Our society has undergone substantial and far-reaching changes over the course of the last two generations. The changing role of women in our culture, and the concomitant ethos of egalitarianism, is one of the shifts that has proven most challenging for our community, that is, the community committed to observance of Orthodox halakha.1 As women have assumed an expanding variety of roles, including leadership positions of all sorts which were by and large closed to them in previous eras, the dichotomy between the roles available to observant women outside of the religious realm and those available within it has become increasingly evident.
Our communal life has undergone many changes in response to these societal developments. It is now routine for women to vote in elections in Orthodox shuls and to serve on the boards of Orthodox synagogues and communal institutions. In our Modern Orthodox community, girls expect to mark their reaching of gil mitzvot with a bat-mitzvah celebration, and the sight of girls and women with lulav and etrog on Sukkot or of a woman mourner reciting Kaddish is increasingly common. At the same time, Orthodox Jewish ritual life is governed by halakha, which limits the participation of women in religious ritual. It is our challenge and responsibility to limn the contours of responses to the changed role of women within society that are permissible within the bounds of halakha – and that conform to the norms of halakhic process – while eschewing or rejecting those that stray outside of the bounds of halakhic permissibility.
In recent years, the question of partnership minyanim, that is, minyanim that permit women to receive aliyyot, has moved to the front of our communal consciousness.2 Proponents of these minyanim argue that these innovations conform to normative halakhic procedures, that they are in keeping with the many ways that Jewish law has changed over time and that they are appropriately deemed “Orthodox” in practice. Others, including all recognized Orthodox poskim,3 have rejected this innovation on the grounds that it does not conform to normative halakhic procedures. What follows is an exploration of the status of partnership minyanim within halakha.
Before the question of the status of these minyanim can be addressed, however, it is necessary to explore more broadly how change occurs in halakha. On the one hand, it is self-evident to even the most casual observer that many changes have been introduced within Jewish life, including communal ritual life. Synagogue sermons are delivered in English; our Shabbat kitchens contain urns, hot plates and slow cookers that our forbears could not have imagined; we rely on timers to turn lights on and off within our homes on Shabbat; Modern Orthodox girls’ high schools routinely include Talmud study as part of the curriculum. At the same time, change remains one of the most complicated aspects of the halakhic system.
It is indeed the case that there are many practices in halakha that are common today that differ from practices of the past. However, not all practices (and not all apparent changes) are the same. Understanding how these changes have occurred is crucial for understanding what types of changes are methodologically consistent with and ideologically faithful to our halakhic system as it exists. Those kinds of changes are the ones likely to find acceptance in our Orthodox observant community and with those who rule on halakhic issues for that community. A brief taxonomy of the categories of change in Jewish practice and in halakha is in order.4
Apparent Halakhic Change
Sometimes what appears to be a change in halakha, is in fact not a change at all, but rather the application of halakha to a different set of realia. That we might desecrate the Shabbat for a specific condition for which observant Jews might not have done so a hundred years ago does not reflect a change in halakha. The principle that danger to life overrides Shabbat observance remains the same; it is the determination of what constitutes a danger to life that has changed as medicine has evolved. That represents a change in our understanding of the facts, not a change in law.
The position of Rav Moshe Feinstein, that halav stam, or milk produced without kosher supervision in the United States, is permissible5 similarly represents a response to changed realia, not a change in halakha. Rav Moshe did not argue that the prohibition of halav ‘akum no longer applies. Rather, Rav Moshe observed that the Talmud itself asserts that a Jew does not have to see the actual milking of an animal to permit the consumption of its milk. According to the Talmud (Avodah Zarah 39b), if a Jew were to sit outside the cattle pen in such a way that were he to stand up he would be able to observe what the non-Jew was doing, this would suffice to render the milk fit for Jewish consumption under the principle of mirtat (the non-Jew is afraid of being caught). Rav Moshe then argued that government supervision, i.e. potential penalties and loss of business reputation, creates the same presumption of mirtat and hence all commercially produced milk in the United States, labeled as coming from a kosher animal, is considered halav yisrael. This is not a change in the halakha; rather, it reflects the application of the halakha to a changed reality. Put differently, Rav Moshe does not argue that the laws of halav yisrael don’t apply in America because the reasons don’t apply, but that the gemara’s criteria for halav yisrael are satisfied by government supervision. Even Rav Moshe would agree that if one were to purchase milk from a farmer privately, without expectation of government supervision, that such milk would be considered halav akum unless a Jew actually supervised it – this despite the reality that it is highly unlikely that anyone in the United States would be milking anything but a kosher species of animal.
Non-Halakhic Social Change
Some changes are not fundamentally halakhic, but social in nature. They may be construed as halakhic change, but in reality they reflect a change in attitudes rather than in halakha. A prime example of this would be the marking of the bat-mitzvah. Putting aside questions of what halakhic rituals might be performed, the marking and celebrating of a bat-mitzvah does not touch upon substantive halakhic issues.6 The fact that a century ago a young woman’s reaching gil mitzvot might have gone unnoticed whereas today that occasion is marked in some fashion in a large part of the observant community reflects a significant change in attitudes, undoubtedly influenced by a change of the status of women in broader society. One can attempt to discuss it in halakhic terms, but it is not technically halakhic in its nature.
Abrogation of Halakha
Permanent abrogation of a halakha is entertained as a theoretical notion in halakhic discourse. Practically speaking, it occurs so rarely that it is difficult to point to examples of this theoretical principle at work. The decision to violate the prohibition against committing to writing any Torah other than Scripture by writing down the Oral Torah is the paradigmatic example of abrogating a halakha in response to the exigencies of the moment, or et la‘asot la-shem heferu toratekha. At some point in the Rabbinic era, possibly in response to the concern of oral traditions being forgotten, it was decided that the Oral Torah, heretofore transmitted orally, could (and should) be committed to writing, prohibition notwithstanding.7 While this episode is helpful as a conceptual model, it provides little illustration of the decision-making process at work as we know about it only post-facto.
The contemporary practice of teaching women Torah, including Torah she–Bikhtav, may be a second case in which a prohibition has been abrogated. The prohibition against teaching women Torah of any sort was expressed by the Tannaitic sages and was codified by both Rambam and Shulhan Arukh; neither codification elicited any expression of dissent.8 The Chafetz Chaim nevertheless approved of teaching Torah she–Bikhtav to women, despite the explicit prohibition against doing so, in response to concerns about assimilation of young Jewish women in the absence of formal Jewish education. While teaching women Torah she–Be‘al peh remains controversial in some quarters, teaching women Torah she–Bikhtav is de rigueur in almost the entire Orthodox world. It is far from clear, however, that this change represents an abrogation of halakha. The prohibition of teaching women Torah was not formulated in the Mishnah as a prohibition (“one who teaches his daughter Torah is as if he teaches her frivolity”, Sotah 21b) and for centuries before the Chafetz Chaim women were studying tzenah u-renah, a commentary on the written Torah aimed at women. There were also a few well known Jewish women over the course of the ages who were accomplished scholars, something which is hard to fathom were there an outright prohibition on teaching women Torah. The fundamental change represented by the position of the Chafetz Chaim may not be his abrogation of a halakha but his support for an institutional framework for teaching women Torah.
While it is difficult to identify examples of the principle of “et la’asot” in practice, this much is clear: it does not constitute an assertion that the halakha has changed. Rather, the claim is that extreme circumstances (often a product of social change) demand the temporary or, more rarely, even permanent abrogation of a halakha. There are, however, two crucial limitations that emerge from and are reflected in discussions or practical examples of this approach:
First, it has been employed sparingly and only by the greatest Torah authorities whose leadership was broadly accepted within the community.9 Speaking colloquially, we might consider this method of changing halakha as akin to dynamite; like dynamite, this method is carefully secured in a “shack” with very few granted access to the keys. Second, it is employed only in extreme circumstances, where the danger of not adopting an alternate approach represents a significant threat to Torah or the Jewish people.
Rationale-Based Arguments for Halakhic Change
There are numerous examples of practices enjoined by rabbinic law that are still observed by Orthodox Jews despite the fact that one could reasonably argue that the reasons for the halakhic enactment are no longer applicable due to societal change. For example, the Sages prohibited the consumption of wine that might have been touched by a non-Jew because of concerns of idolatry (idolatrous libation) and of intermarriage. Arguably, in considering commercially produced wine in the Unites States, neither of those concerns is salient. Even assuming that Christianity technically constitutes avodah zarah, Christians in contemporary America do not libate their table wine. Nor, considering the concern of intermarriage, is it at all likely that consumption of commercially produced wine (whose producer’s identity is unknown to the purchaser) will lead to intermarriage. Nonetheless, we continue to observe this prohibition. One may wish that it could be different, but observant Jews do not drink wine without kosher supervision.10
There are, to be sure, a few cases where Talmudic prohibitions are no longer observed, seemingly because their rationale no longer exists. Dancing and clapping on Shabbat and Yom Tov and the consumption of uncovered liquids were banned by mishnaic edict (Beitzah 5:2, Terumot 8:4), and yet are no longer observed. Their non-observance has been accepted by the Rema (Orah Hayyim 339:3) and Shulhan Arukh (Yoreh De‘ah 116:1), respectively. On the whole, however, Talmudic injunctions whose reasons no longer apply remain in force.
