Sources and Reasoning:
The Rambam’s Position Regarding a Kohen Who Married a Divorcée
The Rambam writes in Chapter 15 of Hilchot Tefillah and Nesiat Kappayim, halachot 1–3, as follows:
Six matters prevent a Kohen from duchening: speech, physical blemishes, transgression, age, wine, and impurity of the hands….
How does transgression apply? A Kohen who killed a person, even if he repented, may not duchen, as it is stated, “Your hands are full of blood,” and it is written, “When you spread forth your hands,” etc. A Kohen who worshipped idolatry, whether under duress or inadvertently, even if he repented, may never duchen, as it is stated, “But the priests of the high places shall not ascend,” etc. A blessing is akin to Temple service, as it is stated, “To minister to Him and to bless in His Name.” Likewise, a Kohen who apostatized to idolatry, even if he returned, may never duchen. Other transgressions do not prevent him.
The Rambam’s words seemingly indicate that a Kohen is disqualified because of transgression only in these three cases: a Kohen who killed a person, even unintentionally; a Kohen who worshipped idolatry; and a Kohen who apostatized. This implies that a Kohen who married a divorcée, or even one of the arayot, is not disqualified from duchening.
However, this is difficult, for the Beit Yosef, Even HaEzer siman 6, cites that the Rambam himself excommunicated and placed under ban a Kohen who married a divorcée. This is the language of the Beit Yosef:
The Rambam, in a responsum, siman 150, wrote in the introduction to Shalcha B’no Amon concerning a Kohen who married a divorcée: He placed both of them under ban in Egypt and Cairo, and sent the writ to the place where this evil deed was committed, instructing them to place them under ban by name. He banned every Jewish man and woman from conducting business with them, eating or drinking with them, or sitting with them within four cubits. Whoever joined them in celebration or mourning would be like them; whoever associated with them in life or death would be obligated to stone their coffin when they died; and their burial would be without tzidduk ha-din, and joy and rejoicing should be shown at their downfall. He commanded women, with the utmost warning, not to enter anywhere with that immoral woman, even a bathhouse. This is fitting for us, who heed the words of the Rav: we must separate and distinguish from all those who rise against him and transgress one of his commandments, and not allow any partnership or association with them in any matter or in any way, until they return to Hashem. When they return, he shall divorce her, and both shall come before beit din. Each shall receive malkot mardut, and each shall swear upon a sacred Sefer Torah never to repeat such conduct, and that he shall never again marry women forbidden to him. They shall confess their sin publicly, just as they sinned publicly. Then we will release them from the ban. If they persist in their rebellion, inform us, so that writs may be sent to nearby and distant cities, and renew the public ban upon them if they do not repent. For it is impossible to be lax regarding this great evil deed—to raise a hand in rebellion and openly and publicly deny Moshe and His holy Torah—and to ignore it. Chas v’shalom that we should show favor in this matter, fear any person, or act for his honor. May the Merciful One, Who is slow to anger, bring them back to the proper path. End quote.
Indeed, there is no difficulty between the Rambam’s statements. In Hilchot Tefillah and Nesiat Kappayim, the Rambam addresses the basic law: which transgressions permanently disqualify a Kohen from duchening, even if he ceases the transgression and repents. However, the Sages additionally imposed a penalty of excommunication upon any Kohen who marries a woman forbidden to him as a Kohen, for as long as he remains in the transgression, in order to cause him to desist. Regarding this ban, once he repents and publicly accepts not to return to this sin, he is accepted and the ban is lifted, and he may duchen. Thus, there is no contradiction.
A Kohen Who Married a Divorcée May Not Duchen
Regarding practical halachah, the Beit Yosef, Even HaEzer siman 6, cites Mahari Abuhav, who wrote that “according to all opinions,” a Kohen married to a divorcée may not duchen and may not receive an aliyah to the Torah, because at every moment he persists in his rebellion. “According to all opinions” implies even according to the Rambam, as explained above: although according to the Rambam he is not fundamentally forbidden to duchen, he is nevertheless placed under ban, as stated above.
The Beit Yosef further cites that the Rashba explicitly wrote in a responsum, vol. 7, siman 21, that a Kohen who married a divorcée is not accorded the sanctity of Kehunah, even to be called first to the Torah. Even if he divorced her or she died, he remains disqualified until he vows, in the presence of many, to forgo benefit from the women forbidden to him, as stated in Bekhorot. The Beit Yosef ruled in accordance with Mahari Abuhav and the Rashba, who explicitly prohibited a Kohen who married a divorcée from duchening.
The Shulchan Aruch likewise rules, Orach Chaim siman 128 סעיף 40:
A Kohen who married a divorcée may not duchen, and he is not accorded the sanctity of Kehunah, even to be called first to the Torah. Even if he divorced her or she died, he remains disqualified until he vows, in the presence of many, to forgo benefit from the women forbidden to him.
Although the Rambam wrote, and the Shulchan Aruch rules in סעיף 39, that a Kohen who is not meticulous in mitzvah observance is not prevented from duchening by other transgressions, as the Rambam wrote that we do not say to a wicked person, “Add more wickedness,” the Levush and the Olat Tamid, se’if katan 90, explain that this applies only to transgressions concerning which Kohanim are not warned more than other Jews. But transgressions concerning which Kohanim alone are warned, by virtue of the sanctity of Kehunah, disqualify him from all privileges of Kehunah. See also Shut Yabia Omer, vol. 7, Orach Chaim siman 15.
