speaking Kurds are historically tribal people, and tribal
traditions continue to affect the daily experiences of tribal, as well as nontribal Kurds, who live in
both rural and urban areas. The term mal also means a lineage in Kurdish. A lineage is a group of
people who descend from a common ancestor. According to tribal ideology, brothers, father, and
sons are joined in a single group, creating a division within the tribe against the father's brother
and his sons. They all unite against far removed patriarchal cousins.

Although a tribe is segmented genealogically, all of the units described above are united as
patrilineal kin against another tribe at times of conflict, such as blood feuds. Tribal membership
exists both in terms of putative patrilineal kin groups (groups that trace their genealogy to a
common ancestor of the main branch of the tribe) and fictive patrilineal kinship groups (groups
created in circumstances when an individual was adopted as a tribal member; lineages are traced
from this adopted individual).

However, tribal kinship is described bilaterally (traced through both male and Kurdish households
may have both a male and female head, with separate family obligations. Kurdish traditions are
being modified by outside forces, including global capitalism. ED KASHI/CORBIS female lines).

Kurdish kinship terminology consists of two categories: kin relations traced through blood
(consanguine) and through marriage (affinal) relations. In each category, terms are very specific
for ascending and descending generations; the categories define patrilineal kin and female affine,
as well as social relations.

Yezidi traditions are similar to the traditions of Muslim Kurds yet are differentiated by the
existence of social categories: sheihks, peshimams, pirs, kawals, and faqirs. These categories
clearly define social, political, and economic positions, as well as responsibilities of these
individuals within Yezidi societies.

Marriage is one of the most important events for establishing alliances and creating social
hierarchies within and between tribes. Upon marriage, a woman leaves her birth homestead and
moves to her husband's village.

Traditionally, a woman did not move away from the territory of her lineage since most marriages
were within the lineage where members live a short distance away. However, urban migration and
diaspora relations resulted in contemporary marriages in which women not only move from their

17
https://family.jrank.org/pages/1026/Kurdish-Families-Kurdish-Marriage-Patterns.html

58
paternal homes, but frequently cross-national borders. Traditionally, Kurdish marriages are
arranged marriages.

Marriage arrangements may be completed even before children are born. For boys and girls,
marriage establishes the passage to adulthood. The marriageable age of male and female children
varies according to socioeconomic class and the specific needs of individual families. The average
age for marriage increases in urban areas, where the parties involved are usually educated and
employed. Although the marriage age of boys is slightly higher than girls, this depends on various
social and economic strategies of households. Generally, girls' marriages are postponed when there
is a labor shortage in the family.

However, they may be given in marriage at an early age to settle a dispute in a case of kidnapping,
taking an unmarried girl by force to marry against her will. That is, if a son of family A kidnaps a
girl from family B, the resulting dispute between the two families can't be settled unless
family A gives a girl to family B.

The possibilities of both eloping and kidnapping also contribute to the desire to arrange early
marriages for girls. Although kidnapping and eloping are relatively rare, both cause a social
disruption and require mediation between lineages and families to recover from social and
economic damages. These events highlight certain aspects of Kurdish family traditions.

Historically, tribal endogamy—the obligation to marry within the tribe—is followed in Kurdish
marriages. Yezidi marriages similarly follow strict endogamy within well-defined social
categories. Yezidi traditions do not allow marriages between the families of sheihks, peshimams,
pirs, kawals, and faqirs.

According to Kurdish traditions, a man has the right to marry his paternal uncle's daughter. Any
arrangement contrary to this rule must be negotiated between the two brothers. Therefore, for all
Kurds the preferred form of marriage is with patrilateral cousins (the children of siblings of the
same sex, FBD/FBS—father's brother's daughter and son) while cross-cousin (the children of the
siblings of opposite sex, FZD/FZS—father's sister's daughter and son) marriages are rarely
practiced. The lineage endogamy is secured by marrying a first parallel cousin, and if this is not
possible, a second or a more distant patrilateral cousin. The patrilateral cousins' marriage keeps
property in the family and reinforces patriarchal and tribal solidarity.

Marriages are often arranged in the form of direct exchanges, pê-guhurk. Direct exchange
marriages are made if one household head, who gives a daughter to another one as a wife for their
son, demands a wife in return. The most common form of a direct exchange between two
households is sister exchange. In rare cases, marriages are arranged between three families:
family A gives a daughter to family B, family B gives a daughter to family C, and
family C completes the circle of exchange by giving a daughter to family A. Direct wife and sister
exchanges eliminate the payment of bride-price in marriages.

