MARK WASHOVSKY
whether he or she will likely observe the commandments. Thus Herzog, while agreeing with Kook in theory, is much more flexible on the issue of these conversions in practice. The difference is the result of discretion: Herzog is no more forced to cite the alternative precedents and practices than is Kook forced to omit any mention of them. Both of them choose to cite or to ignore the data, and their choices determine their final rulings.
Herzog gives us an example of what we might call the "alternative theory" in halakhic decision-making. A poseq declares the halakhah according to his best understanding of it and at the same time seeks to explain the reasoning behind the contrary or opposite ruling, even though he himself rejects that reasoning. As his example shows, this is no mere act of intellectual courtesy. Practical legal consequences stem from the existence of an alternative theory, in much the same way as a minority opinion, though rejected, carries concrete halakhic implications.” A similar illustration emerges from two of the rulings of R. Moshe Feinstein on our subject.”
The first of these deals with a Jewish man who married his Gentile spouse in a civil ceremony; the couple have lived together for a number of years, and they have a son. Feinstein declares that there is no rabbinic impediment to a Jewish marriage in this instance. Contrary to R. Shelomo Kluger, he limits the prohibition in M. Yevamot 2:8 to a man suspected of a liason with a Gentile woman and excludes the man who has lived openly in a marital relationship with her. There is, however, a Toraitic impediment: the woman needs to become a Jew, and conversion in such a case is forbidden. On this issue, too, Feinstein parts company with Kluger. He suggests, as does R. Meir Arik, that while this couple do not require a conversion in order to live together as husband and wife, "there may be some other ulterior motive[sibah] that impels her to
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