As mentioned earlier the levirate marriage takes place between a widow who’s husband died childless and his brother (known as the levir); halitzah (“removal”) is a ceremony that releases the woman from the obligation of Levirate marriage, allowing her to marry someone else.
Although Levirate marriage itself no longer is practiced, traditional Jews still require halitzah, formally releasing the widow from the biblically required union with her brother-in-law. The widow appears before a tribunal of five people–three of whom happen to be rabbis. After some initial questioning as to what the widow and levir intend to do, the court gives instructions that each must carry out.
Each participant must pronounce in certain phrases in Hebrew; the woman also is instructed to fast until the ceremony. The next day, a special shoe is removed from the levir’s foot. The woman approaches him and proclaims in Hebrew, “My husband’s brother refuses to raise up unto his brother a name in Israel; he will not perform the duty of a husband’s brother unto me,” to which he replies, “I do not want to take her.” The widow then removes the shoe from his foot, tosses it away, and spits on the floor in front of him, saying, “So shall it be done unto the man that does not build up his brother’s house, and his name shall be called in Israel, the house of him that had his shoe loosened.” All present respond three times in unison, “he that had his shoe loosened.” Concluding prayers are read by the judges, and often a certificate that the widow is free to remarry is drawn up.
Even as late as the medieval era, rabbinic leaders like Rabbi Meir of Rothenberg, ruled that nowadays, no woman would ever consent to marrying her brother-in-law, and the practice of halitzah was no longer necessary. However, in the State of Israel today, the ultra-Orthodox rabbis (known as Haredim [= “Tremblers”], a.k.a. “Jewish Quakers”) refuse scores of women from remarrying without undergoing the traditional biblical ceremony—despite the humiliation this causes both the woman and her family.
In Israel, a most perplexing problem occurred that revealed the awkwardness of the halitzah ceremony as a viable religious practice. An elderly lady—about 60—wanted to register her marriage with the rabbinate after being widowed for four years and divorced from her second marriage. A clerk in the office observed that she never obtained halitzah from the brother of her first husband. Nevertheless, the rabbis ruled that she had to obtain permission from her former brother-in-law.
But here’s the catch.
The brother-in-law happened to be a diabetic and a double amputee from the knees down. Since the ceremony requires that the husband wear a shoe for the ceremony, here this proved to be impossible! In the end, the rabbis found a loophole to bypass the ceremony, the brother-in-law happened to be impotent—hence, no ceremony! Given the exploitation of Orthodox women in Israel and in the Diaspora, oftentimes women find themselves subject to extortion in order to become free.
A more serious problem could occur where the brother-in-law is missing in action, and his whereabouts remain unknown. The widow could find herself in a situation where she could never halachically remarry without firsthand evidence that her brother-in-law is officially dead. The same problem could occur should the brother-in-law be in a coma-like state.
Halachic solutions are necessary, but fortunately there is a sound precedent to eliminate the need for the halitzah ceremony to occur, as Rabbi Meir of Rothenberg ruled centuries earlier. Where there is a Halachic will, there is always a Halachic way. Here’s an even better example how flexidox Halacha can function according to subsequent Halachic scholars. Rema (ca. 16th century) rules in the Shulkhan Arukh (Even Ha’Ezer 154): “If a man marries a woman and his brother has converted to another religion, he can marry her on the condition that if he dies without children, the marriage to him will be deemed null and void.”
Some scholars propose that the marriage contract known as the Ketubah, stipulate that the marriage (kiddushin) would not take effect if the husband dies without children. This method has been used throughout much of Jewish history. Ultimately, creative solutions will face obstacles from the rabbinate until female scholars and their male counterparts eventually re-write the Halacha themselves to meet the sensibilities of our time.