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Rabbi Ysoscher Katz
Lindenbaum Center for Halakhic Studies
Erev Shabbat Kodesh Parashat Toledot, 28 MarCheshvan 5775, New York
Dear Rabbi Fox:
While no further proof is necessary, I applaud your essay and I offer this concurring opinion.
It appears clear to me that a woman who prefers to immerse in a mikveh for the purposes of her conversion
without the presence of a male in the immersion room itself, and in place of this, requests that a woman be
present inside (the immersion room) and the members of the Beis Din (Rabbinic Court of Conversion) stand
outside in an adjacent room, she has, in our days, a firm basis on which to rely.
The simple meaning of the sugya (Yevamot 45b) is that immersion for the purposes of conversion is reliable and
acceptable without the presence of the Rabbinic Court in the immersion room. Rav Asi was prepared to permit a
female non believer to wed a male of the Jewish faith based on the condition that her immersion as a
menstruating woman would count for the purposes of conversion as well, even though (as is written in Tosafot,
ibid, s.v. mi) “it is not the way of women to bring a man with them at the time of immersion.” And despite the
fact that this runs roughshod against the law that “a convert requires three for the word mishpat (adjudication) is
expressly written (Ibid, 46b and in other places).” And also within the context and meaning of the Gemarah
(Ibid, 47b) that three are required for the crux of the immersion (“three place her in a seated position in the
water”); the Gemarah here is an actual incident (Ma'ase Rav) and, in general, an actual incident has legal
precedence over a merely stated statute. This ostensibly would be the simple conclusion of the reader, to show
preference to the story of Rav Asi over other scenarios or statements due to it being an actual incident.
All of this is important, understandably, from a theoretical perspective, but, in practice, there is not much
importance because all the commentators and all the Poskim (decisors) attempted to reconcile the conflicting
sections of the Gemarah and to present a compromise approach, that which requires three present at the
immersion and to, nonetheless, permit conversion without the presence of the Rabbinic Court in the immersion
room itself.
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Rabbi Ysoscher Katz
Lindenbaum Center for Halakhic Studies
The experiment to match and reconcile the two sugyot (sections of Talmudic text) can be divided into two
fundamental approaches in the writings of the Rishonim (primary commentators):
1.
The view of the Scholars of Ashkenaz (Tosafot, Rosh, etc.) and those who follow their approach is that
the actual incident of Rav Asi (on 45b) is indeed the halakhah; that immersion for the purpose of conversion
does not require a Rabbinic Court. And those gemarot which posit that she DOES requires a Rabbinic Court
were only said “at the outset (l’khathilah), it is more preferred” (Tosafot, Yevamot, Ibid, s.v. mi), or that the
requirement for the presence of the Beis Din is merely an ideal (“le’mitsvah”-Tosafot, Kiddushin 62b , s.v. ger),
or “to fulfill the mitzvah in a par excellence fashion.” (Rashba, Kiddushin, Ibid). From a close reading of their
language it appears clear that the law that necessitates a Beis Din for immersion is not a fundamental element of
the law, and it is simply a matter of “preference” or “mitsvah par excellence.”
Ostensibly, it appears slightly that this is also the view of Rashi in Sotah (12b, s.v. lirhotz). He understands the
immersion of the daughter of Pharaoh as an immersion for the purposes of conversion even though she did not
do so in the presence of a Rabbinic Court. A clear proof, as can be understood, is not apparent here, for this
occurred before the giving of the Torah, and the context is Agaddic and not halakhic. Nonetheless, that which
Rashi in his own fashion explains the “washing of one’s idols” as a category of conversion says that there is
room to think that, fundamentally, his opinion is that an immersion like this- where she dunks herself alone- is a
valid immersion.
2.
The second opinion is the position of the Rif and his associate(s). According to their opinion, not
satisfying the requirement to have the Beis Din present for the immersion hinders the conversion even in a case
of “after the fact,” and immersion without three (judges) is valid only in a situation where the female convert is
already married.
These are the two fundamental opinions in the Rishonim.
