I have been asked to re-publish the transcript of R' Shirman's ruling in one piece instead of 9, so it is here, below. But first, a quick summary:
It seems to me that R’ Shirman has two specific claims against R’ Druckman’s conversions:
1) That R’ Druckman lechatchilah does not require full acceptance of mitzvot at the moment of conversion (Section 2, 5, 10). (In this R' Shirman relies primarily on rulings from several halachic authorities of the past century, declaring conversions invalid even ex post facto if there was never any intent to fulfill mitzvot.)
2) That R’ Druckman does not qualify as a judge, for three alleged reasons:
a) He accepts, as a matter of lechatchilah policy, conversion without full acceptance of mitzvot at the moment of conversion (Section 2, 5) (it is in this that R' Shirman terms R' Druckman an apikorus, for accepting this view as a lechatchilah);
b) He signs on במותב תלתא conversion documents when he was not present for the conversion, or he has others sign his name in his absence (Sections 6-9) (it is not clear to me whether these are symbolic signatures or functional signatures);
c) In converting people who do not accept mitzvot, he causes Jews to stumble in assuming those people are Jewish, and so he is sinning in the very act of judging. (Sections 3, 5)
[Separate from this, R’ Shirman engages in a long discussion of a court’s ability to re-visit the decisions of another court, and the application here in both theory and actual cases (Sections 11-16)]
I think a lot of this is really about one major issue: Defining “lechatchilah” and “bedieved” :
In the public responses to R’ Shirman’s position, such as the Tzohar paper, it has been noted that there is a minority view that full acceptance of mitzvot at the moment of conversion is not required, bedieved.
This is not R’ Shirman’s point, though – rather, he specifies (Sections 2, 5) that the problem is that one who accepts this approach as a שיטה, as a lechatchilah approach to conversion, is flouting rabbinic tradition and therefore is disqualified as a judge.
It seems – and see the sources cited to this effect in Section 5 – that there is a basic disagreement about whether we are already in a בדיעבד situation, or not.
R’ Druckman seems to believe that the שעת הדחק is already here, because of assimilation problems. In this R’ Druckman is actually consistent with the view of Eternal Jewish Family, interestingly; despite their vocal support for R’ Shirman, they actually argue for aggressively pursuing non-Jewish spouses of Jews for conversion!
R’ Shirman, on the other hand, takes a much more narrow view of “bedieved,” accepting it only – and even then possibly not – ex post facto.
R' Shirman cites the claims of each side, specifically:
R’ Attiyeh’s claim that the woman and her children are not Jewish, because:
a) the court which converted them is pasul and the judges are pasul, such that the conversion itself is invalid, and
b) the woman never accepted mitzvot, and does not observe central mitzvot to this day.
The woman’s response is that her conversion was valid, with valid judges, and that she does observe mitzvot to some extent, including Shabbat candles, Yom Tov celebration, fasting on Yom Kippur, avoidance of chametz on Pesach and sitting in a Succah on Succot.
There is also a further issue, in which the court wished to list the woman and her children in the registry of people who may not wed. The woman contends that the court has no standing in this matter, for one court does not have the ability to overturn the conversion of another court.
The woman also contends that the court cannot list her children in the registry, for she is not personally credible to disqualify her children, with their chazakah of Judaism.
The woman concluded her charges by declaring that R’ Attiyeh’s court is guilty of the severe prohibition of Onaat haGer, oppressing the convert.
Section 2: ביטול גיור משום פסול בית הדין המגייר
The court examines the possibility of rescinding a conversion based upon disqualification of the converting court. This is based upon the charge that R’ Druckman’s court frivolously discounts the halachic requirement of קבלת מצוות, acceptance of mitzvot, and in disregarding this law they are guilty of מגלה פנים בתורה שלא כהלכה, knowingly misinterpreting Torah and its laws, so that they are rendered “intentional sinners and apikorsim.”
If so, then per Shulchan Aruch Yoreh Deah 268:3, which requires three כשרים for a court, the conversion had no court.
R’ Attiyeh also cited R’ Moshe Shternbuch’s Teshuvot v’Hanhagot disqualifying conversion which will not lead to mitzvah observance. R’ Shternbuch himself cited many authorities, and said that a court which accepts such converts is causing them to stumble and guilty of great sin. He added that such a court would not be a legitimate court, since they give inappropriate rulings. Therefore, if a court would know that that converts will not maintain their mitzvah observance, their conversions would be invalid.
