Halakha Ulangan 23:2: Mishneh Torah, Marriage, Gray Matter II, Mishneh Torah, Negative Mitzvot & Sefer HaChinukh

Intercourse prohibitions according to the Torah for which there is no punishment of karet are called “negative prohibitions”. They are also called “holy prohibitions”. There are nine [such prohibitions] and they are: a widow to a high priest, a divorced woman or zona or ḥalala to a high priest or to an ordinary priest, a mamzeret to an Israelite man, an Israelite woman to a mamzer, an Israelite woman to an Ammonite or Moabite man, an Israelite woman to one with crushed [genitals], or severed [genitals], one’s ex-wife after she has remarried, one’s yevama who married a stranger while still under the yavam’s control. A ḥalutza is like a divorced woman and is forbidden to a priest according to Rabbinic law. The Gibeonites are like mamzerim, whether male or female, and they are prohibited according to Rabbinic law. The Gibeonites will be explained in the Laws of Forbidden Intercourse.

While the child of a non-Jewish father possesses merely undesirable lineage, sometimes one’s lineage poses a serious problem of actual illegitimacy. For example, the child of a woman’s second marriage faces concern for mamzeirut (illegitimacy) if his or her mother remarried without receiving a valid get (divorce document) from her first husband. Should the child indeed be a mamzeir, he or she may not marry anyone other than a fellow mamzeir or a convert. In many contemporary situations, though, poskim can permit the child to nevertheless marry because they determine that the mother’s first wedding did not meet halachic standards.¹⁵See our first volume (pp. 63-90) for a discussion of the halachic status of non-Orthodox marriages. As we repeatedly note in that discussion, one must make every effort to avoid such situations of possible mamzeirut by performing a proper get even when a civil court judge or Reform rabbi officiated at the wedding. In such situations, where one may marry only due to a lenient ruling of an eminent halachic authority, Rav Malkiel Tannenbaum (Teshuvot Divrei Malkiel 3:90) and Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 7:48:5:15-17) require divulging the full background to any prospective mate. Since questions of mamzeirut often depend on disputed points in Halachah, a prospective spouse could reasonably hesitate to rely upon the same view as the poseik who ruled leniently in a particular case. Hence, one may not conceal such issues from a prospective mate.¹⁶See, however, the Steipler Rav’s aforementioned discussion of the Gemara in Yevamot. The Steipler Rav addresses a case involving a man who was permitted by prominent poskim to marry despite concern that he was a petzu’a daka (one with crushed testicles; see Devarim 23:2). The Steipler Rav focuses his discussion on whether the man must tell dating partners that this injury might affect his reproductive capabilities. Interestingly, though, he does not mention any obligation to tell the prospective bride that he could marry her only due to a lenient ruling (that he is not a petzu’a daka), perhaps implicitly disagreeing with the Divrei Malkiel and Tzitz Eliezer.

That a bastard shall not marry the daughter of an Israelite, as it is said, “A bastard shall not enter into the congregation of the Lord” (Deut. 23:2).