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Halakhic Criteria for Witnesses to a Marriage

(EH 42:2)

Question:
Some say that witnesses to a wedding must be Sabbath observers, while others say that Sabbath desecration does not disqualify them. What is the opinion of the Va’ad Halakhah on this matter?

Responsum:
The principle that two or three witnesses are needed to determine the statutory validity of various matters is found in the Torah (Deutoronomy 19:15; Exodus 23:1; Leviticus 5:1). The halakhah distinguishes between two types of witnesses: testifying witnesses, who testify before the court to what they saw, and attesting witnesses whose presence validates the act, such as our case of witnesses to a marriage. The absence of two attesting witnesses or the invalidation of an attesting witness renders the marriage null and void, even retroactively.

The Mishnah (Sanhedrin 3:3) lists people who are disqualified to be witnesses, and the Talmud increases this list by adding more people who were considered “outside the pale” of the Jewish community (see Sanhedrin 24b-27b). In the Mishnah of Kiddushin (1:9), the list is broadened to include the ignoramus (am ha-aretz), apparently on the basis of the similarity between the language there and Berakhot 47b. Based on these talmudic sources, many codifiers understood the ignoramus to be disqualified, on the assumption that he did not observe most of the commandments. This approach was part of the rabbis’ attempt to gain the upper hand over their opponents. It also served to lend solemnity and importance to the rabbinic system of marriage.

On the other hand, one cannot disqualify most of the nation, so there are reservations about this ruling. Maimonides, for example, limits the general disqualification by saying that this is only if the person in question keeps no mitzvot at all and is dishonest (Hilchot Edut 11:2-3 and cf. Hoshen Mishpat 34:17). There is a sense that some respect should be shown to the ignoramus as a person and a Jew; otherwise he will withdraw from Judaism entirely and set up his own religion (see Hagigah 22a).

The tension between these two positions continues in the Responsa literature, where the general tendency is to deal with each case of invalidation on its own merits. Considerations such as unavoidable compulsion (oness) were introduced in order to not disqualify Sabbath desecrators (Responsa Rivash, No. 14). Other doubts were introduced to permit testimony, such as, did the person know it was Shabbat (Responsa Bet Yosef, Dinei Kiddushin, No. 2). Later authorities also tried to be lenient in this matter (Responsa Peulat Tzadik, Part 2, No. 195). On the other hand, the Bach (R. Joel Sirkes) thought that a person who desecrated the Sabbath in public was invalid, even without having been declared so by a Bet Din (Responsa Bach, Yeshanot, No. 102).

R. Jacob Ettlinger, who was among the first to respond to the spread of Reform Judaism and secularism, argued that such Jews could be considered valid witnesses because: 1) Sabbath desecration was so common that they thought it was permitted, 2) therefore they are only “close to intentional” (karov le-meizid) in their desecration, 3) the desecration of Shabbat is a sign of apostasy only because it means denial of the Creator and Creation, but a Reform Jew acknowledges his belief by reciting prayers and kiddush, 4) they are like “a child who was captured by the gentiles”, 5) and thus never learned properly the principles of Judaism, 6) they still believe in circumcision, marriage and divorce (Responsa Binyan Ziyon Hahadashot, No. 23). Rabbi Ettlinger apparently bases himself on the Shulkhan Arukh (Hoshen Mishpat 34:24), which distinguishes between transgressions which are widespread, and thus the transgressor is considered unintentional (shogeg), and intentional transgression.

In the 20th century, Rabbi Hayyim Ozer Grodzinsky quotes the opinion that since most Jews desecrate Sabbath and do not know that by so doing they are invalidating themselves to be witnesses, they can be considered valid witnesses. One is only invalid if he commits a sin knowing that that particular transgression invalidates him as a witness (Ahiezer, Part 3, No. 25). Rabbi Eliezer Waldenberg stresses that the invalidation is for one who desecrates Shabbat in public, and he raises doubts as to when this category applies (Tzitz Eliezer, Part 8, No. 15, Kuntress Meshivat Nefesh, Chapter 5). Rabbi Ovadiah Yosef rules that when there are doubts in such matters, we act with leniency (Responsa Yabia Omer, Part 1, Yoreh Deah, No. 11).

There is, however, an opposite view in modern times, which is particularly applied to invalidating Reform and Conservative Jews as witnesses (see Minhat Yitzhak, Part 2, No. 66; for Conservative Rabbis in particular, see Iggrot Moshe, Even Ha-Ezer, Part 2, No. 26). Rabbi Binyamin Silber (Az Nidberu, Part 9, No. 55) disqualifies all members of non-religious kibbutzim. The tension in modern times can be illustrated by the decision of Rabbi Ouziel in a case in which relatives of a woman sought to annul her marriage on the grounds that the witnesses were found to be public Sabbath desecrators. Rabbi Ouziel ruled that since today most Jews do not keep the ritual commandments, it is wrong to think that not keeping them discredits the truthfulness of the witness, as was the assumption in the past. If the court thinks that the person is honest, and not prone to lie for pleasure or profit, the testimony is valid. However, other rabbinical courts, in the same instance, have ruled the opposite.

As Conservative rabbis, we have to be sensitive to not disqualifying entire groups of people, since there are those who seek to disqualify us as a group.

In conclusion, in my opinion we should a priori prefer witnesses who observe Shabbat. However, if there are no such witnesses available, it is possible to accept witnesses who keep some commandments, are respectable citizens and are considered honest individuals. Only people who declare that they object to religious ritual and who do not respect the marriage ceremony will be considered invalid a priori to witness a wedding. In any case, the rabbi performing the wedding must explain to the witnesses what they have to look for and to make sure that they understand this and agree to undertake this task faithfully.

Rabbi Michael Graetz
Approved Unanimously

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