R’ Shternbuch further argued, in another responsum, that all courts operate for conversion as proxies of the courts which had true semichah, and that courts which would accept non-observant converts would lose their ability to be proxies of those older courts.
In a third responsum, R’ Shternbuch refused to grant an aliyah to a sincere, observant convert, because he had converted previously in a court which accepted converts who did not accept mitzvot. He wrote that the man is a נכרי by letter of the law.
R’ Shternbuch did write that perhaps we could accept him, if we were stuck, until he could immerse before proper judges, if we could argue that the judges thought they were doing a mitzvah.
R’ Attiyeh then brought further, similar material from the Teshuvot Migdal Tzofim.
As far as the possible acceptance of the judges because they think they are doing a mitzvah, this would likely not be relevant in our case. The source for that principle is the acceptance of witnesses who bury people on the first day of Yom Tov, a sin which does not relate directly to functioning in court. Here, the transgression relates directly to their function as judges. It’s like disqualification for taking a bribe.
Section 3: ביטול גיור כשבית הדין המגייר עובר על איסור דאורייתא של לפני עור
R’ Attiyeh also brought the view of the Migdal Tzofim that judges who accept ineligible converts violate לפני עור, the prohibition against putting a stumbling block before the blind. Therefore, they are disqualified as judges.
R’ Shlomo Zalman Auerbach (Minchat Shlomo 35:3) wrote that judges who accept converts who clearly have no intention of keeping mitzvot are violating לפני עור even if the conversion is valid, for now this convert will be liable for his sins.
R’ Shirman then noted that he had found the same in Rav Kook (Daat Kohen Hilchot Milah v’Gerut 154), that accepting such converts is a violation of לפני עור, either because the conversion is invalid and so people will think erroneously that they are Jewish, or because the conversion is valid and now they are liable for their sins.
R’ Shirman also cited the Sridei Eish (2:96) regarding conversion of a minor in a non-mitzvah-observant household, where the child also will not observe mitzvot. He wrote that the conversion is invalid, and causes a stumbling block for people.
R’ Shirman then digressed into an interesting discussion of the nature of לפני עור, and the question of whether the prohibition applies only to aiding in the transgression, or even in making the transgression possible by creating the stumbling block. (I recall an interesting article on this in HaDarom a few years back, regarding a travel agent selling a Jew a ticket for a Shabbat plane flight. - TRH) The application here is that in labelling this person a Jew one is not actually forcing anyone to marry him/her. He compared the case to a discussion of the Netziv regarding marrying off a couple who will not observe niddah.
R’ Shirman at first concedes that he does not believe a biblical violation of לפני עור has occurred, because the judges do not aid in the actual aveirah. However, he notes that he presented this argument to R’ Shlomo Zalman Auerbach and did not succeed in swaying him. R’ Shirman then writes that he reconsidered his own position and realized that in the conversion case the link between the conversion and the aveirah is very close, closer even than in the marriage of two people who will not observe the laws of niddah, and therefore the title of לפני עור is more appropriate there.
He then cited the Beit Ploni for further support that converting such people is a problem of causing others to stumble. The Beit Ploni did not use the term “לפני עור,” though.
Along the way R’ Shirman discusses whether it is beneficial for a child to be converted to Judaism without mitzvah observance.
R’ Shirman then concludes that this issue of לפני עור is sufficient to disqualify the judges entirely - not only as a violation of Torah law, but as an aveirah which runs counter to the essence of a converting court’s nature.
Section 4: מעשה בית הדין המגייר כמצוה מגדיר מהות הגדר
R’ Shirman now cites Yevamot 47b which states that conversion of a candidate is a mitzvah.
The Tashbetz asks where this fits into the 613.
The issue comes up, as well, in the discussion of reciting the berachah on a convert’s immersion before the conversion itself, and the text of אשר קדשנו במצוותיו וצונו, that Gd has instructed this mitzvah. The Raavad discusses this regarding a minor’s conversion, and labels it a mitzvah.
R’ Shirman then cites R’ Albertsaloni who lists this as part of the mitzvah of loving the convert. This is difficult, though, given that such a mitzvah applies only post-conversion.
R’ Shirman analyzes this based on two approaches to the mitzvah of loving the convert: The Rambam’s view (Aseh 207 and further cited locations) that this mitzvah is because of the convert’s special spiritual level, vs. the Chinuch’s view (Mitzvah 431) that this mitzvah is because of the convert’s special social status.