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Rabbi Ysoscher Katz
Lindenbaum Center for Halakhic Studies
In point of law, however, there is a variety of positions among the poskim and the Achronim (later
commentaries):
The simple understanding of the Shulhan Arukh is that the position of the Mechaber (Rav Yosef Karo), (268:3)
is like the Scholars of Ashkenaz, that immersion needs three only at the outset/apriori. And even though the
Mechaber also cites afterwards the position of the Rif, all of the guide books on how to read the Shulchan Aruch
say that in a situation where an anonymous position is cited followed by a disagreement, the view of the
Mechaber is in consonance with the first and anonymous opinion [In addition, see the Responsa of Sha’arei
Tsedek ( Orah Chayyim, no.80) and Levushei Mordekhai (Yoreh De’ah, Chapter 162), both explicitly state that
the Mechaber here agrees with the anonymous position, that three are needed just a priori.
According to this approach, the law that immersion fundamentally requires three is just a stringency and a
“mitsvah par excellence” requirement- perhaps a category of embellishment of the mitsvah. And despite the fact
that the Mechaber sides with the anonymous position to require three a priori, due to the fact that the source of
his position is based on the Tosafot and the other Scholars of Ashkenaz, and they wrote explicitly that a priori,
in our case, is simply a matter of preference, reluctantly we are forced to say that when the Mechaber writes to
mandate three a priori, his intention is also to mandate the presence of a Beis Din consisting of males as a matter
of “preference” and “mitsvah par excellence.” And therefore, it is clear according to the position of the
Mechaber, that is essentially the position of the Tosafot, there would be room to be lenient to allow a woman to
immerse for the purposes of conversion without the presence of men in the immersion room, at the very least at
times of pressure or in a place of necessity.
But it appears that there is no need for this involved discussion, and that in reality, also according to the position
of the Rif, there is room to be lenient to not mandate that the members of the Beis Din be present in the
immersion room.
The Ramban (Ibid, s.v. mi lo) in explaining the unique position of the Rif, writes: “Perhaps we require
acceptance (of the yoke of mitsvot) literally at the time of immersion and everything is in the presence of
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Rabbi Ysoscher Katz
Lindenbaum Center for Halakhic Studies
three.” If one pays attention to the words of the Ramban, it appears clear that also according to the Rif the
requirement of three during the time of immersion is not a law appertaining to the immersion itself [that the
immersion does not take effect without the presence of three judges], but the reason to require three also at the
time of immersion is because of a unique newly fangled idea that somehow the female convert must accept the
mitsvot twice, and one of those times must be at the time of immersion.
There is no doubt that according to this (approach), in accordance with the Ramban’s understanding of the Rif,
the three need not be required to be in the mikveh room. For, as long as the members of the Rabbinic Court
teach her the leniencies and stringencies in an adjacent room immediately before she enters to immerse, the
rabbis fulfill in this the mitsvah of immersion a priori, even according to the opinions of the Rif and his
associate(s) as their role is not to assure that the immersion occurred as required, but their presence there is
required to review with her again the process of acceptance of the mitsvot, an act which can be done outside the
immersion chamber.
And, even though the Mechaber (268:2) wrote: “and she is reminded of some of the lenient laws and some of
the stringent laws, as she sits covered in the water, and afterwards she immerses in their presence and they
turn their heads away and exit.” It is clear beyond any doubt that the description here is procedural and not an
halakhic dictate, and that according to the purpose of the law, based on how the Ramban understands the
position of the Scholars of Spain, there is no need for the acceptance of mitsvot for the second time to occur
while she is in the water, actually in the middle of her immersion.
In the meantime, therefore, we have the position of the Rif according to the understanding of the Ramban, that
three are not required at all in the immersion room, and, the view of the Tosafot and those who follow their
opinion that while the presence of three is required during the course of the immersion, but only a priori and in
order to fulfill the mitzvah in a “par excellence” fashion.
