Transcript of the Verdict of R' Shirman's Court, Part VI

Here is Part VI of R' Shirman's verdict; Part V was here.

In this section, R' Shirman justifies disqualifying a conversion ex post facto on the basis of lack of acceptance of mitzvot. It is technically unnecessary for his decision, as he points out, but he addresses it anyway.

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 approach ignores the substantial literature by halachic authorities who discussed the strength of the mitzvah-acceptance requirement in conversion. R’ Shirman says he had even shown R’ Daichovsky a 1984 halachic ruling from R’ Yaakov Kanaevsky (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 further indicates, says R’ Shirman, that her behavior was limited to external tradition and not truly religious conduct.

Part VII, here, moves into procedural issues as well as the question of a court re-opening decisions from an earlier court.