R’ Shirman argues that based on the Rambam’s view, we can understand R’ Albersaloni’s view that helping the ger convert is part of expressing that love.
R’ Shirman then offers another approach to the Tashbetz’s question from the Raavad’s words regarding the berachah; he sees here the idea that helping the ger to convert is a fulfillment of אהבת ה', loving Gd.
R’ Shirman adds that if this is the mitzvah, then the merit for a minor in converting is dependent upon him becoming connected to HaShem, the Torah and its mitzvot.
R’ Shirman then embarks on a tangent regarding inappropriate conversion of minors, such as in adoption cases, before returning to his central point: That since conversion of candidates is a mitzvah, and since the mitzvah is dependent upon increasing their connection to HaShem, therefore conversion of candidates who will not follow the mitzvot is not the mitzvah of conversion at all.
Section 5: בית דין מגייר שעובר בגיור על לפני עור אין לראותו כשוגג
R’ Shirman then returns to an earlier theme, from Section 2: That a court which ignores the serious results of inappopriate conversion cannot be excused as erring in pursuit of a mitzvah. Therefore, he writes, “Any act of conversion they perform is lacking a kosher beit din, and therefore there is no strength or effectiveness for their conversion.”
R’ Shirman rejects, as he did in Section 2, any comparison between this case and people who bury on the first day of Yom Tov.
R’ Shirman also again rejects any claim that there is a mitzvah in bringing these people into בני ישראל.
R’ Shirman then quotes a member of the conversion courts (ר' פריס) who had written that we live in a time when we must look to the future of the Jewish nation.
He quotes another member of the conversion courts (ר' רוזנפלד) who had written that because of intermarriage concerns we are in an עת לעשות לה', and we must help them convert lest they become mixed into the population in Israel without conversion.
He quotes a third member of the conversion courts (ר' בס) who writes that closing the doors to converts today is in act of opening gates to the outside and to assimilation. He writes that conversion is a public need, and there should be no piling of obstacles in the way of the convert.
R’ Shirman adds that the judges on these courts see conversion as a mitzvah due to national responsibility and public need.
R’ Shirman then tries to contend that this is different from the Yom Tov gravediggers because the Yom Tov gravediggers see the actual deed of digging a grave as a mitzvah, whereas the courts see a mitzvah down the road from their conversion, but then he recants.
R’ Shirman concludes the section by arguing that the idea of converting as a social need is dlawed, for these candidates do not begin to function as Jews.
Section 6: תאור פרשיות זיוף תעודות מעשה בית דין לגיור שנעשה על ידי אבה"ד הרב דרוקמן וסגנו הרב אביאור
In addition to his ruling, R’ Attiyeh asked R’ Shirman to confirm his finding that the converting court is pasul, and so the conversion is invalid. R’ Attuyeh cited the case brought by Attorney ש. יעקבי against R’ Druckman for forging a conversion document for a court in Warsaw, by signing on it when in fact he was in Israel on the date of the conversion. R’ Druckman acknowledged, in a hearing, that he was not in Warsaw during the conversion, and was not part of a group of three as noted in the document on which he had signed. He explained that he had promised the woman to convert her, and so he had signed on the deed.
Attorney יעקבי added that R’ Avior, a member of the conversion courts, was also actively involved in the creation of that forged document.
Attorney יעקבי also contended that this was not a lone incident, and mentioned another, similar case. He said that R’ Druckman had been summoned to a hearing over that, and had pledged not to do this again.
Attorney יעקבי also contended that he had tens more cases like this.
R’ Atiyyeh also included ifnromation from a journalist Elazar Levine, from a website, on the investigation into R’ Druckman.
R’ Shirman said that after analyzing Attorney יעקבי’s information, he found a frightening picture of false documents and false testimony on acts of the conversion courts and confirmation of Jewish status in close to 200 conversion documents from 1999 through 2005.
R’ Shirman cited a letter from 2000 from R’ Yisrael Rosen, then the head of the conversion courts, to R’ Mordechai Eliyahu, on forgery he had uncovered from an unnamed judge who had signed on documents for conversions for which he had not been present – documents which said במותב תלתא etc. R’ Rosen said the signing rabbi did not deny the allegations. R’ Rosen said he thought the signing rabbi was simply careless in signing papers that were put before him without examining them.