According to my humble opinion, these words of the Ramban where either concealed or unknown to the Maran,
Rav Ovadiah Yosef z”l, in Yabi’a Omer (Part 1, Chapter 19). It is not my intention at this juncture to expound in
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Rabbi Ysoscher Katz
Lindenbaum Center for Halakhic Studies
any length, but it is clear to me that if Maran had seen these words of the Ramban he would not be puzzled at
the words of the Mechaber, why he sided with the position of Tosafot against the positions of the Rif and the
Rambam (at least pertaining to the role of the Rabbinic Court in the immersion).
All the above would be the rule if we were to merely follow the Rishonim and the Shulchan Arukh.
In actuality there is disagreement among the Achronim about this issue. Maran haRav Ovadiah (Ibid), Rav
Moshe Feinstein (Igrot Moshe, Yoreh De’ah, Part 2, no. 127) and the Minhat Yitzchak (Part 4, no. 34) are
stringent, and according to their respective opinions, the judges must be physically present in the immersion
room. [It is difficult to ignore the discomfort of the Poskim in this decision, in particular Rav Moshe z”l, who
repeatedly says at the outset of his teshuvah that this behavior comes close to transgressing the boundaries of
modesty and borders on an actual violation.] On the other hand, there are also Poskim that posit that in the case
of necessity, one can permit immersion without the presence of three males. This is explicitly written in the
response literature of the Beit Avraham (Page 49) in the name of the Jerusalem scholar, R’ Shmuel Salant, and
the Rishon LeTsiyon, Rav Ben Zion Hai Uziel (Mishpetai Uziel, Yoreh De’ah, Part 1, no. 13) also decides this as
law.
It is also important to note that even though Rav Moshe (in the teshuvah discussed above) slants to the stringent
side, it is clear through his words, specifically in his conclusion, that his principle objection to relying on the
presence of a woman pertains to the specific question that was asked of him, that the bath attendant was not
Jewish. It is fair to assume that perhaps he too would have been more lenient had the bath attendant been one
who is reliable to render testimony in a Jewish court. And the truth is that this is, indeed, the case in his second
teshuvah on this very topic (Igrot Moshe, Part 3, no. 112). Even though the situation on which he was
specifically asked, one of the judges was present during the immersion, it is clear from his argumentation that
there is room to permit immersion without the presence of a Beis Din at all, since the crux of the permission,
according to his opinion, is that in actuality one can rely on the knowledge of the Beis Din that she immersed,
even though they did not witness it with their own eyes. [This is essentially the second opinion of Tosafot
(Yevamot 45b, s.v. mi) and this is their language: “since it is known to all that she immersed, it is as if they are
standing there.”]
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Rabbi Ysoscher Katz
Lindenbaum Center for Halakhic Studies
It is important also to add, that just as we have seen in the Gemarah (Yevamot 45b) that this deliberation was
born from an actual incident, so too, the Mishpetai Uziel builds his argument in order to justify an actual case
that occurred in reality. In other words, in addition to the rabbinic argument that the Rishon LeTsiyon suggests,
he justifies an already existing custom. According to his words, there was an extant more in Salonika to prefer
an immersion undertaken by a female convert without the presence of the Beis Din in the immersion room
itself. The fact that this was the custom can present a precedent to follow custom, that perhaps the presence of
males in the immersion room is not necessary.
In addition to the Poskim who validate an immersion without the presence of the Beis Din, it is necessary to
append the position of the Bach who says explicitly in his first opinion (Yoreh De’ah , Chapter 268) that the
proof/witnessing of a woman is sufficient to validate immersion for the purposes of conversion.
In summary: According to the Rif, the Ramban and their associate(s), there is no need for the presence of the
Beis Din inside the immersion room, as long as they informed her of the leniencies and stringencies at the time
of the immersion. According to Tosafot and the rest of Scholars of Ashkenaz, the Beis Din has to be present in
the immersion room, but this is merely a preference and a category of embellishment a priori. The Mechaber
decides the law according to Tosafot. In terms of law that is put into actual practice, there is an disputation as
there are those who are stringent and mandate the presence of males at the immersion even after the fact or ex
post facto (something that is, as I have emphasized an appalling breach of the fences of modesty ), but there are
also those among the Poskim who are lenient out of necessity, and according to their opinions, an immersion
that is done without the presence of men in the immersion chamber when the woman disrobes is totally and
unequivocally valid.
