Being Misader Kiddushin for a couple who is not religious

Being Misader Kiddushin for a couple who is not religious and/or will not keep Taharas Hamishpacha:[1]

Officiating a Jewish Kosher wedding for a couple fulfills the great positive command of Keddushin and Nessuin, and assists the couple in fulfilling the Mitzvah of Peru Urevu. Nonetheless, being Misader Kiddushin for a non-religious couple contains a number of Halachic challenges, that may outweigh the benefit of this Mitzvah. In Halacha A we will analyze the several Halachic issues that need to be weighed upon marrying off a non-religious couple. In Halacha B we will present the final conclusions of the Rabbanim and Poskim.

1. The Halachic issues and challenges:
2. Is the Kiddushin of a Mumar valid? If a Jew marries a Jewess in a Halachically valid ceremony, the marriage is deemed binding and requires a Get in event of divorce, even if one or both spouses are [not religious and are] defined as heretics [i.e. Mumarim].[2]
3. May a Jew marry a Mumar? Despite the above, it is initially forbidden for a Jewish man or women to marry a Heretic, similar to the prohibition against marrying a gentile.[3] Accordingly, perhaps officiating at such a wedding can transgress the prohibition of “Lifnei Iver Lo Siten Michshol” or “Misayei Ledvar Aveira,” as it causes a Jewish man/woman to have relations with a Mumar.
4. May one marry off a Mumar?[4] There exists a tradition that one who marries off gentile idol worshipers is endangered of having his descendants become heretics.[5] This worry may apply likewise to one who marries of a heretic. In addition, some Poskim[6] learn that just as there is a prohibition to engage in forbidden relations [Lo Sinaf] so too there is a prohibition to cause forbidden relations [Lo Sanif]. Accordingly, even if we were to negate any prohibition of Lifnei Iver in marrying off a Mumar, perhaps the Lo Sanif prohibition would still remain.[7]
5. Will the couple keep Taharas Hamishpacha? If the couple will not keep Taharas Hamishpacha, officiating at such a wedding can transgress the prohibition of “Lifnei Iver Lo Siten Michshol” or “Misayei Ledvar Aveira,” as it is motivating intimacy with a Nidda. Perhaps this is similar to one who officiates at a wedding for a couple who are Halachically forbidden to get married, such as a Kohen with a divorcee. The Poskim[8] rule that if a Beis Din is aware of a couple who is living together out of wedlock [i.e. girlfriend] then they are to force them to separate, and have her removed from his home. The reason for this is [aside for the prohibition of being intimate out of wedlock[9]] due to that we assume that the girlfriend is certainly embarrassed to [purify herself and] immerse in a Mikveh, and thereby the boyfriend is certainly having relations with her in her Nida state.[10] From this ruling it can be understood that whenever we suspect that the couple will for certain not guard Taharas Hamishpacha, then not only do we not involve ourselves in the marriage, but is actually our duty to break it up.
6. Will the couple get divorced according to Halacha?[11] Will the couple get divorced according to Halacha if one day they decide to separate, which the statistics show to be highly possible? If not, then officiating at such a wedding can transgress the prohibition of “Lifnei Iver Lo Siten Michshol” or “Misayei Ledvar Aveira,” and causes the spread of adultery and populates Mamzeirim in the world.
7. The Bracha of Eirusin:[12] Does the couple truly intend to fulfill the Mitzvah of Kiddushin, or do they not believe in G-d or Torah and Mitzvos and hence believe it to be a formality and tradition. If the latter, then perhaps the blessing of Birchas Eirusin and Nessuin is in vain.
8. The Sheva Brachos:[13] Have the couple been intimate with each other prior to the wedding? If yes, then it is questionable whether Sheva Brachos may be recited.