R’ Shirman contends that R’ Rosen sent the letter to R’ Druckman and received no reply.
R’ Rosen said he asked R’ Druckman directly about what would be required in order to be able to sign a document, and R’ Druckman said being present for tevillah would suffice. R’ Shirman argues that this should not be sufficient to be able to sign the paper, given that the paper mentions having investigated and clarified the desire of the conversion candidate.
R’ Shirman goes on to detail the process of the investigation of R’ Druckman, the rest of the beit din, and specifically R’ Avior who is accused of signing R’ Druckman’s name on conversion documents.
The reason given by R’ Rosen for these signatures is that R’ Yisrael Meir Lau required that a qualified dayyan be present at every conversion.
R’ Rosen’s lengthy file concludes with three questions asked of R’ Mordechai Eliyahu as well as R’ Avraham Shapira z”l:
1) What to do with court documents that are now known to be false and have not been given to the converts yet
2) What to do with court documents that are now known to be false and have been given to the converts already
3) What to do with court documents from the past half-year since these allegations have come to light.
Section 7: מעשה זיוף מעשה בית דין לגיור כעילה לפסלותם של הרב דרוקמן והרב אביאור מלהיות דיינים בבית דין מגייר
R’ Shirman first addresses the question of whether false signatures disqualify R’ Druckman and R’ Avior from serving as judges for conversion, such that all of their conversions would be invalid.
R’ Shirman points out that Rambam, Smag and Shulchan Aruch all list love of truth as a criterion of a judge, and Kenesset haGedolah says the criteria listed are requirements. R’ Shirman concludes that a judge who tricks, and engages in lies and forgery, would then be invalid.
R’ Shirman notes that Birkei Yosef says the traits are not requirements, and that it’s only that when such judges are available, we must use them rather than other people. However, R’ Shirman contends that all would agree that were a judge to conduct himself in a manner opposing these traits, and the conduct would be in the course of his role as a judge, then the judge would not be acceptable.
R’ Shirman draws analogies to shochtim who dealt in improper meat certification, and who were therefore disqualified from continuing to serve. R’ Shirman acknowledges that in this case there actually is, possibly, a conversion process before three judges - but since R’ Avior is among them, and he is a forger, this cannot be considered a proper conversion process before three judges.
R’ Shirman concludes the section by again noting that since the disqualification is conversion-related, it cannot be compared to other cases in which judges have general sins on their records.
Section 8: מעשה זיוף תעודות הגיור כאסורי דאורייתא של גניבת דעת ליחיד ולציבור ולמדינה, גניבת ממון, לפני עור וחילול ה'
R’ Shirman states that executing documents with forged signatures violates serious biblical violations: fooling the public, fooling the conversion candidates, fooling the national government regarding status and rights and citizenship and thereby violating dina d’malchuta, placing a stumbling block before the blind, and chillul HaShem.
Shulchan Aruch Choshen Mishpat 228:6 cites Chullin 94a on the prohibition against fooling people, and Ritva on that gemara says it is a biblical prohibition from לא תגנובו ולא תכחשו. Other authorities consider this a d’rabbanan.
R’ Shirman cites additional authorities on this, and contends that regardless of whether fooling people is biblical or rabbinic, these courts’ actions constitute a biblical violation of לפני עור (per the earlier discussions).
R’ Shirman adds that there is also a financial aspect of causing loss to individuals, communities and the country, and that would be a violation of biblical law against theft. He cites Igrot Moshe regarding students stealing the answers to government exams; Rav Moshe wrote that this is prohibited under dina d’malchuta as well as fooling people and stealing money when one seeks a job on the basis of these test scores.
R’ Shirman cites R’ Menashe Klein in Mishneh Halachot regarding forged diplomas; he ruled that this is fooling people, and that because it enables employment it is also theft of money.
R’ Shirman continues to cite the case of a hotel kitchen employee who is a non-observant convert, and who cannot be employed in that kitchen - so that the false conversion document costs both the hotel (in having to fire him) and the employee.
R’ Rosen further raised the issue of chillul HaShem when he discussed these problems with R’ Eliyahu Shapira z”l and R’ Mordechai Eliyahu. R’ Shirman notes that this chillul HaShem has come to pass, in the wake of the case in Warsaw.
