Retroactive Invalidation of Conversion
May 20, 2008 In light of the controversy in Israel concerning the purported retroactive invalidation of thousands of conversions to Judaism, this morning we studied a teshuva from Kollel Eretz Hemdah with respect to the standards for viewing conversions retroactively as invalid. By way of background, Rabbi Kermaier recalled that in his days in Hong Kong there were difficult questions when he was presented with conversion certificates. For instance, what should one make of a situation where a Kohen marries a convert, which he is not allowed to do? A recurring issue was the legitimacy of a conversion where it was obvious that the convert did not observe halacha. Should such a conversion be deemed invalid after the fact?
The question for Kollel Eretz Hemdah came from Karlsruhe, Germany. How should one treat a situation where a convert went through the process of conversion in accordance with halachic norms, but he continues to violate Shabbat, etc.? Is the fact of non-observance evidence that the convert defrauded the court? Is the conversion valid? Is the convert deemed a Jew? Rabbi Kermaier noted that this question goes to the heart of the current dispute in Israel and the 2007 agreement between the RCA and the Israeli Chief Rabbinate on the issue. He added that, while the Rabbanut expressed concern about substandard conversions in the United States, there are many substandard conversions in Israel, too, both under the auspices of the Rabbanut and Haredi courts. Against this background, Kollel Eretz Hemdah answered that one cannot nullify a conversion performed by an Orthodox beit din, even if the convert did not provide full disclosure or sincerely accept the mitzvot, so long as the convert genuinely wanted to become Jewish. Rabbi Kermaier added that he has personally relied on this standard but that the matter is not free from controversy. The Shulchan Aruch states (Yoreh Deah 268:3), with respect to the essential elements of conversion: All of the elements of conversion – whether informing him of the mitzvot in order to receive them, milah (i.e. ritual circumcision), immersion (i.e. in a mikvah) – they need to be done before three who are kosher to judge, and during the day. However, this is limited to ab initio circumstances, but in post facto circumstances, if his circumcision or immersion was in front of only two (or relatives) or at night, even if he did not immerse for the sake of conversion but a man who immersed because of a seminal emission or a woman who immersed on account of her state of separateness (i.e. because of her period) this is a convert and is permitted to a Jewish woman – except for the receiving of mitzvot, which blocks [conversion] if it is not done in front of three and during the day. But according to the Ri”f and the Ramb”am, even bediavad if someone immersed or was circumcised in front of two or at night, this blocks and he is forbidden to a Jewish woman. But if he married a Jewish woman and he had a child with her, we do not invalidate that child. [Emphasis added.] The emphasized phrase demonstrates the majority view that the final element of conversion, accepting the mitzvot, must be before a properly constituted beit din. There is a minority view, following R. Uziel (1880-1953), that the conversion should be accepted, after the fact, even in the absence of acceptance of mitzvot. This view is not generally accepted in the Orthodox world, but the adherence to it by some Orthodox rabbis in the US helped to generate the original controversy between the RCA and the Rabbanut. Footnote 2 of the teshuva cites the Rambam’s position, in which the Ritva (1250-1330) concurs, that acceptance (i.e., non-acceptance) of the mitzvot does not block conversion after the fact. In the words of the Rambam: 
R. Shaul Yisraeli (1910-95), relying on the Rambam, said that the essence of conversion is acceptance of becoming part of the Jewish people. With such acceptance, there is implicitly acceptance of the implications of being Jewish, viz., adherence to the Torah and mitzvot. On the other hand, one who explicitly rejects the mitzvot does not truly accept becoming part of the Jewish people and would not be deemed a convert. (Footnote 2 further observes that R. Moshe Feinstein (1895-1986) took a more stringent view, while R. Herzog (1889-1959) ruled that the nominal convert would become a doubtful convert under circumstances where he did not observe the mitzvot.) The text of the teshuva continues by saying that all this — the view that the Orthodox conversion should not be invalidated retroactively — is said post facto. Ab initio, however, a beit din should not convert someone who is unwilling to accept all the mitzvot. Rabbi Kermaier further noted that others take a more stringent view and hold that, if we retroactively see that there was no acceptance of mitzvot, then the conversion was invalid. What is more, even the authors of this teshuva, who take a more lenient view, would likely conclude that if it were obvious that the conversion was fraudulent, that it would be invalid.
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