59
In Kurdistan, a widowed woman stays with her husband's family. If she is widowed when her
children are young, she is obliged to marry her deceased husband's brother. This form of marriage
is called levirate. Sororate is another custom: When a man loses his wife before she bears a child
or she dies leaving young children, her lineage provides another wife to the man, usually a younger
sister with a lowered bride-price. Both levirate and sororate are practiced guaranteeing the well-
being of children and ensure that any inheritance of land will stay within the family.

Most Kurdish marriages are monogamous marriages. However, Islam allows polygynous
marriages; a man may have as many as four wives at one time providing that he fulfills his
obligations as prescribed in Islam. Although statistically rare, polygynous marriages are practiced
by Kurdish men who have high economic and political status or claim to have such status.
Patriarchal ideology justifies these marriages by emphasizing the Islamic prescription that asserts
that social harmony will develop between wives who share household chores and childcare. In
reality, polygyny complicates social relations between the members of extended households.

Bride-price is called naxt in Kurdish. It is given to the family of the bride at the time of betrothal
or may be paid in increments until the wedding ceremony. It is paid in cash and gold and may
include gifts to the bride and her family, the expenses of the wedding ceremony, a rifle, a revolver,
jewelry, household goods, electronic equipment, and hoofed animals. The wedding expenses,
including the bride-price and the construction and preparation of a room for the marrying couple,
may be as much as one year's income for an average household. The amount of the bride-price
varies according to the wealth and social standing of the groom's family. However, the bride-price
is decreased if the marriage is an FBD/FBS marriage.

The bride does not claim any of the bride-price. Generally, most fathers of young sons use the
bride-price, which they receive from their daughter's marriages, to pay the family providing a bride
for their sons. Fathers of young women are expected to prepare a trousseau and a dowry, which
may include jewelry and livestock, for their marrying daughters. Kaleb or sirdan, so-called milk
money, is not negotiated between families; rather, it is courteously presented to the mother of the
bride, generally in the form of gold jewelry, for her loss of a daughter and a laborer.

Traditionally, peasant weddings include everyone living in the village of the groom and involve
elaborate ceremonies. Most able members of the village contribute to wedding preparations in
different ways. The wedding ceremonies may last several days. Following proper rules of conduct,
a newly married couple avoids being in the same room with the groom's father for close to a week,
although they are living in the same house. It is only after this period of prohibition that a bride
can visit her parents to receive their blessings.

The preference for FBD/FBS marriages is one of the reasons why young men and women choose
to elope. In urban areas, some young girls negotiate to marry a young man they choose by
threatening their parents with the possibility of eloping. In both rural and urban areas, kidnapping
may also be considered as an attempt on the part of young people to undermine this patriarchal
imposition. Eloping and kidnapping also eliminate the problems of paying a high bride-price for

60
the Kurds, but not for the Yezidis. Both eloping and kidnapping bring shame to families. However,
kidnapping may have far more serious consequences. It may result in inter-lineage and intertribal
feuds, since it is believed that the woman's honor is stained; she is no longer considered a virgin
and can't be returned to her family.

Traditionally, blood feuds are intertribal affairs. When a Kurd is murdered by someone from
another tribe, not only the lineage of the dead man, but the whole tribe comes together for an extra-
juridical form of punishment, usually provoking countermeasures that lead to escalated tribal
warfare. Settlement between the tribes can be a lengthy process and is pursued until an agreement
is reached about the payment of blood money, bezh, to the relatives of the victim. Blood feuds are
more widespread in Northern Kurdistan than in other parts of Kurdistan, and incidents of it are
decreasing as the power of tribal leaders decreases.

Among Muslim Kurds, despite the sharia, Islamic law, and civil inheritance laws where
applicable, and among Yezidis, women are not given property, including land, pastures, houses,
and livestock, as their inheritances. In addition, FBD/FBS marriages guarantee the continuity of
patriarchal domination; it is less likely that her husband will support a woman's right to claim her
inheritance. However, in urban areas, education, employment opportunities and nontraditional
marriage arrangements situate women in more powerful positions to demand their legal
inheritances.

