 CHAPTER
FIVE:Those Who don’t Fit the Model: Family Situations and Status
in Judaism and the Jewish World
4B. Marrying the Brother-In-Law: A Strange Obligation
A major factor which arises at this point is a specific obligation incumbent
on a widow (not a widower) in Jewish law, known in English as Levirate
marriage. The word Levir is derived from the Latin term for a husband’s
brother and it is indeed around him, and his rights and obligations, that
the ceremony is centred.
If brothers are living together and one of them dies without a
son, his widow must not marry outside the family. Her husband’s
brother shall take her and marry her and fulfil the duty of brother-in-law
to her. The first son that she bears shall carry on the name of the
dead brother so that his name will not be blotted out from Israel.
Devarim 25:5-6
A widow who did not bear any children to her husband is thus obligated
to remarry one of her former husband’s brothers. The origins of
the ceremony releasing her from this obligation (called the ceremony of
Chalitzah) lie in the following Biblical account from the book
of Devarim in the Torah (see also the Book of Ruth).
However, if a man does not want to marry his brother’s wife,
she shall go to the elders at the gate and say: “My husband’s
brother refuses to carry on his brother’s name in Israel. He will
not fulfil the duty of a brother-in-law to me." Then the elders
of his town shall summons him and talk to him. If he persists in saying,
“I do not want to marry her”, his brother’s widow
will go up to him in the presence of the elders, take off one of his
sandals, spit in his face and say: “This is what is done to the
man will not build up his brother’s family line.” That man’s
family shall be known in Israel as the family of the unsandalled one.
Devarim 25:7-10
This strange ceremony, with its even stranger symbolism, appears
to originate in a concern for both the dead man and his widow:
The concern for the dead man is clear: There is a desire that he should
be able to see his name carried on through his family line, which is the
reason given in the text above.
However, there is another explanation that is given for the Biblical
demand, which it is equally convincing, in connection with earlier observations
made about the situation of the widow. It will be recalled that it is
clear from the Biblical context, in which the widow is frequently mentioned,
that the widow was a particularly vulnerable individual in Israelite society.
It is suggested that one of the major aims of the law mentioned above
was to defend the widow and afford her some kind of protection from her
vulnerable situation. Clearly, the primary motive for the law is the continuation
of the dead husband’s name and line, but concern for the widow’s
situation might have been a secondary factor.
A number of suggestions have been made in relation to the two principal
elements of the  (Chalitzah)
ceremony are concerned, namely the taking off of the shoe and the spitting:
The principle reason for the spitting would appear to be clear: insult
has been given - a man has refused to accept his brother’s widow
and to “raise up” his name in Israel.
What is perhaps not so clear is who is being insulted, the widow or her
late husband. However, there is a tradition in the name of the Ba’al
Shem Tov, the traditional founder of Chassidut, who likened saliva to
semen and explained that the reason for the spitting was to make the point
that the brother-in-law had wasted his semen, rather than using it productively
to continue his brother’s name.
A number of suggestions have been made about the shoe.
- There are some who see the shoe as a symbol of property and possession
which is now being rejected.
- There are those who see it as a symbol of divorce.
- Others see it as a sign of mourning, connecting it to the Jewish
practice of taking off shoes at a time of mourning. According to this
interpretation, the brother-in-law is rejecting the chance to prolong
his brother’s life symbolically by continuing his name. Therefore,
the shoe is a symbol of mourning: the brother is now finally dead.
Many changes developed over time in the laws pertaining to this ceremony:
At a certain point, women were given the ability to reject the brother-in-law,
something that in the Biblical ceremony does not appear to be possible.
At least in Ashkenazi society, from the time of the Middle Ages it was
resolved that the ceremony of Chalitzah was to be preferred to
the possibility of the marriage between the widow and the brother-in-law
actually going through. There were a number of reasons for this, but primary
among them was the thought that there might be other motives, such as
lust, that might prompt the brother-in-law to wish to marry the widow.
Since this was deemed unacceptable, the Chalitzah ceremony was
preferred, finally becoming mandatory.
In many Sephardi societies, however, the marriage was seen as a proper
option right through to the mid-twentieth century, when the Chief Rabbinate
of Israel issued a decision binding on all Jews in Oriental countries
to the effect that, for them, too, Chalitzah was always to be
performed in such a case.
Orthodox Jews still perform the Chalitzah ceremony.
Non-orthodox Jews, however, have ceased to follow this practice for different
reasons:
The Reform movement stated already in the nineteenth century that the
whole practice was irrelevant;
In 1969, the Conservative movement adopted the idea of inserting an extra
clause in the wedding agreement which would exempt the need for Levirate
marriage.
It is essential to apprecite, however, that this is not merely a strange
remnant of a Biblical ceremony: Chalitzah is an indispensable
prerequisite to a widow's ability to remarry, where she is without children
from her husband and while there is a brother living. Without a certificate
attesting to the fact that a Chalitzah ceremony has been performed
when necessitated, orthodox Halachah rules that a widow is unable to remarry.
The traditional Jewish second marriage ceremony itself is a little different
in its formal elements from the ceremony for a first marriage; some of
the elements mentioned in the previous chapter are adapted in the case
of a second marriage.
- For example, there is a readjustment of the Ketubah document with
different obligations towards the second wife.
- If one of the couple was not married in the past, the Sheva Brachot
celebrations last for a full seven days as in a regular first marriage,
but if both of the partners were previously married, the Sheva Brachot
take place on one day only.
- In a woman’s second marriage there is no veiling or unveiling
and the element of yichud is also absent.
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