Rav Hayim Leiter
This Circumcision Is Not That Complicated
I have to thank Rav Benyamin Tabi for his response to my article on Brit Milah of the child of a mixed marriage. He has challenged me to go back to the sources and clarify my stance. As with most debates in our tradition, the argument we’re having is not a new one.
Just to be clear, I am not saying, nor are the sources saying, that anyone should encourage intermarriage. The responsa are an attempt to answer real problems we have faced throughout our history. Every question is different and should be taken on a case-by-case basis. Mohalim should consult poskim when faced with difficult questions and every mohel must take responsibility to inform the couples he works with of the ramifications of their decisions. It’s also imperative to speak with both parents and make sure they are on the same page and both want to circumcise their son.
While I grant that Rav Klishar’s position went further than others, there are still plenty of poskim who at least permit Britot for the child of a mixed marriage. The classic case discussed is converting a son of a non-Jewish mother who herself is not converting. The list of poskim who permit such a Brit Milah is far from short and includes such names as the Ish Matzliach and HaGaon Maharam Shik, just to name a few.
The Mateh Levi, Rav Mordechai HaLevi Horowitz, also discussed the topic at length. He debates how a Beit Din should respond when faced with this problem. Some were proposing the Beit Din decree that the mother either convert or that the father divorce her before they allow a circumcision. The Mateh Levi concludes that each individual court has to decide how to proceed. There should be no universal rule on the matter. Each court has intimate knowledge of the father and what will keep from pushing him farther away. He states:
"שאם ירצו בית דין יכולים לגזור אבל לא מחויבין לגזור ושיהיה אסור למול את הבן אינו מוכח בשום אופן.״ (שו״ת מטה לוי חלק ב, סימן נ״ה)
“That if the Beit Din wants, they can make a declaration but they are not obligated to decree. That it’s forbidden to circumcise this child is not at all proven.” (Respona Mateh Levi, Vol. 2, 55)
This is certainly a strong support for performing a circumcision this nature. Rav Horowitz also mentions that it was common for mohalim to circumcise children such as these in Germany at the time. He actually ruled on the matter multiple times before asking a colleague for his imprimatur.
Rav Michael Peretz, the head of Kehilat Tov in Mexico, also rules on the issue of circumcision and mixed marriage in his book on conversion Otzer Piskei Geirim. The subheading of the relevant Halacha actually reads: “It seems that there is room to be lenient and to circumcise a baby who’s born to a Jewish man from a non-Jewish woman”. He opens by interpreting the suggiah in Gemara Avodah Zara, 26B. Rav Peretz writes:
״ומבואר ש(למול) לשום גר מותר. לשום רפואה אסור. אבל לא כתוב מה הדין במילה בן הנולד לישראל מנכרית, שאין זה לשם גירות. וגם לא לשם רפואה אלא רצונו להידמות למנהגי ישראל. ועל כן מל את בנו. והוא טעם ׳חדש׳ לרצונו במילה.״ (אוצר פסקי גרים סימן כה)
"And it’s explained that (to circumcise) for the sake of conversion is permitted. For the sake of healing is forbidden. But the ruling for a child born to a Jewish man and a non-Jewish woman is not written, because this isn’t for the sake of conversion, and it’s not for the sake of healing, rather his desire is to do things similar to Jewish traditions. And therefore, circumcise the child. And this is a new reason for his desire for a circumcision.” Otzer Piskei Geirim, 25)
It’s safe to assume from Rav Peretz’s language that he is going further than the aforementioned poskim. Much like Rav Kalisher he is permitting a case where both the mother and child are not converting.
In addition to Rav Peretz, Rav Ovadia Yosef also holds that doing a circumcsion for the child of a mixed marriage is permissible. He bases his ruling on the Shulchan Oruch, which states that the circumcision of an intermarried couple cannot be done on Shabbat. He states:
"ומשמע דבחול מיהא מותר, אף על פי שהוא כגוי לכ"ד. וכן מבואר במקור הלכה זו בירושלמי (פ"ב דיבמות ה"ו)." (שו"ת יביע אומר חלק ב - יורה דעה סימן יט)
“It follows that during the week, however, it’s permissible, despite the fact that he is completely a non-Jew. And thus it is explained in the source of this ruling in the Talmud Yerushalmi (Yivamot ch. 2, Halacha 6).” (Respona Yiviya Omer, Vol. 2, Yoreh Deiah, 19)
It is important to note two things from Rav Ovadia’s language. First, he completely omits any mention of conversion. Second, he uses the phrase “he is completely a non-Jew”. It’s clear that this phrase is talking about a circumcsion that is not for the sake of conversion because all converts are non-Jews before they convert. To say such a thing when speaking about a Brit Milah for conversion would make no sense. The absence of the term ‘conversion’ and the use of this phrase indicates that Rav Ovadia’s position is very close to that of Rav Kalisher and Rav Peretz. He may not state that it’s advisable, as Rav Kalisher does, but he certainly deems it permissible.