1. The Halacha:

Some Poskim[14] rule that whenever we suspect that the couple will for certain not guard Taharas Hamishpacha, then it is forbidden to have any involvement in the marriage, and certainly one may not officiate at such a wedding as the Misader Kiddushin.[15] [This is the practice of some Rabbanim. Other Rabbanim[16] agree to officiate at the wedding although they then purposely arrange for relatives of the Chasan and Kallah, who are invalid witnesses, to be chosen as the witnesses for the Chuppah and Kiddushin, which hence deems the Kiddushin null and void.[17]] Other Poskim[18], however, rule that it is permitted to officiate at the wedding and perform for them a Kosher and valid Chuppah even if one can assume for certain that they will not guard Taharas Hamishpacha, and doing so does not transgress Lifnei Iver[19], Lo Sanif[20], or any other prohibition.[21] 

The final ruling and directive of the Poskim:[22] Practically, the widespread practice of Rabbanim throughout the world, and the official stance of the Israeli Rabbanut, is that one should agree [and even be encouraged] to officiate at such weddings and perform it in a Kosher manner, although under the condition that the Kallah immerses in a Kosher Mikveh before the wedding in accordance to all the purification laws.[23] However, in the event that the Kallah refuses to purify herself and immerse in a Mikveh as required according to Halacha, even for the day of the wedding, then one is not to officiate at the wedding, or take any part in it. Nonetheless, some[24] are lenient even in such a case. [The Israeli Rabbanut requires the Kallah to study classes on Taharas Hamishpacha and immerse in a Mikveh before the wedding, in order to validate the officiation of the wedding. The Kallah must provide the officiating Rabbi with a signed note testifying as such, prior to the wedding.]

_______________________________________________________________

[1] See Meishiv Davar 2:33; Sdei Chemed Mareches Vav 27:3; Chelkas Yaakov 1:23; Seridei Eish 2:56; 3:28; Otzer Haposkim 49:3-11; Shearim Hametzuyanim Behalacha 147:5; Minchas Yitzchak 1:10; Koveitz Hapardes 13:6-7; Teshuvos Vehanhagos 1:730; Article of Rav Sharman in Habracha 7:31-50; Migdal Tzufim [Rav Gedalia Axelrud] 43; Seder Kiddushin Venissuin [Farkash] 13:4; Amudei Mishpat 7

[2] Michaber E.H. 44:9 regarding Mumar who was Mikadesh a Bas Yisrael; Yevamos 47b; Maharam Issurlin 62, brought in Beir Heiytiv 44:6 regarding Mumeres who was married by Yisrael

Is the marriage Biblically, or Rabbinically deemed as binding? Some Poskim rule that the marriage is only Rabbinically deemed as binding, while Biblically, they are not considered married. [Mahariy Mintz 12; Rashdam E.H. 44; Brought in Beir Heiytiv 44:7]

[3] Hagahos Mordechai [Shiltei Giborim] Perek Hacholeitz, in name of Rav Avraham Hagadol; Terumas Hadeshen 219; 223; Maharik 175; Maharil end of Teshuvos 205; Maharashdam E.H. 10; Ran Chulin p. 4b; Poskim brought in Birkeiy Yosef 4:14; Maharam Shick E.H. 14; Mahariy Asad Y.D. 31; Poskim in Minchas Yitzchak ibid

Other opinions: Some Poskim rule there is no intermarriage prohibition involved in marrying a Mumar or Mumeres. [Menachem Habavli; Teshuvas Beis Yosef Gittin 10; See Tiferes Lemoshe 113:9, brought in Pischeiy teshuvah Y.D. 112:1] Other Poskim rule that this prohibition only applies if the person converted to another religion and does not intend to repent and return to the Jewish people. [See Chasam Sofer E.H. 2:73; Likkutei Chasam Sofer 56; 83; Minchas Yitzchak ibid]

