Agunot, DNA Evidence, And Shooting Down Hijacked Planes: An Interview with Rabbi Michael Broyde,Elliot Resnick, Jewish Press Staff Reporter

Agunot - "chained women" - are of two kinds. The first, which has received considerable community attention in recent years, concerns a woman whose husband refuses to grant her a religious bill of divorce.

The second, more "classical" kind of agunah - a woman who cannot remarry due to lack of confirmation of her husband's death - is relatively uncommon nowadays. Unlike their forbearers in the Middle Ages, contemporary Jewish men do not generally die while traveling abroad with no word getting back to their wives about their status.

Unfortunately, in the aftermath of September 11, 2001, this second type of agunah became the focus of renewed rabbinic study as several Jewish women could not initially verify with certainty that their husbands had indeed died when the Twin Towers collapsed on that morning of terror 10 years ago.

Now, Rabbi Michael Broyde - a professor of law at Emory University - has edited a book that deals in large part with how the Beth Din of America dealt with 10 such agunah cases that were presented to it. Called Contending with Catastrophe: Jewish Perspectives on September 11th, the book also contains a section on Jewish attitudes toward suffering.

The Jewish Press: As a member of the Beth Din of America, you were intimately involved in investigating agunah cases in the wake of 9/11. What was the most fascinating discovery you made during these investigations?

Rabbi Broyde: I would say the ease with which people can be tracked. For example, with the government's assistance, you can see every time a person uses his MetroCard [which, in fact, helped the Beth Din of America place a missing man at the World Trade Center at the time of the attacks].

We would routinely encounter situations in which a husband called from the World Trade Center saying, in essence, "I'm stuck here and can't get out." One of the halachic issues involved was: How do we prove that the husband was where he said he was? The answer is that you can identify locations of a cell phone call without much difficulty, particularly in cooperation with the government.

Several articles in the book discuss the proposition that a woman can remarry after an extended period of time if her husband disappears without a trace. Can you elaborate?

In pre-modern times, people disappeared but were still alive. However, Rabbi Eliezer Verdun, almost 1,000 years ago, said maybe nowadays when we have better communication, the fact that many years have gone by should allow us to say he's dead because if he were alive he would've communicated with us.

Even though most Rishonim rejected that view, the Terumas Hadeshen, writing 500 years ago, said nowadays we have even better communication; maybe Rabbi Eliezer Verdun is correct. The Chasam Sofer, writing 175 years ago, said nowadays, when we have the telegraph and trains, this position [rings all the more] true. Rav Moshe Feinstein made this same point with regards to post-Holocaust agunot, and Rabbi Nota Greenblatt of Memphis, Tennessee [a noted posek] observed that in the year 2001 this is even more true.

Total disappearance is stronger proof of death now than it ever was because communication has grown stronger and stronger, and one's ability to disappear has grown harder and harder.

Some of the authors in Contending with Catastrophe recount that several rabbis deliberated at length concerning the reliability of DNA evidence in identifying dead bodies or body parts (with a few even coming to the conclusion that it cannot be relied upon exclusively). Isn't the reliability of DNA evidence a well-known fact that was settled by scientists and statisticians a long time ago? How is it that rabbis in 2011 are spending their time on this matter? Don't their actions give ammunition to those Jews who argue that rabbinic leaders are behind the times?

Technology is almost always ahead of law, and the same is true of Jewish law. It takes poskim a while to digest developments: how accurate is DNA evidence, can it be faked, is it flawless?

Our sense is that DNA evidence is valid, but this is the first time we encountered it, so it took us a while to look closely to make sure that the kind of evidence you get from a medical examiner fits within the framework of reliability.

The book contains an essay by Rabbi J. David Bleich, who argues that Jewish law would prohibit the American government from shooting down a hijacked plane which is about to crash into a skyscraper full of people. This conclusion seems strange. Does halacha really defy common sense and require a government to sit on its hands and watch as a plane with several dozen people crashes into a building with several thousand?

Rabbi Bleich's essay represents his view that the sanctity of innocent life - not in wartime - is very profound. Many other halachic authorities adopt the view that at least in wartime one certainly can kill innocent people to save the lives of the multitudes.

The second half of Contending with Catastrophe contains essays by such noted Modern Orthodox thinkers as Dr. David Shatz, Rabbi Dr. Norman Lamm, and Rabbi Dr. Aharon Lichtenstein. Can you share something from this section?

Sure. In his essay on halachic responses to tragedy, Dr. Shatz highlights the fact that historically halacha doesn't ask: Why does tragedy happen to me? It instead asks: How we are supposed to respond to tragedy?

On page 220 he quotes a paragraph from a letter by [Rav Joseph B. Soloveitchik], which I think is very important and moving. [It reads, in part]:

"Man should not ask: Why evil? He should rather raise the question: What am I supposed to do if confronted with evil; how should I behave vis-à-vis evil? The latter is a powerful challenge to man and it is the duty of man to meet this challenge boldly and courageously. Suffering, in the opinion of Judaism, must not be purposeless, wasted. Out of suffering must emerge the ethical norm, the call for repentance, for self-elevation. Judaism wants to convert the passional frustrating experience into an integrating, cleansing, and redeeming factor."

Switching topics: You have been criticized recently for an article you wrote in which you halachically justify - in the form of a limud zechus - the many Orthodox Jewish women of recent generations (some of whom were married to great rabbinical leaders) who did not cover their hair after marriage. Can you comment?

I think it's unhealthy to live in an environment in which we consider the conduct of past generations of Orthodox women to be improper. I wrote [that article] so as to explain the conduct of previous generations of religious women, and I stand by everything I wrote.

Why can't a person think that his ancestors were wrong?

Wrong is okay, but without any foundation at all in Jewish law is very harsh. I think we're descendants of an Orthodox community that's been here for many years whose conduct built our community and upon which we reside, and we should view them in that light. We shouldn't flippantly assume that their conduct is without any foundation in halacha, and we should search the halachic literature far and wide to see if we can find any foundation in halacha for their conduct.

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