Mamzerim: Don’t Ask, Don’t Tell

In 1912, Shai Agnon, the famous Israeli Nobel laureate in literature, wrote his first short novel “And the Crooked Shall Be Made Straight”. In this novella, Agnon writes of a man known as Menashe, who becomes reduced to poverty after his livelihood is taken away from him. Facing no other choice, he leaves his beloved wife for some time so that he may travel to other towns and beg for money. In his absence, he is mistakenly proclaimed dead, and his wife, believing that she is a widow, remarries another man. Soon after, Menashe returns unrecognized to his hometown, dejected from his failed attempt at trying to make money through begging. To his great shock, he finds out that not only has his wife remarried, but that she has also had a child with her new husband. Filled with grief, Menashe realizes that if he reveals his true identity, not only will his wife be accused of adultery (unintentional as it was on her part), but that her child will have the status of a mamzer, as his wife was still married to Menashe when the child was conceived through another man. Rather than ruin his wife’s happiness and make this child’s mamzer status known, Menashe goes to the town’s graveyard and eventually dies there as an unknown beggar.[i]

Although in popular parlance the word mamzer is thought of derogatively as an “illegitimate child”, its halakhic meaning refers to the circumstances surrounding the mamzer child when he is born. A child may become a mamzer if he is born from a union between a married woman and a man who is not her husband, or if he is born of a forbidden union which may be punishable by karet. The Mishna relates the following:

In a case of a woman who cannot have kiddushin with a specific man, but she may have     kiddushin with other men, the offspring is a mamzer. And which case is this? When a person    cohabits with any of the forbidden relations in the Torah [ii].

If a man and a woman who cannot have a valid marriage under Jewish law have a sexual relationship and the woman gives birth to a child due to their encounter, this child is classified as a mamzer.[iii]

The Torah commands us that a mamzer “shall not enter into the assembly of God; even to the tenth generation shall none of his enter into the assembly of God”.[iv] Although the mamzer is forbidden from marrying someone who is born a Jew, he is permitted to marry a convert[v] or a fellow mamzer.[vi] For all intents and purposes, a mamzer is a full-fledged Jew. He may be given an aliyah during the reading of the Torah,[vii] and he may even inherit his father’s estate upon his father’s death.[viii]  The famous Mishnah in Horayot writes that: “A mamzer who is a scholar takes precedence over a Kohen gadol who is an ignoramus”.[ix] However, a mamzer is prohibited from marrying into the “assembly of God”. Although a mamzer is expected to live a Torah lifestyle, he is excluded from the Jewish community in a way that makes him into a second class citizen.

Our sages have attempted to explain the reasoning behind the mamzer law. They considered the possibility that mamzerut was instituted in order to act as a deterrent for the adults who were willing to violate severe prohibitions and engage in illicit sexual relationships. In Tractate Yevamot, R. Akiva argues that the mamzer status should apply to any child born of a prohibited union which would result in the participants receiving lashes (in rare scenarios) or kritut as a punishment. However, the sages, represented by R. Yehoshua, declared that a child could only be labeled as a mamzer if the parents’ forbidden relationship would result in their liability for the more severe punishment of kritut. Since the punishment of the mamzer status is linked to the severity of the sexual prohibition, it is possible that the rabbis believed that the mamzer law was instituted to uphold the sanctity of the family in Judaism and the value of fidelity in general.[x]

The Sefer Hachinuch further states that the mamzer law was not only an act of protection, but also an act of magnanimity from God to His people:

At the root of the precept [of mamzerut] lies the reason that the engendering of a   mamzer is very evil, occurring in uncleanliness, abominable thought, and sinful counsel. And there is no doubt that the nature of the father is hidden (latent) in the son. Therefore,     in His kindness, the Eternal Lord removed the progeny of holiness from him, even as He            separated us from every evil thing”.[xi]

The Sefer Hachinuch claims that by making mamzerim unable to marry into the “assembly of God”, God is compassionately saving the Jewish nation from these dangerous mamzerim and preventing his people from becoming exposed to such impurity and evil.

In the Talmud, Rav Huna is also recorded as stating that a mamzer “does not live [long enough to have children].” Rabbi Zeira clarifies this statement and says that while a publically known mamzer lives, an unknown mamzer does not live. Rashi comments on this exchange and writes that God does not allow an unknown mamzer to stay alive, in the event that the mamzer will marry a regular Jew. However, in the case of a publicly known mamzer, there is no concern of a regular Jew accidentally intermarrying with the mamzer.  In exchange for making his status known to the congregation, the life of a mamzer is spared. The Gemara continues the discussion on mamzerim, and relates that there was once an unknown mamzer who lived in the neighborhood of Rabbi Ami. Rabbi Ami publicly announced that this person was a mamzer, and the mamzer wept. But Rabbi Ami said to him, “I have given you life!”.[xii] Rabbi Ami believed that he had done a great kindness to this mamzer. Aside from protecting the Jewish community from a great danger, R. Ami assumed that he had also enabled the mamzer to live.