[4] See Teshuvos Vehanhagos 1:730

[5] Brought in Chavos Yair 185

[6] Semag Lo Sasei Mitzvah 103; Semak 292; Shimon Ben Tarfon in Shavuos 47a “From where is there a warning against arranging forbidden relations for an adulterer, as the verse states Lo Sinaf which can be read Lo Sanif.”; Shearim Hametzuyanim Behalacha 147:5; Teshuvos Vehanhagos 1:730;

Other opinions: The majority of Rishonim and Poskim do not mention this prohibition recorded in the Talmud. [See Chochmas Shlomo E.H. 22:1 who asks why it was omitted from the Rambam, Rif, Rosh, Tur and Shulchan Aruch] It is likewise omitted from most of the Poskim in first footnote who deal with this question this question. This implies that they do not hold of the prohibition. [See Habracha p. 34-35] However, see Rav Perlow on Sefer Hamitzvos Rasag L.S. 2:92 that according to these Poskim [as opposed to the Semag and Semak who do record it], this prohibition is included in the prohibition of Lifnei Iver and thus had no need to be recorded by them. So is likewise implied from Meiri Shavuos ibid that it is included in the prohibition of Misayeia Ledvar Aveira

[7] See Chochmas Shlomo E.H. 22:1, and Rav Perlow on Sefer Hamitzvos Rasag L.S. 2:92, that this is indeed the practical ramification between whether we rule like this Drasha; whether there is a prohibition even in cases that are absent of Lifnei Iver, such as in a case of Trei Avra Denahara. The novelty of the Drasha of Lo Sanif is that by prohibited relations we apply a prohibition even in such a case. However, see Rav Perlow on Sefer Hamitzvos Rasag L.S. 2:92 that according to those Poskim who omit the Drasha of Lo Sanif, the prohibition is included in the prohibition of Lifnei Iver and follows the same guidelines.

[8] Michaber E.H. 26:1; Tur 26 in name of Rosh

[9] See Rama E.H. 26:1 for a dispute whether it is permitted to have a girlfriend out of wedlock, even if she immerses in a Mikveh

[10] Rama ibid; Tur ibid

[11] See Migdal Tzufim p. 193-194; Amudei Mishpat 7

[12] See Migdal Tzufim p. 193

[13] See our Sefer Practical Halacha Vol. 1 Even Haezer Halacha 17 for three opinions on this matter!

[14] Implication of Rama E.H. 26:1, as explained in A; Zera Emes 2 Y.D. 106, brought in Darkei Teshuvah 154:6, regarding making Shidduch; Shearim Hametzuyanim Behalacha 147:5; Answer of Chazon Ish “Cruelty in this matter is considered mercy, as marriage with a stumbling block of a Kareis prohibition is similar to marrying off  a brother to a sister, and one who assists in doing so is cutting off the soul of the brother r”l.” Teshuvos Vehanhagos 1:476 that the Chazon Ish refused to help someone come out of prison who did not keep Taharas Hamishpacha, and Rav Shternbuch states that he himself does not arrange Shalom Bayis for such couples; 2:644 rules that it is forbidden to perform Shalom Bayis for a non-religious couple, as here to one is assisting in a Kareis prohibition by assisting them to have peace. He writes there that there is a tradition that one who assists in such marriages, it can damage him; 1:730 that one may not make a Shidduch for a non-religious couple due to fear that doing so will cause his children to become heretics and due to it transgressing the prohibition of Lo Sanif; Rav Shlomo Garelitz, Avad of Petach Tikveh, quoted in Habracha ibid p. 31-32 that one is only to perform Shalom Bayis for such a couple if they agree to guard Taharas Hamishpacha, otherwise it is forbidden to do so as rules the Rama E.H. 26:1 that the reason we force the couple to separate is because she does not immerse in a Mikveh, as explained in A; Ruling of Rav Yaakov Yosef z”l

Directive of Rebbe Rayatz: The Rebbe Rayatz once directed as follows: “Regarding that which you write that the girl refuses to keep Taharas Hamishpacha with a Kosher Mikveh, then if she does not regret her evil ways, the mother needs to tell her that she will not bless her on the day of her wedding, and she will not join the wedding, and she should follow through with her promise.” [printed in Igros Kodesh Rayatz]