Section 9: פסילת הדיין כתוצאה ממעשה הזיוף והמרמה חלה משעת מעשה העבירה
R’ Shirman again (!) notes that disqualification of judges for forgery of signatures would disqualify all of their acts of conversion, for lack of a kosher beit din during the conversion process. It would be retroactive to the time of their disqualification. Therefore, it would extend back to the revelations of R’ Rosen.
The conversion case before the court is from 1992, years before those revelations, and so R’ Rosen’s revelations would not disqualify that conversion. As R’ Shirman cites from the Rama, disqualification of witnesses and judges is only on the basis of definite knowledge, not doubt, such as in a case in which people testify to the non-observance of witnesses after those witnesses have presented testimony, and it is not known which occurred first. (Choshen Mishpat 34:23)
However, R’ Shirman contends that the revealed forgeries demonstrate powerfully that these courts ignore halachic requirements of conversion courts.
Section 10: דחיית שיטת הרב דיכובסקי וקביעתו העקרונית שלא ניתן לפסול גירות בדיעבד לאחר שנעשה
The plaintiff claimed that R’ Attiyeh is in error in listing the woman and her children in the register of those who are ineligible to wed. That claim is based on R’ Daichovsky’s comment in another case, that we examine a convert’s mitzvah acceptance only at the moment of conversion.
R’ Shirman first points out that since the disqualification is actually on the grounds that the court was ineligible, even a full acceptance of mitzvot by the convert would not be relevant.
R’ Shirman continues to examine R’ Daichovsky’s point, though, because R’ Attiyeh did additionally wish to disqualify the conversion on the basis of lack of mitzvah acceptance.
R’ Daichovsky’s point rests on the contention that we are only concerned with intent at the moment of conversion, and that any later examination can only reach doubtful conclusions about what happened, whereas the court which was present at the conversion itself was definitely convinced of the conversion candidate’s sincerity. Later doubts do not override earlier certainty.
R’ Shirman argues that this ignores the substantial literature by halachic authorities who discussed the strength of the mitzvah-acceptance requirement in conversion. R’ Shirman says he had shown R’ Daichovsky a 1984 halachic ruling from R’ Yaakov Kanaeivsky (the Steipler), R’ Shlomo Zalman Auerbach, R’ Shach and R’ Elyashiv, in which they warned that conversion without Torah and mitzvah acceptance is invalid even ex post facto. R’ Ovadia Yosef also wrote this, saying that if it is known from the start that a convert does not accept Torah and mitzvot, and only pays lip service, then the conversion is not even valid ex post facto.
R’ Shirman then contends (on his own, not quoting anyone) that the test of intention to accept mitzvot is in the lifestyle led by the candidate until the moment of conversion. In the case under discussion, life with a man who is separated from Torah and mitzvot, in a community which does not practice Torah and mitzvot, indicates what was in her mind at the conversion. Further, he notes that she continued to live with that man for months after the conversion, without chuppah or kiddushin. They did not join an observant community or a shul, and the husband never wore tefillin. The litigant’s claim that she observed mitzvot as she could indicates, says R’ Shirman, that her behavior was limited to external tradition and not truly religious conduct.
Section 11: דחית עמדת הרב ש. דיכובסקי והרב ע. בר שלום שבית דין רבני אינו מוסמך לבטל גיור שנערך על ידי בית דין מיוחד
The plaintiff claims that the local beit din in deciding to list the woman and her children in the registry for people who cannot marry, for a court lacks the standing to overturn the conversion of another court. This is based on a majority ruling from R’ Daichovsky and R’ Bar Shalom in a case in which a Rechovot court tried to overturn a conversion.
R’ Daichovsky cited a decision from R’ Bakshi-Doron stating that marriage registrars will accept copies of conversion certificates from licensed rabbinic courts and the courts of conversion, and that all other conversions must receive approval of rabbinic courts or the department of the Chief Rabbinate dealing with this issue. This indicates that the two court systems – rabbinic and conversion-specific – function independently, and one cannot nullify a decision of the other.
The plaintiff further cited the principle בית דין אחר בית דין אחר לא דייקי, that one court does not investigate the actions of another.
R’ Shirman notes that this issue is relevant far beyond the actions of R’ Attiyeh’s court, and would affect past decisions involving “many tens and perhaps hundreds” of conversions in which courts have found flaws in the conversion process, tied to the central factor of accepting mitzvot, and have on that basis overturned or cast doubt upon the conversions. The courts in those cases have not been concerned about the cited procedural and halachic challenges to their authority.