Every birth in a Kurdish family is recognized with joy. In rural households, mothers do not
discipline their children in the presence of their inlaws. Generally, breastfeeding continues until
the baby is two years old. Although toddlers receive excessive care, as they grow up to understand
the world around them, they also recognize that seniority is the organizing principle in Kurdish
households. Children are expected to be obedient and submissive to their elders. Traditionally,
they do not contest the decisions of the parents.

Sibling bonds, especially between sisters and brothers, are very strong among the Kurds. Brother-
sister ties continue after her marriage. This bond guarantees the well-being of the sister in her
husband's household. In exchange, it secures the brother's right to keep all inherited property.
Despite tribal ideology and the segmentary model, FBSs are usually close friends. Conflicts
between the two of them, especially related to the division of landed property, are generally
managed by the elder's mediation within village life. Cross-cousins (MBSs/MSSs) also usually
have a close relationship and most often invest in trading activities together. Kurds are very clear
in defining how close their relatives are with specific terms and references. The distance and
the closeness of the kin are also strategically defined in terms of establishing ties with individuals
who may be profitable to have as familial contacts. Kurds develop close relationships with their
non-Kurdish neighbors through a mechanism called tirib relationships.

Circumcision is an important rite of passage in a man's life. Most boys are circumcised between
the ages of six and ten. Kurds select a tirib from their neighbors who will comfort the young boy
during his circumcision, with the hope that the two will have a lifelong relationship. Yezidis have

61
a similar custom, selecting a Muslim man as karif or kiniv for the young boy, forming a blood-
brotherhood between the two.

Bibliography
Ahmetbeyzade, C. (2000). "Kurdish Nationalism in Turkey and the Role of Peasant Kurdish Women." In Gender Ironies of
Nationalism: Sexing the Nation, ed. T. Mayer. London and New York: Routledge.

Guest, J. (1987). The Yezidis: A Study in Survival. London and New York: KPI.

Gunter, M. (1990). The Kurds in Turkey: A Political Dilemma. Boulder, CO: Westview Press.

Izadi, M. (1992). The Kurds: A Concise Handbook. Washington, DC: Crane Russak.

Keyenbroek, P., and Allison, C., eds. (1996). Kurdish Culture and Identity. London: Zed Books.

Keyenbroek, P., and Sperl, S., eds. (1992). The Kurds: Contemporary Overview. London: Routledge.

Meiselas, S. (1997). Kurdistan: In the Shadow of History. New York: Random House.

Olson, R. (1989). The Emergence of Kurdish Nationalism 1880–1925. Austin: University of Texas Press.

Van Bruinessen, M. (1992). Agha, Shaikh, and State: The Social and Political Structures of Kurdistan. London: Zed Books.

Yalçin-Heckmann, L. (1991). Tribe and Kinship among the Kurds. Frankfurt: Peter Lang.

62
 Levirate, Sororate, Ghost Marriage and More18
As noted earlier, every culture must satisfactorily provide for the care and socialization of
children in order to survive. That is one of the major functions of marriage, since it assigns
the group responsible for care and socialization. In matrilineal and patrilineal cultures, that
group is not the nuclear family, but the lineage as a whole. The lineage is responsible for all
children of the lineage, and it is from his or her lineage that a person obtains their rights to
use certain areas of land, their rights to live in certain houses, and often their prestige.

The lineage responsibility for the children, plus the practice of brideprice, in part explain the
practices of levirate and sororate.

Levirate

In our culture, if a woman's husband dies, leaving her, say, with three small children, her
economic status tends to plummet. If the woman is lower middle class, or lower class, the
death of her husband is likely to be her (and her children's) ticket to poverty. In addition to
the economic effect, the loss of a parent often has a traumatic emotional effect on young
children. The fact that the woman has three young children also decreases the probability of
remarriage in many cultures. Levirate avoids all these problems.

In levirate, when a woman's husband dies, she is expected to marry his brother (or at least a
male in her dead husband's lineage). The diagram below illustrates levirate.