[15] The reason: This is forbidden due to several of the prohibitions listed above: 1) Marrying them off transgresses Lo Sanif, which applies even if Lifnei Iver is not transgressed. [Shearim Hametzuyanim Behalacha 147:5; Teshuvos Vehanhagos 1:730; See Chochmas Shlomo E.H. 22:1; Rav Perlow on Sefer Hamitzvos Rasag L.S. 2:92] 2) Marrying them off can cause his children to become heretics. [Teshuvos Vehanhagos 1:730] Furthermore, despite the possible Halachic negation of the Lifnei Iver and other associated prohibitions, some Rabbanim avoid officiating at a non-religious wedding if the couple has not comminuted to observance of Tahras Hamishpacha, due to it being complacent towards the severe sin of intimacy with a Nida, and especially in light of the fact that doing so can increase the Mamzer population due to a Halachic divorce not being heeded in the event of separation. This is in addition to the fact that according to the Rama ibid it is implied that one must even make them separate, and that according to some Poskim.

[16] Heard from Rav Yaakov Yosef

[17] This retains the advantage of having them go through a Jewish ceremony, which does not bind the wife into a state of possible Mamzeiros if she were to separate from her husband and live with someone else. Nonetheless, this is only done if there is strong suspicion that the couple would not seek a Halachic divorce in the eventuality that they separate, and they refuse to commit to such.

[18] Meishiv Davar 2:32 regarding making Shidduch permits if is Parnasa, brought [and questioned] in Sdei Chemed Mareches Vav 26:3; Chelkas Yaakov 1:23; E.H. 75 “How can we say that we transgress by marrying them off if by doing so we save them from transgressing living together in Zenus”; Seridei Eish 2:57-7; 3:28; Otzer Haposkim 49:3-11; Minchas Yitzchak 1:10 “How correct are the words of the Chelkas Yaakov”; Rav Sharman in Habracha 7:31

[19] Does the Misader Kiddushin transgress Lifnei Iver or Misayeia Ledvar Aveira? The Poskim  ibid rule that one who officiates at a wedding for a non-observant couple, does not transgress the prohibition of Lifnei Iver, or Misayeia Ledvar Aviera, even if no guarantee has been received that they will observe the laws of Taharas Hamishpacha or go through the Halachic divorce process in the event of a divorce. [Poskim ibid; Teshuvos Vehanhagos 1:730 “There is room to be lenient from the aspect of Lifnei Iver”] The reason for this is because: 1) Lifnie Iver only applies if the couple has no other way of being together and sinning other than through the assistance of the Rav, when in truth non-religious couples are accustomed to engaging in intimacy regardless of the marriage and the Rav’s actions. 2) There are many Rabbanim who are willing to marry them off, and hence it is not a case of Dekai BeTrei Avrei Denahriy, in which Lifnei Iver does not apply. [See Rama Y.D. 151:1; Shach Y.D. 151:6; Minchas Yitzchak ibid that since they can anyways get married through a reform Rabbi, there is no Lifnei Iver; Meishiv Davar 2:32] 3) Lifnei Iver does not apply when one’s intent is to do a Mitzvah. [See Rama O.C .169:2; Rabbeinu Yonah Brachos 6; Bach 169; Chelkas Yaakov 1:23; Seridei Eish 2:57-7; See however Ritva Moed Kastan 17a; Sdei Chemed Vav 26:14; Chikikei Leiv O.C .19:23; Agudah Kiddushin 30a-26; Radbaz 1:375; Habracha ibid p. 46] 4) Lifnei Iver only applies when one gives the person the actual item of prohibition, like a non-Kosher food, and not when one provides them with a Kosher item that may later be used for a prohibition. [Seridei Eish 2:56 and Rav Elyashiv in Koveitz Piskeiy Halachos 59 based on their understanding of Bach ibid and ruling of Ritva Avoda Zara 63a; However, see Rav Sharman in Habracha p. 44 who negates this; Minchas Yitzchak ibid writes that Lifnei Iver only applies if the Kiddushin itself is forbidden, and not if the intimacy is forbidden] 5) The prohibition of Lifnei Iver only applies if the person will immediately transgress. [See Chelkas Yaakov 141:2; Amudei Mishpat 7 in length] 6) Some Poskim rule that there is no prohibition of Misayeia of Lifnei Iver by a Mumar. [Shach Y.D. 151:6; Minchas Yitzchak ibid; Unlike Machmirim in Rama Y.D. 156:1]