Here I explore the issue of halakhic change in the context of one specific issue – the question of the permissibility of calling a woman to the Torah to receive an aliyyah. Some have argued that the role of women has changed such that the rationale for it no longer exists, and hence this halakha no longer needs to be observed. This assertion has been accompanied by the claim that such change follows the traditional methods of halakhic decision-making.11 What follows is an analysis of the traditional sources regarding the prohibition of calling a woman to the Torah, and a discussion of the relevance of societal change to this prohibition.
Partnership Minyanim in Halakhic Sources
The Shulhan Arukh (Orah Hayyim 282:3) states:
הכל עולים למנין שבעה, אפילו אשה וקטן שיודע למי מברכין, אבל אמרו חכמים: אשה לא תקרא בצבור מפני כבוד הצבור.
All count towards the [requisite] number of seven [readers], including a woman and a minor who understands whom we bless, but the Sages said that a woman should not read in public because of the honor of the congregation.
This ruling, virtually a verbatim citation of a baraita found in the Bavli (Megillah 23a), has been, as far as can be traced, the accepted practice of all observant Jewish communities throughout the ages.
In his book Darkah shel Halakha, Rabbi Daniel Sperber argues that it is halakhically permissible for women to receive aliyyot today.12 His work has been used as the primary halakhic justification by the partnership minyanim that exist in pockets of the American and Israeli communities of Jews who would classify themselves as Modern Orthodox or dati leumi.13 Supporters of these minyanim assert that their practice of calling women to the Torah is halakhically permissible and desirable according to a legitimate minority opinion within Orthodox halakha as articulated by Rabbi Sperber.
This phenomenon requires discussion on two levels. First, do Rabbi Sperber’s arguments hold up to scrutiny? That is to say, are his arguments correct from a technical halakhic perspective? The second question relates to the nature of pesak halakha. That is to say, when there is a dispute regarding a long established minhag Yisrael with a clear foundation in halakha, what kind of authority is necessary in order to overturn such a practice? It is important to emphasize here that Rabbi Sperber’s halakhic argumentation does not function to offer post–facto explanation, rationalization or ratification for a pre-existing practice, but is used to assert the ab initio halakhic permissibility, even desirability, of women’s aliyyot.
Rabbi Sperber’s conclusion that calling women to the Torah for an aliyyah is both halakhically permissible and advisable is rooted in three basic arguments. The first of these speaks not to the technical aspects of halakha, but rather to what we might describe as the spirit of the law. The latter two address the nature of the prohibition itself and its intersection with other halakhic principles and their application in contemporary context.
Rabbi Sperber first argues that the halakha with respect to women receiving aliyyot was not always monolithic. He analyzes the two halves of the baraita that serves as the source for the above ruling and concludes that they are in tension with one another. He reads this tension as reflecting two conflicting positions within the halakhic tradition. For Rabbi Sperber, the implication of this tension inherent in the baraita is that if the halakhic obstacles to giving a woman an aliyyah can be overcome, then doing so is consonant with one of the positions reflected in the baraita.14
Rabbi Sperber next considers the baraita’s stated rationale, that women should not receive aliyyot on account of kevod hatzibbur. After discussing the nature of this concern for kevod hatzibbur and considering its applicability today, Rabbi Sperber concludes that there is at least a safek, a doubt, as to whether this concern remains relevant in many contemporary communities.15
Finally, Rabbi Sperber argues that excluding women from the opportunity to receive an aliyyah constitutes an affront to the dignity of women and thus conflicts with the halakhic principle of kevod haberiyot. Even if kevod hatzibbur were still relevant, he argues, prohibiting women from receiving an aliyyah would in and of itself conflict with kevod haberiyot. This conflict becomes more acute in our situation, where the applicability of kevod hatzibbur is called into question. Hence, we should set aside any doubtful (safek) concerns about kevod hatzibbur because of the very definite (vaday) consideration of kevod haberiyot.16
The Rabbinic Injunction
To assess Rabbi Sperber’s argument let us begin with the Talmudic source itself.
The baraita in Megillah (23a) states:
תנו רבנן הכל עולין למנין שבעה ואפילו קטן ואפילו אשה
אבל אמרו חכמים אשה לא תקרא בתורה מפני כבוד צבור
All count towards the [requisite] number of seven [readers], even a minor and even a woman, but the Sages said that a woman should not read from the Torah because of the dignity of the congregation.
Rabbi Sperber offers a novel analysis of this source:
מקריאת הברייתא ניכר כי יש שתי שכבות נפרדות המנוגדות זו לזו ממידת מה. מבחינה עקרונית יכול כל אחד לעלות לתורה (ועלייה היתה כרוכה בקריאה באותם ימים), כולל אשה. נראה שזה היה המצב ההלכתי בזמן כלשהו, לפני ש‘אמרו חכמים‘ במאה השלישית לספירה, לכל המאוחר – מה שאמרו. (עמ‘ יט)
From reading the baraita it is apparent that there are two separate layers which are to some degree in conflict with one another. From a fundamental perspective, everyone can ascend to the Torah (in those days, ascending was bound together with reading), including a woman. It appears that this was the halakhic situation at some time17 before the “Sages said” what they said by the third century, at the latest. (p. 19) [translation mine]
Implicit in Rabbi Sperber’s analysis is the assumption that use of the participial expression “ha-kol `olin” implies the unreserved permissibility of calling anyone up to the Torah.
This assumption conforms to the generally accepted principle of the Bavli in interpreting Tannaitic literature that use of the past tense implies that the action is sanctioned only post facto, whereas use of the participle connotes unreserved permissibility. The opening sugya of tractate Hulin provides a classic example. The mishnah there (2a) states:
הכל שוחטין ושחיטתן כשירה.
All may ritually slaughter and their slaughter is valid.
The Talmud (ibid. 2a) intuits that this short phrase contains a contradiction within itself. It asks:
“הכל שוחטין” – לכתחלה; “ושחיטתן כשרה” – דיעבד.
“All may ritually slaughter” [this implies] without reservations; “And their slaughter is valid” [this implies only] post facto.
Rabbi Sperber goes one step further and argues that the two layers of this baraita reflect two different historical stages. The first half of the statement sees no objection to women receiving aliyyot and reflects an earlier period during which women were, in fact, called to the Torah. The second half of the statement reflects a later ban on the practice. A corollary of this reading, then, is that women receiving aliyyot is not fundamentally at odds with core halakhic values, as evidenced by the fact that women at first did receive aliyyot, a practice that came to an end only in the wake of a later ban. According to this reading, giving women aliyyot today may constitute revival of an original practice.18
Rabbi Sperber’s innovative reading that there was an original practice permitting women to read from the Torah hinges on the interpretation of one key word in the text, “‘olin.” In his reading, the term “‘olin” means “to go up to the Torah to read,” in his words, “yakhol kol ‘ehad la‘alot la-torah.” Careful analysis of the term, however, reveals this interpretation to be an error. A survey of the Hebrew root ayyin-lamed-yud in the Talmudic context of Torah reading reveals that the word is never used as it used today (and in medieval sources) to mean ‘an aliyyah’.19 Rather the term is used in conjunction with the term minyan, to denote ‘counting’ towards a requisite number. A proper translation would be “all [who have already read] count toward the [requisite] number of seven [readers].” In other words, “ha-kol ‘olin” is not at all like “ha-kol shohatin” of the mishnah in Hulin. This phrase implies nothing about the unreserved permissibility of calling up ‘anyone’ to read from the Torah; rather it states that once seven people have read a portion from the Torah [even if one of those people happened to be a woman or a minor], there is no need to call an additional person to read. It addresses the situation only post facto.20
Rabbi Sperber posits a strain of Talmudic thought that calling a woman to read from the Torah is fundamentally an ideal. He also suggests that there was a historical period before the ban during which women were actually called to read from the Torah.21 Analysis of the sources at hand, however, supports neither of these interpretations.
The second element of the baraita addressed by Rabbi Sperber is its assertion that women should not be called to the Torah on the grounds of kevod hatzibbur. There has been much discussion of the nature of kevod hatzibbur and its applicability with regard to women in contemporary Western society, at least in parts of that society.22 There is no reason at this juncture to recapitulate the entire discussion. Let us grant for the sake of argument Rabbi Sperber’s contention that it is uncertain whether or not the concern of kevod hatzibbur remains applicable in contemporary context. The underlying assumption of his thesis is that if the concern of kevod hatzibbur is irrelevant, then, as a matter of course, the rabbinic prohibition against calling women to the Torah can be disregarded. This assumption, however, is deeply problematic.
To students of halakha, one of the most basic and fundamental principles of halakha that governs rabbinic enactments is rooted in the mishnah in Eduyot (1,5):
[ש]אין בית דין יכול לבטל דברי בית דין חברו עד שיהיה גדול ממנו בחכמה ובמנין היה גדול ממנו בחכמה אבל לא במנין במנין אבל לא בחכמה אינו יכול לבטל דבריו עד שיהיה גדול ממנו בחכמה ובמנין:
[For] a court may not overturn the ruling of another court unless it is greater in knowledge and number: If it was greater than it in knowledge but not number, or in number but not in knowledge, it may not overturn its ruling unless it is greater in knowledge and number.