Levirate

I have illustrated levirate along with patrilineal descent (people in blue), patrilocal
residency (x's) and an Iroquois terminology system, since levirate is often associated with all
three. Notice that levirate means that Ego and his brother and sister do not physically move,
since they have been living in the same household with their mother's new husband from the
time they were born. In fact, they have been calling him the "father" term all their lives.
Their economic level does not change, since it was the patrilineage as a whole that was always
responsible for their care, as well as their socialization, not just their father. The economic
level of their mother does not change either. She is able to stay with her children in their

18
https://laulima.hawaii.edu/access/content/user/millerg/ANTH_200/A200Unit2/LevirateSororate.html

63
lineage. If a brideprice was paid when she married, there will be no question that some of
brideprice should be returned, as might be the case if she left her dead husband's lineage.

While the woman might marry an unmarried brother or male of the lineage, if available,
almost all patrilineal societies permitted polygyny due to levirate. Americans always ask,
"But what if she doesn't want to marry her husband's brother?" In fact, she often did since
it solved so many potential problems. If her children were grown, she might simply stay with
her sons without remarriage, if she so chose. In any event, cultures with levirate tended to be
more concerned with the welfare of the children than with their mother's freedom of choice.

Traditionally, the Yanomamo, traditional Hmong, and the Nuer had levirate, at least some
of the time. While relatively rare among the Hmong in Laos, in increased greatly in
frequency due to the Vietnam War. The death rate among male Hmong was such that many
clan elders married the widows of their younger brothers or other young men of the clan.
Subsequently, this led to many "divorces" of wives in order for everyone to immigrate to the
United States. Nonetheless, in the United States, Hmong men continued to assume
responsibility both for their one legal wife (in the U.S. view) as well as their "ex" wives who
were their brothers' widows.

Sororate

In sororate, when a man's wife died, he was expected to marry her sister. Again, an
unmarried sister or other female of the same lineage would be the preferred choice,
but polyandry might be permitted in cases of sororate.

Sororate

Sororate, shown above in a matrilineal, matrilocal culture, functioned in much the same way
as levirate. It was sometimes practiced in patrilineal, patrilocal societies with preferred cross
cousin marriage. If a man had married his cross cousin, then her sister was probably married
already to his brother. The sister would then have two husbands, but the children would stay
within their father's patrilineage.

Ghost Marriage and Woman-Woman Marriage

The Nuer had two other rare, but occasional forms of marriage. I have already mentioned
that men were expected to bring children to their lineage. If, as sometimes happened, a young

64
man died before he could have children, it was assumed that his spirit or soul was unhappy.
An unhappy soul might stay here on earth as a ghost (a technical anthropological term
meaning the soul of a dead person that stays on earth!). If this happened, the unhappy ghost
might cause sickness and other misfortune for his lineage. In an attempt to placate the ghost,
the lineage might negotiate and pay the brideprice for a bride for their dead relative. The
ghost would then have children with the new wife, who would of course belong to their
father's lineage.

Ghost Marriage

Since obviously a ghost cannot father children, what normally happened was that the new
bride formed a permanent liaison with one of the live men of her ghost husband's lineage,
most likely one of his brother's. The brother was the biological father of her children, but
her ghost husband was the cultural father. The children of course were the responsibility of
the lineage as a whole.

Woman-Woman Marriage

Woman-woman marriage was also found among the Nuer. In the article on Nuer Marriage,
notice that the newly married woman initially continued to live at home. Only after the birth
of her first (and sometimes second) child did she actually move to her husband's household
according to the rules of patrilocal residency. This was because the woman might prove to
be infertile. If she could not produce children for her husband's lineage, a divorce would
occur, and whatever portion of the bride price that had been paid would have to be returned
by her lineage or clan. The woman would have to return to (or remain with) her own
patrilineage, but they would be unable to arrange another marriage for her, since it had been
proven she could not have children. Her lineage might than culturally reassign her to be a
"male” and pay the brideprice so that "he" could get married. The new bride would move
in, and ultimately her children would belong to their "father's" lineage, as illustrated below.

65
 Woman-Woman Marriage

Of course, the biological father of the children would be the cultural "male's" brother, or
some other man of the patrilineage. Normally, the wife would form a stable sexual
relationship with one specific male in the lineage. Woman-woman marriage enabled a sterile
woman to have children, and to contribute meaningfully to her lineage. It also gave her a
place in a culture where all adults were married. Except for ceremonial purposes, the woman
continued to have the female role in the culture; with ceremonial activities involving the
children, she became their cultural "father". This practice did not indicate any homosexual
relationship between the two women, and the "cultural male" often had discrete sexual
affairs with men who were not of her lineage.