Section 12: במעשה בית דין ואישור גיור לא נאמר הכלל של "בית דין בתר בית דין לא דייקי"
The principle of non-investigation comes from Bava Batra 132, and is brought as halachah in the Shach Choshen Mishpat 19:2. However, R’ Shirman contends, based on an earlier ruling of his own court, that the principle that one court does not investigate the actions of another court does not apply to conversion today.
R’ Shirman cites the 1984 ruling (already cited in Section 10) from R’ Yaakov Kanaeivsky (the Steipler), R’ Shlomo Zalman Auerbach, R’ Shach and R’ Elyashiv, in which they warned that conversion without Torah and mitzvah acceptance is invalid even ex post facto, and should not be accepted by marriage registrars. R’ Shirman notes that this ruling does not distinguish between courts of different locales or levels of name recognition, and he says that if registrars must investigate, then courts certainly must investigate.
To back up his ruling that a court may investigate an earlier court’s conversions, R’ Shirman cites an argument from his court’s earlier ruling from R’ Isirer, arguing that since the overturning of the conversion is based on information to which the original converting court did not have access, the rule of non-investigation does not apply.
R’ Shirman bases this assertion on a statement of the Rambam. The Rambam recorded the rule of non-investigation (Hilchot Edut 6:5), and added that this principle is based on the assumption (חזקה) that the original court was expert and would not err. In presenting that logic, the Rambam opens up the possibility that new information would warrant re-opening a case, since the חזקה of expertise would no longer be relevant. R’ Shirman cites a similar conclusion from R’ Chaim Pilaggi’s סמיכה לחיים.
R’ Shirman contends that if a woman declares acceptance of mitzvot before a Beit Din, saying that she doesn’t turn on electric lights on Shabbat although she does not do kiddush or havdalah, and she is told to get married (halachically) immediately after the conversion, and then four months later she acknowledges in a Beit Din that she turns on lights on Shabbat, and justifies her actions by saying observance is difficult, and her husband says there has been no meaningful (משמעותי) change since the conversion aside from niddah observance, this is information that, had it been known to the converting court, would have caused the court to refuse her conversion in the first place. This is considered new, relevant, information to justify re-opening the case. The court is indeed obligated to re-open such a case, to prevent stumbling blocks for individuals and for the community.
Section 13: בירור בגדרי כלל בית דין בתר בית דין לא דייקי
R’ Shirman presents the context for the principle that a beit does not examine the deeds of another beit din: Rava tells Rav Pappa and Rav Huna bereih d’Rav Yehoshua to consult him before countering a verdict of his; if he cannot justify his ruling, he will recant (Bava Batra 130b). The Shitah Mekubetzet there, from Ra”ah and Ran, explains that Rava would recant if he had erred in a dvar mishneh, not in a matter of opinion, for the latter type of error stands.
Based on that, R’ Chaim Pilaggi ruled that even if a court is expert, a court could challenge it, despite the rule of not examining another court’s actions.
It appears, says R’ Shirman, that the rule of not re-opening a court’s case applies lechatchilah, specifically when one knows nothing bad about it. He also finds support for this idea in Radvaz 1:279 (who bases himself on the Rashba) and Chatam Sofer 6:50. The latter responsum dealt with an attempt to justify the openness to overturning a verdict in Bava Batra 130b against Rabban Gamliel’s rejection of R’ Yehoshua’s challenge in Rosh HaShanah 25a.
R’ Shirman then again cites R’ Chaim Pilaggi, to show that if a second court investigates and finds reason to contradict the first, its ruling stands.
R’ Shirman mentions that R’ Chaim Pilaggi did note an apparent contradiction in the Radvaz, for in one case Radvaz wrote as mentioned above, and in another he wrote that one court may actually revisit another court’s actions, and he didn’t mention anything about needing revelation of new facts. R’ Chaim Pilaggi resolved this by suggesting that Radvaz held that a court may, today, investigate an earlier court’s rulings. In the case where he mentioned the new court’s discovery of new facts, he did so in order to show that even if one held that a court could not revisit another court’s rulings, that would not apply if new facts were discovered.
R’ Shirman does note that the Beit Yosef cited the view of Radvaz (in Responsa Avkat Rochel) and rejected it, based on his own reading of the Rashba. However, he points out that the Beit Yosef agreed with Radvaz regarding cases in which the earlier court’s judges were not expert in the law under discussion. R’ Shirman then cites numerous others, including R’ Yisrael Meir Lau, who support the general rule that courts do not revisit the decisions of other courts, although they would support revisiting the decision of an inexpert court.