According to the mishnah, no court may overturn the ruling of another court unless it surpasses it in stature, however that might be measured. At the core of this mishnah lies an even more basic principle of rabbinic law (Beitzah 5a):
[כ]ל דבר שבמנין צריך מנין אחר להתירו.
Any matter concluded by a minyan requires another minyan to permit it.
The process of “minyan” here refers to the literal counting of heads in a Sanhedrin to determine how the majority has voted.23 In conceptual terms this means that any interpretation or decree of a Sanhedrin is not subject to abrogation except by the decision of another Sanhedrin; this holds true whether or not the concerns that motivated the decree are still present. In pragmatic terms, the regnant assumption of all rabbinic authorities writing after the completion of the Talmud is that with respect to matters of halakha the Talmud Bavli is treated as having the status of a decree of the Sanhedrin.24 Even novice students of halakha quickly become aware that as a matter of general principle, rabbinic enactments found in the Talmud are binding irrespective of whether or not the reason applies in a specific personal situation and even if the reason is no longer relevant on a broader societal level.25
At first glance, then, the entire line of argument that if kevod hatzibbur is deemed irrelevant the baraita’s stricture against calling women to read from the Torah may be disregarded rests upon an erroneous premise. As students of the halakha are equally well aware, however, there are multiple rabbinic decrees mentioned in the Talmud whose application in practice has been limited to situations in which the reason for the decree applies. The widespread practice of dancing and clapping on Yom Tov (particularly on Simchat Torah) is but one well-known example. The mishnah in Beitzah (36b) states:
ולא מספקין ולא מטפחין ולא מרקדין ביום טוב.
One may not clap, bang or dance on a festival day.
The Bavli explains the reason for the prohibition:
ולא מספקין ולא מטפחין ולא מרקדין – שמא יתקן כלי שיר.
One may not clap, bang or dance – lest one come to fix a musical instrument.
Commenting ad loc. in light of the common practice to dance on Yom Tov, the Ba’alei HaTosafot opine:
תנן אין מטפחין ואין מרקדין – פרש“י שמא יתקן כלי שיר ומיהו לדידן שרי דדוקא בימיהן שהיו בקיאין לעשות כלי שיר שייך למגזר אבל לדידן אין אנו בקיאין לעשות כלי שיר ולא שייך למגזר.26
Rashi explained that [this is because] “he may come to fix a musical instrument.” For us, however, it is permitted because only in their days when they were expert in making musical instruments was it relevant to prohibit it, but for us who are not expert in making musical instruments, it is not relevant to prohibit it.
The essential question becomes in what instances is the principle, to borrow the common contemporary expression, “’af ‘al pi she-batelah ha-ta‘am lo batelah ha-gezeirah” (“even though the reason is no longer relevant, the prohibition is operative”) and in what instances is that of “batelah ta‘am batelah ha-gezeirah” (“since the reason is irrelevant, the prohibition is void”) applied?
It is important to note at the outset that the default assumption in classic halakhic decision-making is that a rabbinic enactment applies in all circumstances irrespective of whether or not the enactment’s stated rationale applies in a given instance or context. In other words, rabbinic enactments are assumed to be absolute until proven otherwise. In the absence of communal practice or other evidence of limited applicability, providing this proof rests on the poseik arguing for permitting what the rabbis have prohibited on the grounds that the rationale is inapplicable in specific or even general circumstances.
Two factors inform any determination that a Talmudic ruling does not apply in a situation where the reason is not relevant. The first is organic development of an established communal practice on the part of fundamentally observant Jews to permit a behavior interdicted by the Talmud. That is, there is a strong tendency on the part of rabbinic decisors to offer post facto justification for established communal practice.27 The second is when there is some indication from the Talmud itself, either in the formulation of the decree itself or in the associated case law that suggests that the decree was not all encompassing. Typically speaking, this latter factor is invoked in the wake of the first; the classical response of Rishonim and Aharonim to realization that an established communal norm seems to fly in the face of Talmudic dictates has been to try to explain and justify the accepted communal behavior by re-examining the relevant Talmudic passages and interpreting them in light of communal practice.28
The case of doing business with Christians on holidays illustrates the confluence of these two issues. The first mishnah in Avodah Zarah prohibits involvement in any kind of economic commerce with idolatrous non-Jews in the three days leading up to their festivals. The common practice in Ashkenaz and in Christian Spain was to disregard this prohibition, prompting many Rishonim, beginning with the Ba‘alei HaTosafot, to posit a variety of reasons why the prohibition did not apply in their circumstances.
Ritva (Avodah Zarah 6b, s.v. ha-hu mina’ah) articulates and grapples with the conundrum confronting halakhic decisors in light of the general principle that rabbinic decrees were assumed to remain even in circumstances in which the stated reason did not apply. In explaining the Talmud’s own implication that the strictures of the mishnah may be disregarded in situations where refraining from economic interactions with idolaters would create animosity he writes:
וכל היכא דאיכא איבה לא אסרו במשנתינו כלל ואפי‘ ביום אידם, שאיסור זה אינו אלא מדרבנן ומשום חששא ולפיכך לא החליטו בו איסורן ולא השוו מדותיהם, ואינה כשאר איסורין שלהם שהשוו בו מדותיהם והחליטו איסורן, אבל הכא לא החליטו איסורן אלא לפי המקום ולפי הזמן … ומכאן סמכו רבותינו ז“ל דבזמן הזה מותר לשאת ולתת עם הגוים אפי‘ ביום אידם … ולא שרינן ליה משום איבה … אפי‘ איסורא דרבנן שהחליטו בו איסור, כגון גבינה וחמאה וחלב של גוים, וכמו יין נסך, והא לא איצטרכה למימר דמילתא דפשיטא היא. מפי רבינו נ“ר.
Wherever there is a concern for engendering animosity, the Mishnah did not prohibit anything, even on the day of the festival [itself], because the prohibition is merely rabbinic and because of ‘concern’ and thus they did not prohibit it absolutely and in all situations, and this is unlike their other prohibitions which they banned in all situations and absolutely. Here, however, they did not prohibit it absolutely, but rather according to the place and the time … Our Rabbis relied on this to permit transacting business with Gentiles even on their festival days … but we do not permit because of a concern of animosity … any absolute rabbinic prohibition such as the cheese, butter and milk of Gentiles, and libated wine, and this need not be said because it is so obvious.”
Ritva here posits two categories of rabbinic decrees – limited and absolute. Examining the body of Talmudic case law illustrating the prohibition’s application, he infers that the decree against doing business with idolaters in proximity to their holidays was not intended broadly. Rather, he contends, this prohibition was from the outset intended to apply solely in contexts in which the stated concerns were manifest.29 This, he explains, is the basis on which the medieval sages permitted engaging in commerce with idolaters even on actual holidays. He concludes by emphasizing that this leniency in no way applies to situations where the rabbinic decree was enacted “la-halutin”, absolutely or expansively, examples of which include the prohibitions against consuming the cheese, milk30 and wine of non-Jews. For Ritva, absent case law to the contrary, rabbinic enactments are absolute.
Returning to our issue, let us consider the rabbinic enactment against calling women to read from the Torah in light of the foregoing. There is no evidence whatsoever that there has been any communal practice to disregard the stricture of the baraita from the time that the ban was first recorded, nor is there any evidence that women read from the Torah in public even before the promulgation of this ban. Furthermore, there is no case law in the Talmud relating to women’s aliyyot that might provide evidence that this is a limited enactment. From the perspective of classical halakhic decision-making, then, none of the factors that typically engender understanding a rabbinic enactment as limited in nature are present in the case of women’s aliyyot. The sole possible basis for understanding the rabbinic stricture against women’s aliyyot as limited to circumstances in which the stated rationale is manifest is whether or not the baraita’s formulation itself suggests a ban which was not expansive. It is on this basis alone that Rabbi Sperber argues that the prohibition is conditional, or “mutneit”, that is, limited to contexts in which the concerns that motivated the ban are present.
As noted above, the historical norm of pesak is that the burden of proof rests upon the poseik to demonstrate that the Talmud conditioned its decree upon a specific set of circumstances and that the prohibition may consequently be disregarded absent those circumstances. Rabbi Sperber seeks this evidence in the formulation of the baraita prohibiting women’s aliyyot. He argues that a survey of the Talmudic occurrences of “’aval ’ameru hakhamim” creates a definite impression that the “’amirah” of the Sages was not an expansive rabbinic decree but rather a limited one. In Rabbi Sperber’s reading, the Sages’ “’amirah” represents a rabbinic enactment that must be heeded, to be sure, but only when relevant (p. 23).
This contention is not borne out by an examination of the sources. A survey of the Bavli indicates that there are eleven cases in which the expression “’aval ’ameru hakhamim” is used to modify or qualify a preceding statement. Only three of them, including our statement in Megillah, are actually prohibitions that restrict the permissibility advanced in the preceding sentence. A brief analysis of the other two should shed light on whether or not pesak recognizes the “impression” that Rabbi Sperber suggests. If either of those gezeirot were deemed absolute, then one can no longer argue that the formulation itself implies that a gezeira is contingent. However, if both are contingent, then a reasonable case (even if not absolutely compelling one) can be made that the gezeira of calling women to the Torah is, as Rabbi Sperber posits, contingent.