66
 19

19
https://www.degruyter.com/document/doi/10.1515/9781614512639/html

67
68
69
70
 Henry Charles Fitzroy Somerset, 8th Duke of Beaufort 1824-1899

Science, Torah, and The Deceased Wife’s Sister Controversy

71
Jeremy Brown writes:20

THE PLAN

We are going to discuss what we mean when we say that science changes. We are also going to
look at some Jewish skeptics of science, and their understandings and misunderstandings of the
concept of a science that changes. We’re going to do this through the lens of Yevamot and
examine in some depth The British Medical Journal’s understanding of Ta’amei Hamitzvot, the
reasons for the commandments in the Torah. But to do so will require a detour into a fascinating
social debate that took place in Victorian England. We are going to dive deeply. So strap in. (Yes
I know. Too many metaphors. Sorry.)

For the last seven pages, the talmud has been analyzing one phrase in the Torah (Lev. 18:18):

Based on the word ‫ – בחייה‬is still alive, the Talmud in Yevamot (8b) established that a man may
marry his wife’s sister if, and only if, his wife had died.

This is reflected in the Code of Jewish Law, the Shulchan Aruch, which ruled (as
did Maimonides) that the prohibition against a man marrying his wife’s sister exists only while his
wife is alive. On her death, a man may marry his deceased wife’s sister.

Just to be clear – this is not the central focus of Yevamot, which is concerned with levirate
marriage; that’s when a man marries his dead brother’s widow; but it is very important since it
will touch on issues central to science and Yevamot. Let’s see how.

20
https://www.talmudology.com/jeremybrownmdgmailcom/2015/1/19/science-torah-and-the-deceased-wifes-sister-controversy-
part-i

72
 Duke of Beaufort Henry Somerset (d. 1853)21

WAS HENRY ILLEGITIMATE?

The Jewish law allowing a man to marry his dead wife's sister was not followed in Victorian
England. Quite the opposite - a marriage like this was forbidden. But a debate about this law began
with a question about the legitimacy the Duke of Beaufort. Henry Somerset (d. 1853) the seventh
Duke of Beaufort, had married Georgina Fitzroy and had fathered two girls with her. But Georgina
died in 1821, and the sad Duke then married her younger half-sister Emily, with whom he had a
further six daughters, and a son. (I know this is beginning to sound like a complicated episode
of Downton Abbey, but bear with me. It’s worth it.) That son was Henry Charles FitzRoy
Somerset (1824-1899), who later became the 8th Duke of Beaufort. But there was a problem.
Perhaps Henry was not a legitimate heir to the House of Somerset, since he was the child of a
union of a man and his wife’s sister (or in this case, half-sister.) If the old Duke’s marriage to his
dead wife’s (half-) sister was prohibited, then Duke Henry was a bastard child, and his inheritance
would have to be passed on to other males in the family line. There was a lot at stake.

21
After the death of his wife in 1821, he married her younger half-sister, Emily Frances Smith, daughter of Charles Culling Smith,
on 29 June 1822; they were both daughters of Lady Anne Smith, the Duke of Wellington's sister. (This marriage, in contravention
of the canon laws of the Church of England, rendered his marriage potentially annullable for many years: for this reason Wellington
himself strongly opposed it.)

73
The solution came with the 1835 Act to render certain marriages valid and to alter the law with
respect to certain voidable marriages, introduced by Lord Lyndhurst. This Act retrospectively
made any marriage like the old Duke’s valid but prohibited any such marriages from taking place
in the future. In this way, the present Henry, Duke of Beaufort, was not a bastard child after all;
he could inherit the estate, and all was made good.

Except that it wasn’t. The Act did not settle matters at all, and ignited a debate in England that
lasted seven decades.

Chief Rabbi Nathan Adler 1741-1800

74
THE CHIEF RABBI AND THE ROYAL COMMISSION

In 1842, and almost every year after that, the British Parliament debated whether to legalize the
marriage between a man and his dead wife’s sister. Queen Victoria appointed a Commission to
look into the whole thing, and look it did, producing a report of over 150 pages in 1848. Buried
in that report is a letter from the Chief Rabbi Nathan Adler, who made the Jewish position very
clear.

It didn’t much matter. The law remained the law, though it seemed that the British public ignored
their learned lawmakers. In one 1849 parliamentary debate, it was estimated that there were some
13,000 such marriages. These marriages in turn produced about 40,000 children, all of whom were,
by Victorian standards, bastards.