When it comes to holding like Rav Kalisher, Rav Uziel, the first Cheif Rabbi of Israel, is very much in line with him. You can hear echos of the Tzvi LaTzadik in his choice of language. He states:
״אך כבר קדמה הוראה הלכה למעשה, לקבל גרות האיש או האשה קודם או אחר שנשאו, משום שאין בידינו למונעם מעברה חמורה זאת, וכמו שנזכר בדברי פוסקים אחרונים שצדדו להתיר זאת משום בחירת הרע במעוטו, וכדי שלא ידח ממנו נדח. בנוגע לבניה של הנכרית, שהיא אינה רוצה להתגייר, או שאנו איננו רשאים לקבלה, כגון נכריה הנשאת לכהן, לא מצאתי בזה דבר מפורש בתלמודין, גם בזה אני אומר וכן כתבתי בתשובתי הקודמת, וזאת חובת בית דין – לחייב את האב שהוא נשוי נכריה בכל דרכי השפעה (לפי שיותר מזה אין בידינו כלום) לגרשה ואז ישלח אותה ואת בניה, אבל במקרה רע ומר כזה, שלא ישמע לדברי בי"ד ולא יפרוש מאשתו הנכריה – הוא שכתבתי לחייבו למול את בנו בשמיני שהוא חל בחול. ולכן הנני מפרש דברי שלא עלה על דעתי לומר שמילה זאת תעשה בחגיגות וברכות המילה ככל בן ישראל, שהרי ילד זה כל זמן שלא התגייר כדין וכהלכה, הוא גוי גמור, ואין מצוה במילתו, ולכן אסור למולו בשמיני שחל בשבת, וכיון שכן אין כאן גם שמחה, אלא להיפך, צר ויגון שבאנו לידי מדה זו.״ (משפטי עוזיאל חלק ז, סימן יט)
But there’s already been a legal precedent in practice, that we should accept the man’s conversion or the woman’s before or after they marry, because we don’t have the power to prevent them from doing this serious transgression. And just as it’s been stated in the words of other poskim who have sided to permit this because of the evil decision in it’s minority, and in order to not ‘push away those who are pushed away’. Regarding the children of the non-Jewish woman who does not want to convert or that we are not willing to accept for conversion, such as for a non-Jewish woman who’s married to a cohen, I have not found anything explicit in the Talmud. Also about this, I say that I wrote on the matter in my earlier responsum, and this is the requirement of the Beit Din – to obligate the father who has married a non-Jewish woman with all influence we can (because beyond this we have no influence) to divorce her and then send her and her son away. But in a tragic situation where he won’t listen to the Beit Din, and separate from his non-Jewish wife –– it is this case which I wrote to obligate him to circumcise his son on the eighth day that falls on a weekday. And therefore, I’ll expound on my words, that it did not rise in my mind to say that this Milah, you should make a celebration and bless the circumcision like every other Jewish son. That behold, this child as long as he hasn’t converted according to law, is a complete non-Jew and there is no command to do his Milah. Therefore, it’s forbidden to circumcise him on Shabbat and because of this there is no levity here, rather the opposite, pain and grief have come to us because of this. (Mishpitei Uziel, Vol. 7, Siman 19)
His use of the verse “pushing off those who are pushed off” indicates his allegiance with Rav Kalisher. Even though he’s not happy about the situation, in some ways he goes even further than Rav Kalisher because he doesn’t just permit it, he doesn’t just say it’s a good idea, he actually obligates the father to provide a circumcision for his son.
The quote that Rav Tavdi brought in his response to my article needs additional clarification. Rav Tavdi attributed this quote to Rav Kalisher:
"כי עד עתה לא פלפלתי רק להלכה ואם תבוא מעשה לידי לא אסמוך על דעתי כמובן מעצמו"
“Up until now I only debated the matter for halacha (in theory) and if a practical matter came before me I would, of course, not rely on my opinion alone.”
If Rav Kalisher had said this quote it would be almost impossible to rely on his position. But this isn’t correct. Rav Kalisher’s responsum appears in his conversation with Rav Azriel Hildesheimer. The two wrote each other letters on our topic for some time. Rav Hildesheimer did not agree with Rav Kalisher and believed you can only do a circumcision for the son of a non-Jewish woman when the child is converting. In his last letter, Rav Hildesheimer wrote the quote in question and not Rav Kalisher. Rav Tabdi was right to ask what is the halachic scope of Rav Kalisher’s position. He himself wanted other rabbinic figures larger than him to check if his stance was correct. But it is imperative to note that Rav Kalisher never outright stated that his stance was not intended as Halacha L’Maaseh. Therefore, he is still one of the strongest sources in support of doing a Brit Milah for an intermarried couple.
All of the conversations about mixed marriage Britot occurred in different times and in different places. These nuances led to the almost complete Ashkenasi/Sefaradi split. In the Sefardi communities, the rabbis saw doing the circumcision as the way to keep the family in the fold, while Ashkenazim, the opposite. The social context needs to be taken into account in our day age as well. In Israel, where intermarriage is not as rampant as in other parts of the world, I would argue that we should take a page from the book of the Sephardim. These Britot help keep the children and their families included in the greater Jewish community.
The argument at hand is not only a long-running one but is also an example of theory versus practice. My teacher, Dr. Ari Greenspan tells a story of Israeli grandparents who begged him to come to Bulgaria to circumcise their grandson who was born there. The case was identical to our question: the father Jewish and the mother not. The couple was so disconnected they refused to have the circumcision done for conversion. Despite his trepidation, Dr. Greenspan agreed to do the Brit Milah. Far from the ideal, he did the procedure without blessings and only made a blessing on a cup of wine. To his surprise, 12 months later he was informed that the mother was in a conversion program.
Just as Rav Kalisher taught, we cannot tell the future. All we can do is leave an opening and pray that the family comes into the greater community. But it’s certain that if we “push away those who are pushed away”, then the story will end there.
This first appeared here