The first case speaks about the nature of the prohibition of sha‘atnez:
והתניא (ויקרא יט) “לא יעלה עליך” אבל אתה מותר להציעו תחתיך – אבל אמרו חכמים אסור לעשות כן שמא תיכרך נימא אחת על בשרו.
And it was taught, (Lev. 19) “Shall not go up on you,” but you may lay it underneath yourself – but the Sages said that it is prohibited to do so lest one thread become wrapped around his flesh.
The scriptural prohibition against wearing sha‘atnez is limited to a situation in which the clothing envelops its wearer to some degree. Thus, lying on top of sha‘atnez is fundamentally permissible. However, the sages prohibited doing so lest the material, should it be soft, partially envelop the one lying on it. The Talmud’s continuation of the discussion clarifies that this decree is not limited to circumstances where this occurrence is likely, but is a standard rabbinic prohibition:
והאמר רבי שמעון בן פזי אמר רבי יהושע בן לוי אמר רבי משום קהלא קדישא שבירושלים: אפילו עשר מצעות זו על גב זו וכלאים תחתיהן אסור לישון עליהן.
Did not R. Shimon b. Pazi state in the name of R. Yehoshua b. Levi in the name of the Holy Community of Jerusalem: Even if there are ten mattresses one on top of the other and a forbidden mixture (i.e. sha‘atnez) underneath them, it is prohibited to sleep upon them.
Even in a case where ten layers intervene between a person and the sha‘atnez rendering it impossible for the sha‘atnez to become wrapped around any part of his body, the Rabbis prohibited lying upon the top layer. This is the classic principle referred to as lo pelug, a broad unconditional rule – a common feature of rabbinic decrees. The law as presented here is cited by Maimonides and the Shulhan Arukh without qualification.31 In this case, the use of the expression “’aval ’ameru hakhamim” in no way implies that this prohibition is limited. The Talmud uses the expression “’aval ’ameru hakhamim” for a rabbinic enactment that it expressly identifies as an absolute prohibition.
The second instance in which the expression “’aval ’ameru hakhamim” is used to proscribe a given act involves the case of a zavah gedolah, a woman who has bled beyond her normal menstrual period. According to Torah law, a zavah gedolah must experience seven days without bleeding before she can immerse in a mikveh for purification. The baraita states:
דתניא (ויקרא ט“ו) אחר תטהר … ר‘ שמעון אומר: אחר תטהר – אחר מעשה תטהר, אבל אמרו חכמים אסור לעשות כן שמא תבא לידי ספק.
It was taught, (Lev. 15) “After she shall become pure” … R. Shimon says [this means] that after the act [of immersion during the day of the seventh] she shall become pure, but the Sages prohibited doing so lest she come to a situation of doubt.32
R. Shimon claims that according to Torah law, a zavah may immerse during the course of the seventh day rather than waiting for its completion at nightfall because of the principle that “miqtzat hayom ke-kullo”, part of day in a period of counting suffices for the final day. All concur, however, that should a woman bleed on the seventh day subsequent to her immersion, the requirement for seven clean days would no longer have been met and the immersion would be retroactively invalidated. The sages prohibited a zavah’s immersion before the beginning of the eighth day out of concern that post-immersion cohabitation with her husband on the seventh day could turn out to have been prohibited should this woman experience any bleeding after her immersion.
Here too, there is nothing to indicate that this prohibition is contingent. The Talmud uses this principle to explain why even today, when the requirement of seven clean days for all women is observed out of stringency, women do not immerse on the seventh day. In situations where immersion at night is dangerous women may immerse during the day on the eighth day, but not before.33 Here again a stricture couched in the language of rabbinic “statement” (’aval ’ameru hakhamim) has been understood as carrying the weight of an absolute prohibition. Surveying the admittedly limited analogous use of the expression, then, yields an opposite conclusion: the formulation “’aval ’ameru hakhamim” in no way signals that a rabbinic prohibition is contingent rather than absolute.
In summary, traditional approaches to pesikat ha-halakha have adopted the position that even though rabbinic enactments may reflect or have been impelled by concerns no longer in evidence, those enactments remain halakhically binding absent compelling reason to the contrary. Those reasons have consisted of established communal custom to the contrary, evidence of Talmudic case law that the prohibition applied only when the animating concerns of the enactment were present or if the formulation of the prohibition itself implies limitation. None of those conditions is present in the case of the enactment against aliyyot for women. Irrespective of how we might interpret the concern of kevod hatzibbur or how we might assess its contemporary relevance, according to traditional principles of halakhic decision-making the rabbinic prohibition against calling women to the Torah remains in force.34
Rabbi Sperber’s culminating argument is that the value of kevod haberiyot competes with and should override the concern of kevod hatzibbur, even if one were to consider the latter still relevant. To buttress this argument he adduces numerous examples of kevod haberiyot overriding other principles in halakha, including the Talmud’s permission for women to perform semikhah on a sacrifice even though it is “she-lo ke-din”, fundamentally improper, and allowing women to attend synagogue on Yom Kippur even when niddot.35 In our situation, he contends, not allowing women to participate in kri’at hatorah constitutes an offense to their dignity, in which instance the concern of kevod haberiyot should take precedence over that of kevod hatzibbur.
This conclusion, Rabbi Sperber seems to acknowledge, follows from and depends on an assumption that the stricture against calling women to the Torah is contingent rather than absolute. He writes:
אולי באמת, אם כן, מושג זה אינו תקף בציבור של ימינו, אלא אם כן נראה אותו כאיסור מוחלט – מה שלא נמצא אצל אף אחד מהראשונים. אילו היה הדבר כן, לא יתכן היה למצוא פסיקות כגון אלה של המהר“ם מרוטנבורג והר“ן, או כמו דבריו של ר‘ דוד פרדו. על כן נראה ברור שכבוד הבריות – כבודו של היחיד, עליו לגבור על כבוד הציבור (עמ‘ לט)
Thus perhaps in truth this concept isn’t binding in our contemporary community unless we view it as an absolute prohibition – something which is not found in any of the rishonim, If that were the case, it would not be possible to find rulings such as those found in the Maharam of Rothenburg and the Ran, or such as the comments of R. David Pardo. Thus, it would seem clear that kevod haberiyot – the diginity of an individual, should override kevod hatzibbur. (p. 39) [translation mine]
As noted previously, there is no basis in the terminology of the decree itself (“’aval ’ameru hakhamim”) for assuming that the prohibition was not absolute. Likewise, the silence of most Rishonim on this issue cannot be taken to mean that they did not view it as an absolute prohibition. On the contrary, given the default assumption in the absence of evidence otherwise that rabbinic decrees are absolute, silence of a Rishon should be taken to mean that the default position is operative. Finally, the fact that some rabbinic decisors have advocated relying in exigent circumstances (“she‘at hadehak ke-di‘avad dami”) on the post facto validity of a woman’s reading from the Torah does not imply that a decree against calling women to the Torah is contingent. In these cases the decisors were forced to choose between two halakhically less-than-ideal options.36
Let us turn aside, for the moment, from the question of the contingent or absolute nature of the prohibition and consider Rabbi Sperber’s application of the halakhic principle of kevod haberiyot. The Talmud presents a small number of examples in which rabbinic prohibitions are set aside in favor of considerations of human dignity. For example, a person who finds himself without the pre-modern equivalent of “Shabbat toilet paper” is permitted on the grounds of kevod haberiyot to use small stones for this purpose even though they are otherwise muqtzeh.37
In this instance we are faced with a situational conflict between the maintenance of an individual’s dignity in attending to matters of personal hygiene and the prohibition of moving certain kinds of objects on Shabbat. Each of these is a principle, which, considered independently, is inherently unobjectionable. That a person should cleanse himself (even on Shabbat) is a value, as is the prohibition of moving certain objects on Shabbat. These are brought into conflict only because of an accidental confluence of circumstance. In this case, the Talmud rules that the principle of kevod haberiyot overrides the principle of muqtzeh. This conflict and its resolution embody the way that the principle of dehiyyah works.
This is similarly exemplified in the parallel concept that ‘aseh doheh lo ta‘aseh (a positive commandment sets aside a negative one). Jewish men are obligated to place tzitzit made of one or more strings of tekhelet-dyed wool on a four cornered garment to permit its wearing. A Jew is also prohibited from wearing a garment containing sha‘atnez, an admixture of wool and linen. A four cornered garment of linen presents its wearer with a dilemma. Attaching woolen tzitzit to the corners renders it sha‘atnez. Refraining from attaching tzitzit entails failure to fulfill the positive obligation of tzitzit. Responding to this dilemma, the Talmud (Yevamot 4a) asserts a general rule that the positive commandment is doheh, or overrides, the prohibition. The principle of dehiyyah is employed in a case of incidental conflict between two halakhic principles.38
Our circumstance, however, is not one of incidental conflict. It is not that in certain limited circumstances the prohibition of calling a woman to the Torah offends the human dignity of an individual woman; rather, it is the prohibition itself that is said to engender offense to human dignity. To argue that the principle of kevod haberiyot should dictate that the prohibition of calling a woman to the Torah be set aside is not to resolve an incidental conflict between two values by choosing one. Rather, it is to entirely abrogate a principle because that principle, in its entirety, is perceived to conflict with another. This is far from dehiyyah. There is, to the best of my knowledge, no precedent in halakha for nullifying a halakhic principle on the basis of kevod haberiyot.