R’ Shirman concludes that the view of Radvaz is rejected, and so a court could not rely on the argument of Radvaz to justify revisiting the decisions of a municipal court.
Section 14: על בתי הדין לגיור שבימינו לא נאמר הכלל בית דין בתר בית דין לא דייקי
R’ Shirman begins by saying that, as he had said above, even if the principle that courts do not revisit the decisions of other courts remains in force, if the second court finds problems and weaknesses in the earlier ruling, that rule does not apply. Therefore, in light of the discovery of problems in mitzvah acceptance, the chazakah of the ruling is weakened and their decision may be re-eamined and nullified, as seen from Rava’s declaration in Bava Batra 130b.
R’ Shirman then contends that most halachah-observant courts involved in conversion, whether in Israel or not, lack a chazakah of correct decisions and rulings – not in terms of deficient halachic knowledge, but in terms of not accurately perceiving the reality of the individual conversion case. He cites the Chazon Ish on the procedure of determining law and analyzing the circumstances in which the law is to be applied.
R’ Shirman cites his own experience, in seeing converts who never intended to accept mitzvot, but simply said they would.
Therefore, R’ Shirman argues, even the Beit Yosef, who balked at the positions of Rashba/Radvaz, would agree to apply them to conversion and say that the courts’ decisions could be re-opened for examination.
R’ Shirman then return to his earlier point, saying that even if we would say a court cannot re-open another court’s decision, we would have to accept the new court’s finding once it did re-open the decision and it did find flaws.
As far as the procedural level cited earlier in Section 11, R’ Shirman argued again, as he did in Section 12, that the 1984 ruling (already cited in Section 10) from R’ Yaakov Kanaeivsky (the Steipler), R’ Shlomo Zalman Auerbach, R’ Shach and R’ Elyashiv, in which they warned that conversion without Torah and mitzvah acceptance is invalid even ex post facto, and should not be accepted by marriage registrars, shows that conversion certificates must still be investigated where there is a concern about the acceptance of mitzvot by the conversion candidate, or a concern about the status of the converting beit din.
Section 15: טעונים פורמלים פרוצדוראליים אינם גוברים על דברים מהותיים שסותרים להם
R’ Shirman returns here to the procedural issue cited in the beginning of Section 11:
In an earlier litigation, R’ Daichovsky cited a decision from R’ Bakshi-Doron stating that marriage registrars will accept copies of conversion certificates from licensed rabbinic courts and the courts of conversion, and that all other conversions must receive approval of rabbinic courts or the department of the Chief Rabbinate dealing with this issue. This indicates that the two court systems – rabbinic and conversion-specific – function independently, and one cannot nullify a decision of the other.
The majority of the court in that litigation agreed with R’ Daichovsky and recognized the conversion, ignoring the challenges to the mitzvah-acceptance of the convert.
R’ Shirman argues that this decision runs counter to the 1984 declaration cited above at the end of Section 14 from R’ Kanaeivsky, R’ Shlomo Zalman Auerbach, R’ Schach and R’ Elyashiv, instructing marriage registrars to review conversions. If registrars should be able to review conversions, then expert courts certainly should be able to do so.
R’ Shirman further argues that within Torah it is unheard of to allow formal procedures (פורמליות פרוצדורליות) to trump substantive issues.
R’ Shirman supports this, again, with R’ Chaim Pilaggi’s comments (cited above in Section 13) regarding the ability of a court to review decisions of another court.
R’ Shirman notes that the court in the earlier litigation also based its view on the rule that certificates from the conversion courts must be recognized, and argues against that procedural position based, again, on the 1984 declaration cited above.
R’ Shirman turns to his colleague, R’ Bar Shalom, who supported R’ Daichovsky, to ask for the halachic basis for taking the procedural position over the halachic doubts regarding a conversion.
Section 16: אין להשען על דעת הרוב שעברה שינויים ותהפוכות
Note: I think I have all of the voices right in the following section, in which R’ Shirman cites an opinion from the third judge in the earlier Rechovot litigation mentioned above in Section 11 - but the text is unclear about where the third judge’s opinion ends, and R’ Shirman’s notes begin. I have done my best with this.
R’ Shirman then notes that the majority decision in the earlier litigation did not remain with formal authority as its justification, but instead added the idea of R’ Daichovsky (Section 10 above) that acceptance of mitzvot is gauged at the moment of conversion (and not based on later behavior).
