Wednesday, December 28, 2011

Bechoros 45b - Kohein Marrying a Gerusha

The Mishna says that a kohein who marries a woman who is forbidden to him must make a neder to make her off limits in order to be kasher to do avoda. The gemara says that even if he hasn't actually divorced her, he can make the neder to continue doing the avoda and divorce her when he is done with the avoda. The gemara explains that we insist on a neder rather than just a formal acceptance that she should be off-limits to him (which is what we require for a kohein who is me'tamei l'meisim) because there more of a yetzer ho'rah for women who are forbidden to him.
The Shulchan Aruch (128:40) writes that a kohein who is married to a divorcee is not allowed to do birchas kohanim, nor is he entitled to any privileges of a kohein such as reading first in the torah. Even if he actually divorces her, he isn't entitled to these privileges until he makes a neder על דעת רבים which cannot be overturned that he will not marry women who are forbidden to him. Although the gemara seems to allow him to continue to do avoda after making the neder, even before divorcing her, we demand both that he divorce her and that he make the neder. The Be'er Hei'tev explains that the gemara only allows him to temporarily complete the avoda because he will divorce her immediately when he is done, but he is not allowed to simply make a neder and continue to stay married to her (he must divorce her at the first opportunity).
The M.B. explains that this penalty applies only to aveiros that are specific to kohanim, not to aveiros that apply to regular Jews as well (such as chilul shabbos). The M.B. quotes the Rambam who explains that when a kohein is lax in one mitzvah we don't add to his laxity in mitzvos by forcing him to forfeit the mitzvah of birchas kohanim. The concern of a rasha giving a bracha to klal yisroel he downplays because the bracha is really from Hashem, not from the Kohein.
The situation recently arose about a kohein who has been living with a non-jewish woman for many years and was recently told that he can no longer du'chan. What is the status of a Kohein who is living with a non-jewish woman? Does this qualify as a violation of something that we penalize him for by removing his privileges to du'chan and get the first aliya, or is this considered to a be a violation of other aveiros that doesn't ruin his rights as a kohein (which the mishna berura says includes even arayos)? Would we consider being married to a gerusha worse in this sense than being "married" to a non-jewish woman? To me it would seem very strange that a kohein who is "married" to a non-jewish woman would be kasher to duchan but if she would convert (making the issur slightly less severe), he would be passul. It is possible that although we don't remove privileges of a kohein who violates arayos or other aveiros, that is because each aveira is separate and in between he is not in a state of doing aveira. But, when he is "married" to a goy, since he is in a constant state of "being married" (meaning living b'kvius with her), it is not better than being married to a divorcee and we don't let him du'chan. A similar distinction is made by the Biur Halacha who discusses a kohein who is me'tamei l'meisim. The language of the Shulchan Aruch implies that even if he only does it once he becomes passul, but the language of the Mishna implies that only if he does it regularly does he become passul. The Biur Halacha asks, why when he marries women even one divorcee would he become passul, he only did it once? To this he answers - כיון דהוא מחזיקה לאשה ועומד במרדו הלא הוא מועד לאיסור זה. Meaning, a kohein who marries a gerusha is in constant violation of the prohibition, and the same may be said when he "marries" a goy. It seems to me that although there is to תפיסת קדושין to a goy, the penalty should still apply. Just as those opinions who hold that there is no tefisas kiddushin between a kohein and a gerusha would certainly agree to the Mishna that we penalize a kohein from "marrying" a gerusha, the same can be said for a goy. Even though there is no technical tefisas kiddushin, the k'vius of being legally married or living together permanently could be similar to marriage to a divorcee.
I just found that the Aruch La'ner addresses this question in his teshuvos Binyan Tziyon (6).  SEE HERE. He seems to assume that a goy is considered a p'sul kehuna because the Rambam writes that a kohein who has relations with a goy receives lashes for relations with a "zona". The Rambam clearly considers a goy to be from the p'sulei kehuna. Yet, he leans toward being ma'tir since the issur here seems to only be a penalty d'rabonon and we only find it in a situation where he is actually married. However, he isn't willing to be matir l'ma'aseh unless another posek would agree with him.

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