Things became especially heated in the late 1870s when some 3,000 farmers (all, apparently from
Norfolk – what was happening in Norfolk?) signed a petition “praying for the legislation of
marriage with a deceased wife’s sister.” And so, in May 1879, the Prince of Wales
himself introduced a bill to legalize this marriage in Britain’s Parliamentary upper chamber, the
House of Lords. Their lordships droned on, and on, and on (the transcript takes up some eight
pages of single space font) until the measure was struck down in a vote: “Contents 81: Not-
Contents 101”.

But even in England, things do change, and by the beginning of the twentieth century, Parliament
was ready to legalize what many women were already doing with their dead sister’s husband.
The Deceased Wife’s Sister’s Marriage Act of 1907 was passed, and British law finally caught up
with that of the Talmud.

75
 To Remarry, Jewish Widow First Kneels to Custom

Michele Chabin writes:22

A Jewish widow ran into an unexpected snag when she was planning to remarry. A rabbi said
that according to ancient law, she would need to marry her brother-in-law unless he freed her in a
ceremony known as halitza.

Sarah (a pseudonym) was in her mid-20s when her husband died in an accident.

Once her grief had begun to subside, one of Sarah’s friends introduced her to her brother.

"We took it slowly, but eventually I found myself coming out of the darkness," Sarah, who lives
in central Israel and requested anonymity, recalled recently. "Life became sweet again."

In order to marry, the couple, who are not particularly religious, had to register at the stringently
religious Rabbinate, the sole government agency with the authority to grant Jewish marriage
permits.

22
https://womensenews.org/2010/09/remarry-jewish-widow-first-kneels-custom/

76
No civil marriage exists in Israel and non-Orthodox marriages performed in the country are not
recognized by the state.

When Sarah presented the registrar with her late husband’s death certificate, he asked if her
deceased husband had any children. When she said no, he asked whether her late husband had any
brothers. Sarah said yes.

"Then you need to do the halitza ceremony," the registrar told her, she said. "Otherwise you won’t
be able to marry, ever."

With the wedding just weeks away, Sarah felt she had no choice but to agree to perform the ancient
ritual spelled out by the Old Testament. According to the Torah, if a man dies without leaving
children, his brother must marry his widow in a ceremony called yibbum.

To prevent such forced marriages–which reportedly still occur, though very rarely, in highly
traditional Sephardic Jewish communities–most rabbis strongly encourage halitza, in which a
man’s brother relinquishes all claims to his sister-in-law.

In the ceremony, which is meant to be public, the woman kneels before her brother-in-law and
removes a special handmade shoe from his foot. She is then required to spit on the ground next to
him and recite several verses.

"The presumption is that the brother-in-law brings disgrace upon himself and his family by
refusing to marry his brother’s widow," says an entry in the Jewish Encyclopedia.

Ceremony ‘Humiliating’

"It was humiliating for me, and it was humiliating for my brother-in-law," Sarah said of the
ceremony. "It was like something out of a biblical play, only we were forced to do it in the 21st
century. And what if my brother-in-law had insisted on marrying me?"

The plight of agunot–women whose husbands cannot or will not grant them a "get," a Jewish
divorce–is fairly well known because it affects thousands of women.

Halitza impacts far fewer. Each year halitza only affects about one or two Jewish women in the
United States and between 15 and 20 in Israel, estimates the Rabbinate.

Although Jewish law requires all widows in this position to do halitza, some cases fall through the
cracks and the ceremony isn’t performed, said Rivka Lubitch, a rabbinical court advocate whose
articles often challenge the rabbinic status quo.

Rare as it is, halitza continues to evoke feelings of helplessness in the women it touches.

"In halitza, if the brother-in-law doesn’t want to marry his brother’s wife, he has a way out," said
Elisheva Baumgarten, director of the Heller Center for the Study of Jewish Women at Bar Ilan

77
University near Tel Aviv. "At the same time, he can refuse to free the woman, but the woman
cannot refuse to marry the man."

When halitza was first conceived, women throughout the world were considered the property of
their husband’s family.

"Society in general was patriarchal and women belonged to her husband’s family," Baumgarten
said.