And thus, it appears clear to me that after the latest charges, it is certainly possible to classify each and every
case of the immersion of a female convert as ex post facto. The salacious rumors cause many of those who want
to become a (vital) part of the inheritance of God to talk with their feet and run if we do not permit them to
immerse without the presence of three males when they are standing naked, due to the lack of modesty that is
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Rabbi Ysoscher Katz
Lindenbaum Center for Halakhic Studies
inherent in the conversion process. Behold the Rishon LeTsiyon Harav Uziel in his instance validated immersion
without the presence of a Beis Din due to “perverse talk.” If one can be lenient when there is merely suspicion
of “perverse talk,” even more so that one can be lenient today when there is substance to the suspicions and
rumors of those women who are fastidious. It is, therefore, my humble opinion, that today we find ourselves in
a situation of ex post facto, and especially if a female convert refuses to immerse in the presence of men in the
room, one is permitted a priori to immerse her without them, as long as a valid and trustworthy woman is in the
room and the three judges stand outside of the room, adjacent to the immersion room.
And I myself would go one step further. Since, as I have explained, there is room to be lenient ex post facto and
out of necessity one can convert even without the presence of a rabbi in the immersion room, I would argue that
it is the responsibility of every rabbi who converts others to inform the potential convert of this option and
possibility.
I, of course, say all of this just as halakhah. In actuality, it is of great import that other rabbis and scholars agree
with me to change that which we are accustomed to today, that men are present in the room at the very moment
that the female convert immerses. If my suggestions will be accepted and this will change to become the
common practice we will achieve something significant. Otherwise, instead of assisting female converts- the
leniency will hurt them, because the official powers will find in this custom an unjustified pretext to make
matters even more (incredibly) difficult and perhaps even to cause the invalidation of the conversion of female
converts who immersed without the presence of the Beis Din in the immersion room.
May it be the will of God to cause His Shekhinah to descend upon our actions, which, as is known, is contingent
on the purity of the camp, as it is written: “For the Lord your God walks in the midst of your camp…and may
your camp be holy.” (Devarim 23:15) The inspiration of the Shekhinah will come when the bar for holiness of
the camp is elevated and set very high.
In friendship,
(Rabbi) Ysoscher Katz
Director of the Lindenbaum Center for Halakhic Studies, Yeshivat Chovevei Torah
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Rabbi Ysoscher Katz
Lindenbaum Center for Halakhic Studies
PS. At the moment I do not have time to delve into this in much detail, but also from a conceptual perspective it
appears to me that there is room to be lenient and validate a conversion without the presence of the judges in the
room. Rav Moshe already remarked that the members of the Beis Din are there to ascertain (that the immersion
indeed took place) and not to serve as the ones who actuate the immersion itself. It also appears from the
Achronim (the Ketsot, the Netivot on the subject of laws pertaining to judges, Hidushei Rav David there in
Yevamot and others) that the role of Beis Din in conversions is categorically different from its role in other
matters which require a Rabbinic Court. Generally speaking, the Beis Din does its work as representatives of
God Almighty “-Judges stand in the Company of God-“ (Theilim 82:1) and they, as his emissaries, try to
represent him to mediate between the litigants in God’s stead. This is not their role in conversion. When the
Rabbinic Court converts someone, they are doing so in their role as messengers of the community. They, as
representatives of all of Klal Yisrael, escort those who are converting into the Covenant of the Community
Israel, and turn them into citizens of the Israelite Nation. If these Achronim are correct, it is easy to say that
since the entire process of conversion is a process of a. representation of the community, b. clarification that
everything was done according to the law- in other words, the members of the Beis Din are those who clarify
and implement the law. Consequently, the process does not mandate that a Beis Din be physically present at the
actual immersion, and any time where it is clear beyond any shadow of a doubt that everything that needs to be
done was done, the conversion is valid. Refer also to that which the Achronim dealt with appertaining to the
validity of “knowing without seeing” in conversion. These matters need further clarification, and with the will
of God, I shall tackle them when I shall have time.
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