Rabbi Sperber cites Rema’s permitting women who were niddot to enter the synagogue on Yom Kippur (communal custom in his time to the contrary notwithstanding) as a paradigm for his approach. This case provides an excellent example of the operation of the principle of kevod haberiyot when halakhic principles are incidentally brought into conflict. According to medieval Ashkenazic custom, women who were niddot did not enter the synagogue. Rema (Orah Hayyim 88:1) ruled that women who are niddot should be permitted to attend services on Yom Kippur because inability to do so on Yom Kippur would cause significant emotional anguish. In this case, we have two principles, each unobjectionable in its independent existence: 1) Women who are niddot do not enter the synagogue.39 2) Entering the synagogue on Yom Kippur is a powerful spiritual experience, exclusion from which would be emotionally difficult for a person. When the two happened to come into conflict, Rema ruled that the latter principle took precedence over the former. He does not suggest that the former should be suspended under all circumstances because of the latter. 40 This case is representative of how the principle of kevod haberiyot has been used in halakhic decision-making but does not provide evidence of its use to abrogate rabbinic law.
More broadly speaking, invoking kevod haberiyot in this context raises inter-related questions with far-reaching implications about how kevod haberiyot is defined and how we determine halakhic values. Starkly put: If a given halakhic mandate or prohibition conflicts with modern sensibilities (even those which might have some antecedent in traditional sources), should that mean that modern sensibilities override halakha? For example, if some or all non-kohanim were to take offense at the decidedly non-egalitarian notion that the first aliyyah is reserved for a kohen, ought we then conclude that the prohibition should be set aside on the grounds of kevod haberiyyot? As a person absolutely committed to halakha, I acknowledge and experience the real tension created when halakha comes into conflict with certain modern sensibilities which hold significant appeal. At the same time, it is inconceivable to me to suggest that our sensibilities can negate, even nullify, halakha in this fashion. Certainly this approach would represent a radical departure from all traditional approaches to pesika.
Finally, there is a systemic error in the argument of kevod haberiyot as advanced here by Rabbi Sperber. Kevod haberiyot is an important value in the corpus of halakha, but its normative treatment is the exception, not the rule. The rhetorical force with which the principle is often presented notwithstanding, kevod haberiyot overrides rabbinic prohibitions only when the Talmud expressly acknowledges that it does. What the principle means in fact is that there were a number of rabbinic prohibitions which the Talmud asserted had been suspended by their creators because of kevod haberiyot. By way of example, the Sages prohibited moving objects that were muqtzeh, but never forbade doing so for a person who needs to attend to personal hygiene. Application of the principle of kevod haberiyot in the responsa literature reflects this understanding of the principle. We find that poskim permit other rabbinic prohibitions on Shabbat for this purpose. We do not, however, find this principle extended to other realms. For example, it is not the case that a person who has invited Shabbat guests only to discover that the food he prepared has been damaged may violate any rabbinic prohibitions to prepare food lest he be embarrassed in front of his guests. Examination of the case law associated with this principle reveals that it is only a limited set of rabbinic prohibitions that are set aside or overridden in the face of kevod haberiyot; these are the exception, not the rule.
One final example adduced by Rabbi Sperber merits brief discussion here. He refers to the Talmud’s report of a dispute amongst the Tannaim whether or not a woman may voluntarily perform the ritual of semikhah on a sacrifice (Hagigah 16b). As a matter of principle, semikhah on a sacrifice, if done by leaning all of one’s weight on the animal, entails violation of the Torah prohibition against “avodah be-qodshim”, doing work with an animal designated for sacrifice (Deut. 15:19). The Talmud concludes the discussion by explaining that the Tannaim who allow women to perform semikhah only did so by allowing women to perform an ‘imitation semikhah,’ putting their hands around the animals head without leaning on it. They permitted this, according to the Talmud, “ke-dei la‘asot nahat ru’ah le-nashim”, “to meet the emotional needs of the women.” This example has little bearing on a general discussion of kevod haberiyot or on our issue. In this case, the Talmud explicitly rules that the consideration of nahat ru’ah does not abrogate a prohibition. Rather, it stimulated the Rabbis to find an alternative practice to involve women in the (festival) sacrifices. This passage merits serious discussion for its implications for other contemporary issues of ritual participation of women – both for those things which are explicitly permitted though not traditionally practiced and possibly for the creation of alternative rituals which do not technically violate halakha. It is has no bearing, however on the question of women participating in the kri’at hatorah of the tzibbur, which was explicitly prohibited.
Thus it seems that all three foundational pillars on which Rabbi Sperber bases his argument are not sustained by his evidence:
1) There is no indication that there was ever an opinion that viewed women reading from the Torah as ideal nor is there any historical evidence that this ever happened.
2) There is no evidence that the rabbinic prohibition against women reading from the Torah on account of kevod hatzibbur was enacted in anything other than the standard, non-contingent model of rabbinic gezeirot.
3) From a technical halakhic perspective, kevod haberiyot as a rationale for overriding another halakhic norm is limited in practical application to the contexts in which the Talmud itself employs the principle. Furthermore, it is never used to abrogate an entire gezeirah, nor is it germane when it is the content of the law that offends people’s sensibilities.
Rabbi Ysoscher Katz’s Thesis
In the spring of 2016, Rabbi Ysoscher Katz published a teshuvah arguing for the halakhic permissibility of aliyyot for women.41 Rabbi Katz asserts that the baraita’s statement that “a woman should not be called to the Torah” is properly read not as a prohibition but rather as mere suggestion or advice.
In Rabbi Katz’s reading, there is no need to explain why the prohibition against calling women for aliyyot no longer applies today because no such prohibition ever existed. (This approach differs substantially from that of Rabbi Sperber who understands the statement of the baraita as a prohibition, and then explains why he thinks the prohibition no longer applies.) Rabbi Katz’s entire assertion of the permissibility of aliyyot for women assumes that there is no interdiction of such aliyyot by the baraita.
Rabbi Katz understands the first part of the baraita as an unequivocal statement that a woman may be called to the Torah and the second part as advice offered by the Sages that women should not be called to the Torah on account of kevod hatzibbur. Rabbi Katz supports his reading of this latter part of the baraita as advice rather than prohibition by noting the absence of the term ’asur in the baraita’s formulation. In Rabbi Katz’s two stage argument (translation mine):
1 תנו רבנן: הכל עולין למנין שבעה, ואפילו קטן ואפילו אשה.
(היינו שמבחינה הלכתית טהורה הגמרא אומרת ברור וחד משמעי: מותר לאשה לעלות לתורה ולקרוא בה.)
2 אבל אמרו חכמים: אשה לא תקרא בתורה, מפני כבוד ציבור.
(היינו יינו, אף על פי שאין בעיה הלכתית בעלייתן וקריאתן, הציעו חכמים שהן לא תעלנה משום שהציבור ייפגע.)
That is, from a purely halakhic perspective, the gemara states clearly and unequivocally: “It is permissible for a women to ascend and read from the Torah.”
The gemara continues:
That is, even though there is no halakhic problem with their ascending and their reading, the Sages have suggested that they should not ascend because the community will be offended.
(In other words, even though there is no halakhic problem with women being called up to the Torah and reading from it, the Sages advised against it to avoid offending the community.)
Rabbi Katz, like Rabbi Sperber, understands the term “‘olin” in the baraita’s initial statement to mean “ascends to the Torah” and assumes that the baraita speaks in a de jure (lekhathilah) voice. As demonstrated above, however, this reading is in error. The expression “‘oleh leminyan” means “to count toward the required number” from a retrospective vantage point but in no way implies approval de jure.
The second element of Rabbi Katz’s argument, that is, his reading of the latter half of the baraita as advice rather than prohibition, is contingent on his reading of the first half of the statement. Had the first half of the baraita expressed approval, in principle, for calling women to the Torah, then its second half might be read as merely offering advice to refrain from this practice. However, once it is apparent that the first half of the baraita does not offer de jure (lekhathilah) approval of the practice of calling women to the Torah, it is also apparent that the second half of the baraita clarifies that the initial statement that “hakol ‘olin” is exclusively post facto but that women ought not be called to the Torah because of the concern of kevod hatzibbur.