Strategy for Control

Marrying a deceased husband’s brother through yibbum was a strategy designed to control fertility,
sexuality, and the family’s assets, whether they be progeny, money, or business ties.

"The late husband’s honor was at stake, as was the family’s continuity. It’s not anything we
feminists should be happy about, even though what the Jews did was appropriate for those times,"
Baumgarten said.

Lubitch, who also works at the Center for Women’s Justice in Jerusalem, said that marrying a
brother-in-law protected some women in the old days.

"Yibbum worked out well for some women who had nowhere to go after their husbands died," she
told Women’s eNews.

But Lubitch said the commandment became a practice that could be used against women by forcing
them to marry against their will.

The custom also creates opportunities for abuse. Although less common than in the past, there
continue to be stories of men who have no intention of marrying their brothers’ widows but extort
money from them in return for their freedom.

Even in cases of goodwill, halitza is fraught with anxiety.

In a 2009 article on the subject, Lubitch described the case of a 60-year-old woman whose first
husband had died 40 years earlier, and who had married and divorced in the interim. When she
went to the Rabbinate to marry a third time, the registrar noticed that she had never received halitza
from her first husband’s brother whose whereabouts she did not know.

When the brother was located, he turned out to be diabetic and his legs had been amputated.

"Since the halitza ceremony requires a husband to wear a shoe and to walk a few steps, a man
without legs cannot carry out the halitza ceremony," Lubitch wrote. "We might assume that the
woman is allowed to marry without halitza. But no. She’s stuck."

78
The woman was spared only because a rabbi was able to determine that the brother-in-law was
impotent, and therefore could not fulfill his conjugal obligation under yibbum to bring children
into the world.

Searching for Alternatives

Lubitch, who is an Orthodox Jew, has urged influential rabbis to find ways to free both men and
women from the burden of halitza.

"I can’t say ‘Do away with it’ because it is in the Torah. What I am urging is for them to find ways
around it, just as the rabbis have done in other matters," she said.

Lubitch offers two potential solutions. The first, called shtar halitza, which she terms "far from
perfect," would at least ensure the widow’s freedom. Just prior to the wedding, the groom’s brother
would sign a document promising to immediately perform halitza in the event of his brother’s
death or incur a heavy penalty.

The second solution harks to medieval times, when some rabbis included a clause in the Jewish
marriage contract (ketuba) stating that yibbum would not be required if the groom died childless.

Such a clause "would not be a violation of Jewish law," said Rabbi Michael Broyde, a judge for
the Rabbinical Council of America and a law professor at Emory University in Atlanta.

Sarah wishes that she and her late husband had requested such a clause in their ketuba.

"It would have prevented a lot of pain," Sarah said.

Leah Berkenwald writes:23

I returned home from my cousin’s wedding Sunday night, happy and exhausted with barely enough
energy to flop onto the couch and turn on the TV. That is how I found myself watching the two
new episodes of TLC’s “Sister Wives,” a reality TV show about a modern polygamous family. I
thinkhttps://forward.com/life/131989/jewish-sister-wives/ the expected feminist response to a

23
https://forward.com/life/131989/jewish-sister-wives/

79
show about polygamy is a negative one, summed in this post on Jezebel: “Sister Wives Talk Like
Soul-Sucking Stepford Zombies.” It’s easy to condemn the show, and “the lifestyle” (as they call
it) but after watching the first few episodes, I found myself pondering polygamy and its presence
in our history as Jews. After all, my biblical namesake was a sister wife.

When it comes to bible study, I am only familiar with the basics. But even I know that polygamy
features prominently in the stories of our patriarchs and matriarchs. The story I know best is that
of Jacob, who married both Leah and Rachel. (This story is expanded in the midrash told by Anita
Diamant’s “The Red Tent.”) Rachel, the woman Jacob married for love, gave birth to Joseph, and
eventually died in childbirth with her second child, Benjamin. Thanks to polygamy, Jacob was
able to father the 12 sons (and one daughter). The sons would then go on to father the 12 Tribes of
Israel with his wife Leah and their hand servants, Bilhah and Zilpah. It’s hard to ignore the
centrality of polygamy, or “plural marriage,” in our own cultural heritage.