A Kohen Living with a Divorcée Without Chuppah and Kiddushin—May He Duchen?
There is, however, room to consider the law regarding a Kohen who did not marry the divorcée but merely lives with her without chuppah and kiddushin. According to the Rambam, a Kohen does not receive lashes for the prohibition of “they shall not take” unless he marries her and has relations with her, as stated by the Rambam in Chapter 17 of Hilchot Issurei Biah, halachah 2. This differs from the view of the Raavad and the Ramban, who maintain that he receives lashes even without kiddushin. See Minchat Chinuch, mitzvah 266.
However, the Pri Megadim, Eshel Avraham siman 128, se’if katan 58, already considered this question and wrote that although the Shulchan Aruch speaks of a Kohen who “marries” a divorcée, the same applies to illicit relations without chuppah and kiddushin if he is established in such conduct. Although the Rambam writes that a Kohen who has relations with a divorcée without kiddushin does not receive lashes, even if he is not liable to lashes, there is nevertheless a prohibition involved—namely, a prohibition of Kehunah in addition to the prohibition of kedeshah—and it may be a Torah prohibition. Therefore, a Kohen who has illicit relations with a divorcée, if he is established in such conduct, is disqualified from duchening until he vows not to return to his folly.
So too, Shut Maharam of Rothenburg explicitly writes (Jerusalem edition 5717, siman 42; its source is Hagahot Maimoniyot, Oxford manuscript, end of Chapter 15 of Hilchot Tefillah; cited in Halachah Berurah on siman 128, סעיף 40), in accordance with the Pri Megadim. He was asked about a Kohen suspected of relations with a non-Jewish woman, for seemingly the Mishnah speaks specifically of one who “marries” women in transgression, etc. He replied: If he was suspected based on witnesses, and all who know him know that he has been established in this conduct through three occurrences, then it is comparable to one who marries. The Mishnah mentions marriage only to teach that he must be specifically accustomed to such conduct, like one who marries, and lest you say that even a single occurrence suffices, etc. End quote. This is also evident from Shut Geonei Mizrach U’Ma’arav (siman 171), which writes that a Kohen habitually engaged in immorality is unfit for Nesiat Kappayim, “for he has lost his presumed status through his regular association with residences designated for the hiring of prostitutes.”
Although Shut Binyan Tzion, vol. 1 (siman 6), inclines to be lenient concerning a Kohen living with a non-Jewish woman without marriage, since Shut Maharam of Rothenburg explicitly prohibits duchening even for one who did not marry her, and the Pri Megadim likewise rules so, who could be lenient against them? Especially since Shut Binyan Tzion did not practically rule leniently unless other halachic authorities agreed with him, and we see that the halachic authorities did not agree with him.
I have likewise seen that Shut Kinyan Torah, vol. 4, Orach Chaim siman 12, rules regarding precisely this question—whether a Kohen living with a divorcée without chuppah and kiddushin may duchen—and elaborates in proving that he is certainly disqualified from Nesiat Kappayim. He concludes that although Shut Binyan Tzion inclined to be lenient in all this, it did not cite any of the above, not even the Pri Megadim; moreover, it did not practically permit this unless halachic authorities agreed. So too is the practical ruling in Shut Ish Matzliach, vol. 1, siman 26. Shut Maayan Omer, vol. 1, chapter 6, סעיף 10, likewise records that Maran Rabbi Ovadia Yosef zt”l ruled this way.
Even if one were to say that the matter remains disputed, it is preferable to refrain from action. However, in the case at hand, members of the community have objected to allowing him to duchen and have come to ask the posek. In such a case, if we permit him to duchen, we would, chas v’shalom, be strengthening the hands of transgressors.
See Shut Beit David siman 6, which was asked about a Kohen living with a divorcée without chuppah and kiddushin, who had children with her. He came before the rabbi and related that he traveled to a place where he was unknown and married her through chuppah and kiddushin. He asked the rabbi to sign a document confirming that he had married her, so that he could register as married under the laws of the state and the children would bear his name. The rabbi replied that there was no doubt that it was forbidden for him to sign, so that it should not spread the report that we strengthen the hands of transgressors.
Therefore, in practice, we may not permit a Kohen living with a divorcée to duchen or to receive the first aliyah to the Sefer Torah. Even if one were to say that it is possible to overlook the matter and not raise it on our own initiative, once members of the community have already raised the matter, we may not permit it. Although the Kohen is a baal teshuvah and is in the process of drawing closer to Judaism, it should be explained to him gently that a Kohen is forbidden to live with a divorcée, and as long as he lives with her, he desecrates the Kehunah and may not be accorded its privileges. However, if he leaves the divorcée and accepts upon himself, in the presence of many, never to commit this transgression again, he may return to duchening and receiving the first aliyah to the Torah.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. Therefore, it may contain inaccuracies and should not be considered a definitive reference.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. It may therefore contain inaccuracies and should not be considered a definitive reference.