Rabbi Katz suggests that the baraita’s language “but the Sages said that a woman should not read from the Torah” implies that this statement is a suggestion but not a prohibition. After all, he writes, “when the Sages wanted to forbid something, they explicitly stated, ‘But the Sages said it is forbidden (asur) to do so’ (see Yoma 69a, Beitzah 14b, Tamid 27b, and Nidah 30a, 67b).”42 Yet the use of the negative “lo’” together with the imperfect form of a verb (e.g., tiqra, as in our baraita) to indicate prohibition is found in Tannaitic literature hundreds of times. Even a brief glance at the Mishnah reveals that the two most common formulations of prohibition are a) “’ein” + participle (e.g. ’ein madlikin… and b) “lo’” + imperfect (e.g. lo’ yikov ’adam shefoferet…). Because use of the term “’asur” is not expected, and it is even relatively uncommon in Tannaitic literature,43 no significance can be attributed to its absence; absence of the term “’asur” in no way suggests absence of prohibition.44
This discussion does not address the hashkafic aspects of partnership minyanim. When dealing with all halakhic issues, but especially those of this nature, the first question that must be addressed is whether it is halakhically permissible on technical grounds. If we conclude that is prohibited, there is little room for further discussion. Were we to conclude that it is permitted, we could then consider whether the practice is a good idea or not and what consequences, intended and unintended, might ensue. In the case of partnership minyanim, this latter stage is never reached. Employing the modes of halakhic analysis used in traditional halakhic discourse, it is inescapable that calling women to the Torah is prohibited by the Talmud, the Shulhan Arukh and traditional communal practice. As such, one can claim to be behaving halakhically (in the traditional sense), or one can choose to participate in partnership minyanim, but one cannot participate/support partnership minyanim and claim to be behaving in a halakhic fashion at the same time.
In this essay, I have explored why ignoring the stricture against women being called to the Torah violates historical norms of halakhic change. Enacting this type of halakhic change could only be accomplished utilizing the principle of “‘eit la‘asot la-shem heifeiru toratekha”. The utilization of this principle is, quite obviously, dangerous precisely because it functions outside of the bounds of the normal rules of halakhic process. As such, it has always been limited to gedolei yisrael who were recognized and respected by broad swaths of the observant community, and even then only in situations of extreme exigency.
As Modern Orthodox Jews, we often have an ambivalent relationship with authority. Rejection of the ideology of da‘at Torah, the charedi ideology that grants rabbinic figures authority even in non-halakhic areas of life, is typical of Modern Orthodox religiosity. But while we are quick to recognize that da‘at Torah represents an innovative response to the condition of modernity, we may be more reluctant to acknowledge that authority in matters of halakha has historically resided with rabbis, and that issues of greater halakhic import have been referred to rabbis of greater recognized stature.45 It is indeed obvious that Torah Judaism does impose upon us that we consult with “authority” on some matters,46 but precisely because we treasure our autonomy, we are reluctant to consult on every question in our lives. This imposes upon us an awesome responsibility. That is, to judge carefully and wisely about which matters require consultation and with whom to consult.
The degree of expertise required to address a halakhic question is proportionate to its severity – either with respect to the gravity of the possible transgression or the potential impact upon the community. Some questions have always been the province of the greatest Torah authorities, both because they were best suited to engage in halakhic analysis and because their approval of a particular pesak halakha would be necessary to receive broad acceptance. This has been true when it has come to resolving very difficult individual cases, and is even truer in relation to changing accepted practice.47
The matter becomes even graver where the issue is schismatic. As the struggle over mechitzah in the mid-twentieth century made clear, synagogue decorum is an issue which draws lines between communities.48 If my decision to pray in a particular synagogue reflects not a matter of preference but a matter of prohibition, we no longer constitute a single religious community. Hence, there are few changes that more require the approval of broadly recognized Torah authorities than permitting women to be called to the Torah, and in this scenario no such approval has been forthcoming. It bears noting that this absence of approval is true even of those rabbinic figures who generally have grappled seriously with the genuine tensions that the shifting status and roles of women in contemporary society have created for many in the halakhically-observant community.49
Rabbinic Will and Halakhic Way
Pointing to rabbinic enactments such as mekhirat hametz, heter ‘isqa and prozbol, proponents of partnership minyanim or other similar contentious changes charge that, “When there is a rabbinic will there is a halakhic way.” The assertion is that if the Rabbis were interested in creating a given halakhic change, they would find justification for it within the vast corpus of Rabbinic literature. The statement itself contains a very small kernel of truth, but its expansive formulation cheapens the entire halakhic enterprise. As Rav Aharon Lichtenstein z”l wrote:
The notion that “where there is a rabbinic will there is a halakhic way” both insults gedolei torah, collectively, and, in its insouciant view of the totality of Halakhah, verges on the blasphemous. What we do expect of a posek is that he walk the extra mile – wherever, for him, it may be – harnessing knowledge and imagination, in an attempt to abide by his responsibility to both the Torah with which he has been entrusted and to his anguished fellow, whose pangs he has internalized. For insensitive pesikah is not only lamentable apathy or poor public policy. It is bad Halakhah.50
Significant rabbinic figures within the Modern Orthodox community who have often been lionized by some for their “progressiveness” have had their views cast aside in the case of partnership minyanim. But the fact that they have opposed the practice on halakhic grounds suggests that what is absent here is not a “rabbinic will”, but rather a legitimate “halakhic way.”
The Challenge of Feminism
The above analysis rejects partnership minyanim as a halakhically legitimate expression of spirituality. What follows does not in any way minimize that conclusion, but does suggest that the broader issue is more complex. Rejection of a specific practice need not imply a categorical rejection of the impetus that might impel that practice. For example, just as a determination that a given method of freeing a woman from the chains of iggun is not halakhically legitimate does not undermine the impulse to free such women; likewise the fact that “feminist” values have informed the push for partnership minyanim does not in itself invalidate those values.
The contemporary Western world presents many challenges to traditional values and practices. Some of these are pragmatic while others are ideological. Pragmatic challenges can be difficult to address, but they do not generally threaten the integrity of the halakhic system. Some of the ideological challenges, however, contain a degree of moral currency which (legitimately) makes them difficult to simply dismiss. Feminism/egalitarianism falls in this category. To dismiss feminism is to ignore the movement’s many accomplishments – prohibiting sexual harassment, advanced education for women, greater recognition of domestic violence (including the criminalization of marital rape), banning discrimination against women in employment and women’s suffrage. Closer to home, the recognition of the modern issue of iggun as a significant communal problem can be attributed in large part to Jewish feminists. While one might assert that some of these (and especially the last) are already existing Torah values, nonetheless, those values were mostly neglected until the advent of feminism. It is easy enough to point to extreme, even absurd, positions adopted by feminism, like any movement, but it is intellectually dishonest to dismiss or ridicule the larger movement based upon those cases. It is hard to dispute the multitude of just causes that have been championed by feminism. And with regards to egalitarianism, while it is theoretically possible to create a community in which there will be differentiated roles with the different members being equal in value, observation of human societies suggests that this is difficult to achieve – separation of roles often leads to fundamental inequality.51 Acknowledging the force of a question does not diminish the authority or centrality of Torah; it merely acknowledges that we don’t have simple answers to all of the questions we face. Fun a kashye shtarbt men nisht.
Undoubtedly, halakha does not embrace nor can it accommodate egalitarianism in its full sense, certainly in the context of public ritual. At the same time, the institution of an alternate form of semikhah on sacrifices ke-dei la‘asot nahat ru’ah le-nashim52 suggests that Chazal were neither indifferent to nor opposed to efforts to ameliorate the emotional distress of exclusion, and were in some cases willing to go to some length to address the need in a halakhically acceptable manner.
The disruption of social change, especially rapid social change and the halakhic challenges that come along with it, are neither simple nor easy problems to confront. In evaluating changes in Jewish ritual practice, it is important to consider whether opposition to that which is new is because it is wrong, because of who is pushing for change, on account of concern about what might come next, or simply because it differs from what has been done heretofore. History has a way of rendering verdicts in unexpected ways. One need only consider the issue of women’s suffrage. Approximately one century ago, when the issue first arose, there was strong opposition in some rabbinic circles to giving women the right to vote (and a fortiori the right to run for office).53 Yet today, women’s suffrage is taken for granted across the entire spectrum of the Orthodox community. I find it difficult to imagine (although perhaps naively so) that anyone today would suggest trying to turn back the clock. Many of the arguments made at that time, including those couched in halakhic terms, are jarring in light of the changed social reality.54 The driving force of much of this change has been economic, but economic change and upheaval also bring changed social realities. Slavishly adopting new norms may mark an abandonment of faithfulness to Torah and tradition – we need to be sensitive to swallowing “ism”s in toto – but failure to adapt may lead to irrelevance. There can be no klal yisrael without Torah, but there also can be no Torah without klal yisrael. Orthodoxy has experienced a renaissance in the last half century that no one would have predicted, but there is nothing that guarantees that it will continue. One should recall that three hundred years ago, there were no other movements – the vast majority of Jews were by and large shomrei mitzvot. By that yardstick, “Orthodox Judaism” as a movement is only a qualified success.
Divrei Chachamim beNachat Nishma‘im – Making Judgments without Judging
Dealing with the issues of the role of women in contemporary Orthodox society, among other questions raised by the context of modernity, requires a great deal of nuance and sensitivity – both to women and to halakha/tradition. Unfortunately, that sensitivity has not always been present. Many have questioned the motivations of those pushing for change. I believe that as a general rule, this is an unhelpful direction. Motivations, reflecting the people who harbor them, are complex. We live in a complex environment, with many competing values and needs – all of which need to be reconciled in some way to allow us to function as a traditional community in a very untraditional world. Judging people’s motivations too often entails misjudging them.