As was noted in an additional opinion sent to Rishon l’Tzion Rav Amar by the third judge, to explain why he had decided to vote “I don’t know” rather than take a stance in the case:
The majority in that earlier litigation came to its conclusion after first being of radically different views. One view wished to uphold the rejection of the conversion, the second view accepted the conversion with the justification that conversions cannot be annulled, and the third view argued that the local court had no authority to revoke the conversion, but that the case should go before the Chief Rabbinate for their verdict. The holder of the second view then joined with the holder of the third view, and together they established that until the chief rabbinate nullifies the conversion, the conversion stands.
The writer then asked what might be the halachic basis for removing conversion from the jurisdiction of an existing court, when the courts had always handled conversion and conversion is a matter of the courts, and handing it over to the office of the Chief Rabbinate.
R’ Isirer of Rechovot also challenged the majority view on this basis, and added that the three views among the judges do not constitute a consolidated verdict, but are actually three different views, and therefore two judges should be added to the court.
The writer then noted that this means the original decision was not at all clear, and that there was no dialogue among the judges, which is required in Shulchan Aruch Choshen Mishpat 18:1 "וישאו ויתנו בדבר" and that the Beit Yosef (Choshen Mishpat 13) rules that we do not follow a majority unless the majority is reached after debate among them.
The writer then asked how one could say that the couple should be able to marry pending the decision of the Chief Rabbinate; what if, as R’ Isirer asked, the Chief Rabbinate would then annul the conversion?
R’ Amar rejected these challenges without addressing the substantive issues raised in the letter, and said we rely on the majority.
The majority then recanted their original decision and wrote that no one could nullify a conversion until the original converting body would revoke it.
The writer contended that this verdict lacks all halachic basis, violates precedent, and did not involve any discussion among the members of the beit din, since the majority judges did not respond to the minority’s objections.
After an extended period the court issued a new decision, in which they no longer relied on the majority view of R’ Daichovsky and R’ Bar Shalom that the court which overturned the conversion had no jurisdiction, but instead relied on the view of R’ Daichovsky [cited above, that we only work with the convert’s intent at the moment of conversion], and R’ Bar Shalom joined him in this, again without debate among the judges. The writer noted that he again did not receive a response to his challenges.
This is why the third judge decided to rule “I don’t know” - because without any explanation from the other two judges, he couldn’t claim to understand their view. Therefore, two judges should be added, to obtain clarification [as is done when the judges cannot come to a decision].
Rav Amar stated that the third judge did count toward the decision because he had expressed a view on the case, but the third judge argued that without any understanding of the position of the others, and without debate, and with all of the changes in their positions, he could not say anything other than “I don’t know.”
R’ Shirman then recaps some earlier points related to our case:
• That the rule of not re-opening another court’s decision does not apply here, because that rule, as explained by the Rambam, relies on the assumption that the earlier court was expert. The whole challenge of R’ Attiyeh was that the earlier court was not expert.
• As far as the formal claim that the municipal court lacks authority to overturn the conversion, that is not relevant, because the original court’s authority is void due to their ineligibility as a court.
R’ Shirman adds that the original ruling from R’ Attiyeh did not actually disqualify the woman’s conversion or her status as a Jew, and it did not nullify her children’s status as Jews. Section 12 of the ruling specified that the woman may pursue a further judgment regarding her status; the court’s ruling was only insofar as the get which had been requested. R’ Attiyeh was only requesting that they be registered as ineligible to marry until their conversion could be examined anew by a proper court, because of the flaws which had been identified in the original .
R’ Shirman then notes that the plaintiff’s sources about accepting a conversion where the convert sinned afterward are not relevant here, because they assume that the initial conversion was done properly.
R’ Shirman adds that the Shulchan Aruch’s statement accepting a conversion where the court had not properly investigated the convert’s intent is not relevant here either, for that refers only to a court that has not examined the convert’s intent. Where the intent does become clear, and we see that there was no acceptance of mitzvot, or the court itself has been disqualified, the conversion is nullified.
Based on all of the above, there is room for doubt regarding the conversion of the litigant and her three children. The certificate of conversion should be nullified, and the woman and her children should be listed in the register of those who are ineligible to wed.
The court sees no reason, though, to include the (ex-)husband in the registry of those who are ineligible to wed.