Although these rabbis believed that for the benefit of not only the mamzer but also for the Jewish community a mamzer’s status should be made public, the majority of our Sages were actually willing to bend over backwards in order to refrain from declaring a child to be a mamzer. In a revolutionary move, R. Yose once declared that in the messianic era, all mamzerim will be made pure and will be allowed to marry into the “congregation of God”.[xiii] In a reference to R. Yose’s statement, Rabbi Yitzhak said: “The Holy One, blessed be He, acted charitably with Israel, for a family that became assimilated has become assimilated”.[xiv]

Rav Chaim Navon, a community rabbi in Modi’in and teacher at Migdal Oz, explains the tremendous halakhic significance and innovation contained with Rav Yitzchak’s statement  and writes the following:

“The law that ‘a family that has become assimilated is assimilated’ – that is to say, if a family of mamzerim became mixed up in Israel, its legitimacy may not be contested – is unprecedented in Halakha. No one would think to say that ‘a pig which has become assimilated is assimilated’… moral considerations brought Chazal to try and minimize the scope of the prohibitions pertaining to mamzerim as much as possible.” [xv]

It can be inferred that R. Yitzchak believed that one should not take it upon himself to clarify who is pure and who is impure; rather, we should leave people alone, and in the messianic era everyone who is impure will be made pure. On the basis of this ruling, R. Moshe Isserles writes in his notes on the Shulkhan Arukh that if someone becomes aware of a person’s impurity which would disqualify him from the ability to marry all Jews, he is not permitted to disclose it to others.[xvi] Anyone not publicly known to be a mamzer is assumed not to be one.

In the case of a woman whose husband went overseas and gave birth 12 months after his date of departure, the rabbis judged that the woman’s husband was the biological father, and that the child was fit to marry a regular Jew. Our sages insisted that it was possible for a baby to linger in the womb 3 months after it finished developing. Thus, they established that if a woman gave birth to a child within 12 months of cohabitation with her husband, the child’s father was presumed to be her husband.[xvii] The rabbis additionally ruled that since most of a married woman’s acts of cohabitation are assumed to be with her husband, the children of a known adulterous woman are not mamzerim.[xviii] In fact, our sages even went so far as to declare that the parents themselves should not be believed regarding the mamzer status of their child. That is, if the parents explicitly state that their child is a mamzer, in the great majority of cases their testimony is rendered invalid under Jewish law.[xix]

This willingness to turn a blind eye to blatant truths is not only astounding but also unprecedented. It is likely that our sages were greatly disturbed at the thought of punishing a child for the deeds of his parents. The mamzer law seems to contradict a basic value in Judaism. The Torah states that, “The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers; every man shall be put to death for his own sin”.[xx] Despite this teaching, the law of mamzerut punishes a child for a sin which he was not responsible for, for which he had no control over, and for which his parents committed. Due to a fault of his parents, their innocent child must pay a terrible price. Chazal was well aware of this disparity, and with much difficulty tried to grapple with and come to terms with the Torah law. Behind the legal disputes present in our Jewish texts is a great moral debate. When it came to understanding God’s will, our sages were motivated by their own ethical considerations and limited the applicability of the mamzer law in order preserve the marriageability of potential mamzerim. Although the rabbis did not nullify the laws of mamzerut that are mentioned explicitly in the Torah, they did their best to limit their interpretation and decrease the number of mamzerim.

The issue of mamzerut has become especially applicable in modern times, when civil marriage and divorce are easily accessible.  It is possible for a married woman to become divorced under civil law and then remarry under civil law without obtaining a get from her first husband. Any children born to her from her second marriage would be considered mamzerim, as she conceived these children with a different man while she was still halakhically married to her first husband. Cases like these are becoming more commonplace, and have caused much strife in the Jewish world in regards to the most optimal way to deal with such serious and difficult situations. The Reform community views the mamzerut law as archaic, and does not condone it. The Conservative movement prohibits its rabbis from accepting any evidence of mamzerut, thereby rendering the mamzer law as irrelevant. The Orthodox community will not disregard what is so blatantly stated in the Torah, yet many view the mamzer law as a moral quandary. While Orthodoxy still upholds the concept of mamzerut, Orthodox rabbinic figures will generally follow in the steps of our Sages and go to great lengths to avoid labeling someone a mamzer. In cases where the woman only obtained a civil divorce and then gave birth to children with her new partner, the rabbis will often try to prove that the first marriage was never valid under Jewish law, even when the evidence overwhelmingly suggests otherwise.[xxi] Maimonides once wrote that, “the judgments of the Torah are not meant to bring vengeance into the world, but are intended to secure compassion, kindness, and peace in the world”.[xxii]  For many rabbis, a deep sense of morality has guided them through the halakhic development of the mamzer law. Their actions have helped enable these children to marry regular Jews, and due to our rabbis’ efforts many have been saved from living a life of social exclusion and untold human suffering.

Michal is a Junior at Stern majoring in Biology  and is a staff writer for Kol Hamevaser.