On the other side, there are those who dismiss opponents of change as reactionary or worse. Those who reject, for example, the halakhic legitimacy of innovations like partnership minyanim or challenge the halakhic acceptability of innovative approaches to addressing the question of Agunah are charged with ignorance of, or failure to understand, the far-reaching nature of social changes, as misogynists or as troglodytes. But the concern of holding the community together, keeping it connected with previous generations and traditions, and maintaining its fealty to halakha is very real, and has animated and informed the halakhic decisions of poskim for generations. The wrong kind of change has the potential to tear our community apart and rip it from the traditional moorings that anchor us.
Reasonable people may disagree in some of the details, but as a community we would benefit greatly from learning how to disagree agreeably. The Talmud (Sanhedrin 24a) describes the difference in style between Torah scholars in Babylonia and those in the Land of Israel as follows:
אמר רבי אושעיא מאי דכתיב (זכריה י“א) ואקח לי (את) שני מקלות לאחד קראתי נועם ולאחד קראתי חובלים נועם אלו תלמידי חכמים שבארץ ישראל שמנעימין זה לזה בהלכה חובלים אלו תלמידי חכמים שבבבל שמחבלים זה לזה בהלכה.
R. Oshaya said, what does it mean when it is written, “I took for myself two sticks – one I named No‘am and one I named Hovlim”? Noam – these are the Torah scholars in the Land of Israel who are pleasant (man‘imin) with one another when [discussing] halakha; Hovlim – these are the Torah scholars in Babylonia who wound (mehabbelim) each other when [discussing] halakha.
R. Oshaya’s comments are descriptive, not prescriptive; that we live in the Diaspora does not mean that we need argue in the manner of our ancestors in Babylonia.
We would do well, even as we disagree passionately on one issue of another, to fulfill the words of the wise King Solomon, divrei hakhamim be-nahat nishma‘im, “the words of the wise are spoken with gentleness.”
I gratefully acknowledge the assistance from which I have benefitted here. Rabbi Ari Lamm generously devoted his time, wisdom and insight well beyond what I could reasonably ask of him; his assistance has been instrumental in moving this toward completion. Dr. Moshe Bernstein, Rabbi Ezra Schwartz, Rabbi Shlomo Zuckier, Mr. Joel Rich, Mr. Eric Rosen, Mr. Sam Berkovitz and Rabbi David Roth shared advice and helpful suggestions. Thank you. Needless to say, all errors that remain are my own.
1 We use the term “Orthodox” here to refer to a community committed to the binding authority of the Shulhan Arukh as seen through its commentarial tradition combined with a regard for the sanctity of long-standing communal practice. “Orthodox” and “observant” may be used interchangeably in this essay, but both in the sense of the preceding description. When we use the term halakha throughout this essay, we mean Orthodox halakha.
2 We use the term “partnership minyan” here following the definition found on the JOFA website (underlining mine; https://www.jofa.org/Resources/ritual/synagogue/partnershipm, accessed 9/22/2016):
A partnership minyan is a prayer group that is both committed to maintaining halakhic standards and practices and also committed to including women in ritual leadership roles to the fullest extent possible within the boundaries of Jewish Law. This means that the minyan must include at least 10 men, men and women are separated by a mechitzah, and the traditional liturgy is used. However, women may participate fully in kriyat ha’Torah, including leyning and receiving aliyot, and may lead parts of the prayer service such as psukei d’zimrah and kabbalat Shabbat.
3 By this word we mean Rabbis whose capacity as decisors of Jewish Law is recognized beyond their “local” community and typically receive she’eilot that span the gamut of the entire Shulhan Arukh.
4 Needless to say, this is a taxonomy, not a comprehensive account of all halakhic change.
5 Iggerot Moshe Yoreh De‘ah I:47.
6 The possibility of hukkot ha-goyim, imitation of Gentile ways, is certainly relevant to the discussion, but the mere celebration of a life milestone is not inherently a halakhic issue.
7 Gittin 60b; Temurah 14b; Rambam, Introduction to Mishneh Torah.
8 Sotah 20a, Mishneh Torah Talmud Torah 1:13, Shulhan Arukh Yoreh De‘ah 246:6.
9 The figure that I am describing is both different and, in some respects, greater than the figure defined as a “recognized Orthodox poseik” in footnote 3.
10 The question of what this phenomenon means for the halakhic system, i.e. the absence of the ability to directly change rabbinic enactments (or to create them) in response to societal changes is beyond the scope of this discussion. The question is not of what could or should be, but rather one of what is.
11 The word ‘traditional’ here should be taken to refer to the methods that the poskim of the last several centuries have utilized.
12 For the purposes of this discussion here, we do not distinguish between instances where the person called to the Torah is actually the reader of the aliyyah, as was original practice, and those where the oleh recites the berakhot while a designated ba‘al ha–qri’ah reads the text itself. The Shulhan Arukh, as a general rule, does not make a distinction, and in the case of our issue cites the law from the Talmudic passage in Megillah without qualifying or limiting it to situations in which a woman herself is reading the Torah text.
13 The presentation here is an analysis of Rabbi Sperber’s arguments. The issues raised by Rabbi Mendel Shapiro in his article in the Edah journal, some of which overlap, have been addressed extensively by Rabbis Aryeh and Dov Frimer in their comprehensive article published in Tradition 46:4 (Winter 2013) A Special Supplement. As this article neared completion, Rabbi Ysoscher Katz published a teshuvah arguing for the halakhic permissibility of aliyyot for women – which I address briefly at the end of this section.
14 Darkah shel Halakha pp. 12-14, 18-23.
15 ibid. pp. 24-33.
16 Ibid. pp. 34-43.
17 I.e. that women were called up to the Torah. (This is my understanding of Rabbi Sperber’s intent here.)
18 While not central to the primary halakhic issues under discussion here, it may be valuable to consider the nature of an argument in favor of reviving a once acceptable practice that has been rejected. On the one hand, it is true that if something was once considered acceptable practice, then one can reasonably assert that it should not be viewed as so beyond the pale that it could never be reconsidered. Indeed, the mishnah in Eduyot (1:5) offers this possibility as the rationale for preserving rejected minority opinions. At the same time, traditional halakha is accretive; it is highly atypical for a position long rejected both in theory and in practice to be reinstated.
19 The original term which was used for someone being “‘oleh la-torah” was simply “‘omed”, to read. The following example demonstrates well the shift from the Talmudic to post-Talmudic usage:
בית הכנסת שאין להם מי שיקרא אלא אחד עומד וקורא ויושב ועומד וקורא ויושב עומד וקורא ויושב אפי‘ שבעה פעמים (תוספתא מגלה, פ“ג, הלי“ב)
ציבור שלא היה בהם יודע לקרות אלא אחד עולה וקורא ויורד וחוזר וקורא שנייה ושלישית עד שיגמור מנין הקוראים של אותו היום (רמב“ם פי“ב מהלכות תפלה ונשיאת כפים הלי“ז)
When Maimonides wants to use the Talmudic meaning, he uses the full expression ‘עולה ממנין’. The same holds true in the Shulhan Arukh.
20 While the expression “‘oleh leminyan” does not have to be read as only post facto, its general use seems to be regarded as only post facto. For example, the Bavli’s question (Megillah 23a) of “מפטיר מהו שיעלה למנין שבעה” is regarded as post facto – the accepted minhag (Shulhan Arukh Orah Hayyim 282:4) is to avoid having the maftir count towards the requisite number except when then is no other choice, i.e. the haftarah on fast days where one is forbidden from adding any aliyyot besides the three. For the same usage of the term “‘olin” see Mishnah Kil’ayim 2:10 and Bava Qamma 119b.
21 I note here that the notion that women were actually called to read publicly from the Torah during the classical period seems improbable. It is difficult to envision a society in which women read from the Torah publicly and yet the Tannaim in Mishnah Sotah debate the propriety of teaching one’s daughter Torah. It also seems unlikely that there would have been a critical mass of literate women that one could speak of a practice of calling women to the Torah.
22 For a lengthy treatment of this issue see Gidon Rothstein, “Women’s Aliyyot in Contemporary Synagogues” in Tradition 39:3 (Summer 2005).
23 The common phrase found in Rabbinic literature to refer to this process is, ‘נמנו וגמרו’.
24 See the Rambam’s introduction to the Mishneh Torah, where he comments:
אבל כל הדברים שבגמרא הבבלי חייבין כל ישראל ללכת בהם וכופין כל עיר ועיר וכל מדינה ומדינה לנהוג בכל המנהגות שנהגו חכמי הגמרא ולגזור גזירותם וללכת בתקנותם. הואיל וכל אותם הדברים שבגמרא הסכימו עליהם כל ישראל.
But all of the matters in the Talmud Bavli, all of Israel must follow them and we force every city and country to follow the customs of the Talmudic sages and to enforce their decrees and follow their enactments, since regarding all of those matters in the Talmud, all of Israel agreed.