[20] The reason: As the vast majority of Rishonim and Poskim do not even record the Lo Sanif prohibition. The reason for this is because prohibition of Lo Sanif is included in the prohibition of Lifnei Iver and follows the same guidelines [See Rav Perlow on Sefer Hamitzvos Rasag L.S. 2:92; Meiri on Shavuos 43a], and hence all the reasons mentioned above to exclude from Lifnei Iver can also be used to exclude from Lo Sanif. [Rav Sharman in Habracha ibid]

[21] The reason there is no “Marrying a Mumar prohibition”: As this prohibition only applies if the person converted to another religion and does not intend to repent and return to the Jewish people. [See Chasam Sofer E.H. 2:73; Likkutei Chasam Sofer 56; 83; Minchas Yitzchak ibid that the world is accustomed like this opinion] In addition, the non-religious Jews today are considered Tinokos Shenishbu, and hence are not judged with the full severity of a Mumar. [See Binyan Tziyon 23; Maharsham 1:121; Minchas Yitzchak ibid] In addition, the prohibition of marrying a Mumar only applies if the other spouse is not a Mumar, while if they are both Mumarim, it does not apply. [See Tashbeitz 3:47; Minchas Yitzchak ibid]

[22] Seridei Eish 3:28 that so is his personal custom and that so was the directive of Rav Y.C. Zonenfeld that it is a grave prohibition to be Misader Kiddushin until the Kallah immerse sin the Mikveh; Chelkas Yaakov 1:23; E.H. 75; Minchas Yitzchak 1:10 in name of Shulchan Haezer 2:8-1 in name of Rav Chaim Zonnenfeld, and that so was custom in Hungary, and that so is his [Rav Weiss] personal custom; See Rav Sharman in Habracha p. 45

[23] The advantage of this approach: This approach maintains several advantages, as a) By having her immerse one time, one circumvents the prohibition of Lifnei Iver as he is no longer giving the Chasan a Cheftza Shel Issur, even if he knows that they will not continue to keep Taharas Hamishpacha. [See Rav Sharman in Habracha ibid] b) It assist the couple in fulfilling the Mitzvah of marriage and guarantees that they will no longer have intimacy out of wedlock. c) It raises the possibility that they will now continue to keep Taharas Hamishpacha. d) Refusing to officiate at such weddings can lead to enmity and further distance from the Rabbinate and Orthodox Jewry, and discourage them from any continued growth in Torah observance. [See Chelkas Yaakov 1:23; Seridei Eish ibid; Rav Sharman in Habracha p. 45] As for the suspicion that they might separate and live with others prior to getting a Halachic divorce, this worry is not strong enough based to overturn the gamble of the above advantageous.

[24] See Seridei Eish ibid that there that the Rabbanim in America are accustomed to be lenient and not ask if she immersed; See Rav Sharman in Habracha p. 45

[25] The reason: As in such a case, one knows for certain that the wife will commit infidelity, and by marrying them off one is causing her to transgress Esihes Ish, and possibly increase Mamzeirim in the world.

[26] Minchas Yitzchak 1:10

[27] The reason: As it is forbidden to marry a Mumar, as stated above. [See Minchas Yitzchak ibid in length]