Kohanim Marrying Gerushos?

Question

I am a rov in South America and one of the heads of kashrus supervision in the city where I live. Recently, I was asked the following question: One of the judges in the secular courts is a non-religious Jew. Even though he was not brought up religious, the family lives a moral life and in addition when he and his father go to shul once a year on Yom Kippur, they present themselves as kohanim and take part in nesiyas kapayim.

About a year ago, the judge divorced his wife with a kosher get and entered a relationship with a non-Jew. Recently, he left the non-Jew and is now living with his original wife and wants to get remarried. Since for a kohein to marry a gerusha, even his original wife, is a Torah prohibition, as his rov I am in a very difficult predicament. On one hand, I do not want to push him away from Orthodox Torah observance, yet I cannot be mesader kiddushin between a kohein and a gerusha.

I have seen two teshuvos from Rav Moshe Feinstein zt”l in Igros Moshe (Even Ha’ezer 4:11,39) that imply that a non-religious Jew is not believed to establish that someone is a kohein. If this is the case, then this could allow the judge to remarry his ex-wife, since he only knows that he is a kohein because of the testimony of his non-religious father (who heard it from his non-religious father). However, I have heard that this ruling may only apply if the individual in question has not been a "practicing" kohein, e.g., he has not been doing nesiyas kapayim. If this is true, then there would be no room to be lenient in this case, where we know that the judge and his father and his grandfather have been practicing kohanim for the past three generations.

I would like to clarify this ruling further. Is the reason that this leniency does not apply to practicing kohanim because there is chezkas kehunah, i.e., since he is a practicing kohein, we are not relying on the testimony of the non-religious parent, but rather on the chazakah that teaches us that if someone does nesiyas kapayim, he is a kohein?

If that is the case, would this not depend on how the original chazakah was established? Does it depend on whether the kohanim in question live in a place where the tzibbur will not tolerate anyone acting like a kohein unless he can establish that he is really a kohein? In the city where I live, just about anything goes, and since no one would ever comment on this, perhaps being a practicing kohein is not significant enough to make a chazakah.

Furthermore, does the chazakah depend on whether the individual in question understands the significance of what he is doing, e.g., that for a non-kohein to recite Birkas Kohanim is a brocha levatalah? If so, perhaps a non-religious kohein who does not understand what he is doing does not create a chezkas kehunah.

In addition, since the judge under question only comes to shul on the Yomim Noraim, he never gets the aliyah of kohein in shul. Is the chazakah established from his getting up to do nesiyas kapayim or also from the fact that he sometimes gets the aliyah of kohein in shul? If the chazakah depends on receiving aliyos, this would be another reason to say that the chazakah does not apply here.

In summation, it seems to me that there are three reasons why the fact that the judge and his father acted like kohanim for all these years may not create a chazakah that they are kohanim: 1) The community where I live would not make an issue about someone who claims to be a kohein. 2) The judge and his father do not see any significance in the fact that a non-kohein reciting nesiyas kapayim is a brocha levatalah. 3) They only come to shul on the Yomim Noraim and do not regularly receive aliyos in shul.

All this being said, it seems that even when there is no chezkas kehunah, as halacha lemaaseh, the Igros Moshe was only lenient when the couple is already married and we are coming to decide if they need to get divorced, i.e., bedieved. Rav Moshe does not write that someone single can rely on this leniency to get married. Perhaps this is a reason to be stringent in our case, or, alternatively, since the judge and his ex-wife are already living together as husband and wife and want to get married halachically to legitimize their relationship, perhaps we can view this case as if they are already married.

As the rov of the community, I am very concerned about this shailah. If he is considered a kohein, I certainly do not want to be part of enabling a Torah prohibition to take place. Yet, at the same time, if I do not perform the wedding, the judge under question may go to a non-religious rabbi to perform the marriage. It will push him away from Orthodox Judaism, which I do not want to do. If there is room to be lenient in this case, I would like to know.

Thank you.

Rav Auerbach 

I understand the severity of this situation, but one thing must be made clear: There is no room to be lenient to transgress a Torah prohibition for the sake kiruv rechokim. As you correctly stated, since the family lives a moral life the only way that we could start to consider a heter is if there is a doubt if this individual is really a kohein or not. In this case, there is no doubt. For at least the past three generations, his family has been acting like kohanim. The sevaros that you mentioned are not sufficient to override the chazakah that has been created by the fact that this family has been practicing as kohanim for three generations. From what I have heard, even Rav Moshe Feinstein zt”l would not be lenient in such a case.

Therefore, you should definitely not perform this wedding, and not send him to any other rov who would be willing to do so. Your responsibility is to uphold the Torah, and if you perform this wedding, you are undermining the Torah prohibition against a divorcee marrying a kohein.

If they do get married, there will be no brocha in their relationship. The man under question is a judge and should appreciate that just as there are many secular laws that cannot be transgressed, under no circumstances is a kohein allowed to marry a gerusha. (This teshuvah only applies to this specific case under discussion.)