I returned home from my cousin’s wedding Sunday night, happy and exhausted with barely enough
energy to flop onto the couch and turn on the TV. That is how I found myself watching the two
new episodes of TLC’s Sister Wives, a reality TV show about a modern polygamous family. I think
the expected feminist response to a show about polygamy is a negative one, summed in this post
on Jezebel: “Sister Wives Talk Like Soul-Sucking Stepford Zombies.” It’s easy to condemn the
show, and “the lifestyle” (as they call it) but after watching the first few episodes, I found myself
pondering polygamy and its presence in our history as Jews. After all, my biblical namesake was
a sister wife.

When it comes to bible study, I am only familiar with the basics. But even I know that polygamy
features prominently in the stories of our patriarchs and matriarchs. The story I know best is that
of Jacob, who married both Leah and Rachel. (This story is expanded in the midrash told by Anita
Diamant’s The Red Tent.) Rachel, the woman Jacob married for love, gave birth to Joseph, and
eventually died in childbirth with her second child, Benjamin. Thanks to polygamy, Jacob was
able to father the 12 sons (and one daughter) who would go on to father the 12 Tribes of Israel
with his wife Leah and their hand servants, Bilhah and Zilpah. It’s hard to ignore the centrality of
polygamy, or “plural marriage,” in our own cultural heritage.

This is not to say that I condone polygamy, especially in its biblical form. The Torah is also full
of incest (Leah and Rachel were Jacob’s first cousins), slavery, and other things we now
understand to be wrong. Judaism’s strength is that it grows and adapts with the times, although we
too have fundamentalist communities that oppress women through rigid adherence to traditional
gender divisions and roles.

The fundamentalist fringe of Mormonism that is spotlighted on TLC’s Sister Wives is of a similar
vein. And by embracing polygamy in a form that mirrors the biblical tradition, in which one man

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marries and father’s children by multiple wives, the “Polyg lifestyle” is fraught with anti-feminist
land mines. Jezebel writes:

It's too bad the Today show host didn't ask Kody or his wives to discuss their beliefs. Because if
you're not familiar with what Kody vaguely calls "his faith" — that is, religious fundamentalism —
then you might think, wow, these people are so edgy! So open-minded! It's just a big happy family!
You might not realize how the extreme, patriarchal belief system belittles and oppresses women.

But after watching Sister Wives, it’s hard to hate or even snark at these people. From what we see,
anyway, these people – the four wives, one husband, and 15 children – are genuine and intelligent
people. For religious fundamentalists, they seem pretty normal; they live modern lives, integrate
into the secular world, and are happy to give their children the freedom to make their own choices
about faith and marriage when they grow up. Despite Jezebel’s categorization as “Stepford
Wives,” the women are open about their feelings, their insecurities, and their personal struggles
with polygamy. They readily admit jealousy and doubt, but also discuss the support, love, and
fulfillment that they gain from the arrangement. If anything, they are complex characters who
made a choice, and like the rest of us, understand that bettering ourselves and working on our
relationships is a lifelong process.

Watching Sister Wives, I started to realize that the benefits of polygamy that the show highlights
are real, but they are not exclusive to polygamous lifestyles. The benefits are the same ones you
would find from any type of communal living where multiple adults contribute incomes to a larger
family unit and multiple adults’ parent the community’s children as a group. (Think: hippie
commune, Walden Two.) I would also argue that there is nothing inherently anti-feminist about
rejecting monogamy. The idea that men are allowed to have multiple partners, but women are not
sexist. You can also argue that the institution of marriage, which traditionally made women the
property of their husbands, is sexist. But polyamory, often dubbed "ethical nonmonogamy," is a
great example of a very feminist-friendly model in which men and women can both have
meaningful and/or sexual relationships with multiple partners. The poly community is, in fact, a
place where you are likely to find some of the most progressive, liberal, and feminist people out
there.

I think it’s important to take the time to think about Sister Wives before we condemn it outright.
While polygamy in this form is illegal, and Kody Brown is now being investigated by the police,
it is possible to gain some insights from this peek into “the lifestyle.” For one, it made me think
about the benefits of communal living among extended families or friends. By examining certain
similarities to the modern polyamorous community, I was reminded that some alternatives to
monogamy can be feminist and progressive. I came to realize that my problem with Sister Wives is
not a problem with the family itself (they are actually quite likeable people), nor is it a problem

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with alternate polyamorous lifestyles. What I do have a problem with is religious fundamentalism
and its adherence to biblical notions of marriage and paternalism. And that applies to Jewish
fundamentalists as well.

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