Rambam does not use the terminology here of “davar she-beminyan”, but his comments are framed by a discussion of which batei din’s gezeirot and taqqanot are binding upon all and which are binding only locally.
25 See Bavli Beitzah 5a-b and Rambam Hilkhot Mamrim 2:2.
26 This example is unusually fascinating in that the Talmud itself acknowledged that people routinely disregarded the decree and explained the lack of rabbinic protest on the grounds that any protest would go unheeded – “מוטב שיהיו שוגגין ולא מזידין”, “better they be unintentional violators and not deliberate ones.” The Ba‘alei haTosafot, however, argued that in their society, not only was it inappropriate to protest against such behavior, but that the behavior was actually permitted.
27 For a possible explanation of the legal mechanism involved, see Iggerot Moshe Orah Hayyim II:100.
28 The passage cited earlier regarding dancing on Yom Tov is exceptional in this regard. The primary motivating factor here is clearly the desire to defend communal practice – there is nothing in the Talmudic text that would suggest that this decree was situation-limited, nor do the Ba‘alei haTosafot even try to invoke such an argument. They merely state that the reason does not apply in their community and thus the decree does not apply. Although the practice is cited by the Rema, there remains significant hesitation regarding the practice amongst subsequent authorities, likely precisely because there is no Talumdic suggestion of limitation in this case. (See Shulhan Arukh Orah Hayyim 339:3.)
29 The actual passages are contained in the ellipses and are omitted here for the sake of brevity.
30 See “Introduction,” above, for discussion of Rav Moshe Feinstein’s position regarding halav yisrael.
31 Note that the Bavli (Yoma 69a) limits the rabbinic decree to soft materials. This in no way implies that the decree was contingent. Rabbinic decrees are by definition, limited; this has no bearing on whether or not they may be contingent. In this case, the Rabbis forbade lying on top of soft materials containing sha‘atnez regardless of whether or not in that particular case it might lead to a violation of Torah law, but never prohibited lying on top of hard materials.
32 The relatively rare usage of the formulation ’asur plus an infinitive to express a prohibition will be discussed briefly in the addendum to this section.
33 Shulhan Arukh Yoreh De‘ah 197:3. There is an extensive literature about going to the miqveh on the seventh day right before nightfall. Rabbeinu Tam (Tosafot, Niddah 67b s.v. mishum) was of the opinion that women were permitted to immerse at the very end of the seventh day when they would not encounter their husbands until after nightfall. A full treatment of this issue is beyond the scope of the current discussion. It should suffice to note that the simplest understanding of Rabbeinu Tam is that the gezeirah was never intended to prohibit immersion during daylight, but rather to prohibit a woman immersing and returning to her husband during the day (see Beit Yosef’s [Yoreh De‘ah 197:3] citation of R. Yeruham). Even if one were to argue that Rabbeinu Tam was interpreting this gezeirah as contingent and not absolute, it would not matter since the first of the two cases, i.e. lying on top of sha’atnez, demonstrates that the phrase “’aval ’ameru hakhamim” cannot automatically be assumed to indicate a decree of contingent nature.
34 It is worth noting here the one oft-cited example of permission granted to call women, slaves or minors to read from the Torah was the responsa of the Maharam of Rothenburg dealing with a city in which every male was a priest. Rabbi Sperber cites this case to demonstrate that the Maharam believed that the prohibition of calling women was not an absolute one (isur muhlat). He buttresses his argument by asserting, without citing any evidence, that clearly calling up only priests could not have been such a serious issue (and this is in fact the position of the Rashba [Teshuvot 1:13], cited by the Shulhan Arukh [Orah Hayyim 135:12] in this very case) and nonetheless the Maharam permitted calling women to read. This argument, however, is difficult on several levels:
1) The Maharam’s position was rejected by the Shulhan Arukh, and instead the Rashba’s position, to call up priests to read, was accepted. Granting, just for the moment, that Rabbi Sperber is correct in his understanding of the Maharam, it is clear that the position was explicitly rejected in normative practice for the last six or seven centuries. Why, therefore, should we assume that anyone accepted the Maharam’s view that the prohibition is not absolute (if in fact that was actually his view)?
2) The Maharam (ed. Prague #108) explicitly limits his permission to situations in which it was impossible otherwise to avoid pegam kehunah (casting doubt on the lineage of a priest). He states:
ונהי דמסיק עלה אבל אמרו חכמי‘ לא תקרא אשה בתורה מפני כבוד הצבור היכא דלא אפשר ידחה כבוד הצבור מפני פגם כהנים הקוראים שלא יאמרו בני גרושות הם.
Granted that it concludes, “But the Sages said that a woman shall not read from the Torah because of the honor of the community,” but when it is impossible otherwise, kevod hatzibbur should be said aside because of pegam kehunah, i.e. they should not think that they are the children of divorcees.
3) Finally, to understand that calling up all priests was in fact such an extremely serious issue one simply needs to read the Maharam’s conclusion to this very responsa. He writes that a city with all priests and no women, slaves or children should not read kri’at ha-torah at all!
Thus it is quite clear that the Maharam considered pegam kehunah to be quite a serious issue. Thus when he permitted violating the baraita’s stricture against women reading, it was instead of having no Torah reading at all.
35 Darkah shel Halakha p. 36.
36 As to the specific sources that Rabbi Sperber cites to prove that the prohibition was not absolute, the Maharam’s view was already addressed in footnote 34. Attribution of such a position to the Ran is based upon an erroneous understanding of Ran. In his commentary on Rif, Megillah 23a, the Ran writes:
הכל עולין למנין שבעה ואפילו אשה ואפי‘ קטן. פי‘ עולין להשלים קאמר ולא שיהו כולם קטנים ולא נשים דכיון דלאו בני חיובא נינהו לא מפקי לגמרי. ולפום עיקר דינא נמי שאינו מברך אלא הפותח והחותם אשה וקטן אין קורין ראשון ולא אחרון משום ברכה לפי שא“א לקורין האחרים שיצאו בברכתם ומיהו השתא דתקון רבנן שיברכו כולם אשה וקטן קורין אפי‘ ראשון ואחרון וכיון דקורין ודאי מברכין מידי דהוה אקטן דמפטיר בנביא ומברך ברכת הפטרה:
All count to the requisite seven [readers] – including a woman or minor. The word “‘olin” means to complete [the number] but not that all be minors or women; since they are not obligated in the reading, they do not fulfill for others [their obligation] completely. And also according to the original law that only the first and last readers make a blessing, a woman and minor may not read first or last because of the blessing, because the other readers cannot fulfill their obligation with their (i.e. the woman or minor’s) blessing. However, once the Rabbis instituted that all readers make the blessing, a woman and minor would be able to read even first or last, and once they are reading they certainly make a blessing in the same way that a minor can read the portion from the Prophets and makes the blessings on the haftarah.
Ran here asserts that the statement of the baraita that the reading of a woman or minor is valid is limited to situations where no one else is dependent upon their blessing – and thus during the period in which only the first and last readers recited blessings, the reading of a woman or minor would have been invalid for those aliyyot even post facto. Today, however, when every reader recites both blessings, this is no longer a concern. Sperber appears to understand that Ran is permitting, in his own time, women to be called to the Torah le-khatehilah. The Ran, however, says no such thing. His comments are on the words of the baraita, “ha-kol ‘olin le-minyan shiv‘ah” – they are only elaborating on what the ruling would be if a woman were to read from the Torah. In no way do his words qualify or limit what is stated in the second half of the baraita – “’isha lo tiqra mi-penei kevod hatzibbur.”
R. David Pardo considers the possibility that if a woman had already been called up to the Torah, we would not insist that she descend without reading. The language R. Pardo uses is “’im ‘aletah lo teireid.” The use of this phrase is modeled upon a well-known discussion in Zevahim (84a) as to which invalid sacrifices may be burned on the altar once they were already carried up to its top. In those cases it is clear that there is a Torah prohibition of bringing the materials up to the top of the altar to burn them. Based upon a scriptural inference, we are told that some of those invalid offerings, once brought up, should be burned on the fire (as opposed to certain others which are to be removed from the altar under all circumstances). Even though those sacrifices may be burned post facto, it is categorically prohibited to bring them up initially. Similarly, the fact that a woman, once called up, is not forced to descend does not suggest that the prohibition of calling her up in the first place is not absolute.
Rabbi Sperber cites earlier in his essay (pp. 20-21) R. Yaakov Emden and R. Ben Tzion Abba Shaul who consider the possibility that at a Torah reading which takes place in a private context it might be permissible to call a woman to the Torah. There are two problems, however, with citing these sources: 1) Although both of these authorities entertain this possibility, neither actually permits it and 2) Both argue that perhaps the original decree was never made in the context of a private reading. They are not suggesting that circumstances have changed and that the decree no longer applies, but rather that the Sages never decreed in this situation in the first place. Neither, however, even considered applying this to a regular public context. One might also question the choice of trying to break new ground on the basis of rather minor voices in the tradition of pesak, but that is for a separate discussion.
37 The other cases in the Talmud deal with moving a corpse into a karmelit out of concern for the dignity of the dead (Shabbat 94b) and the question of a person being forced to strip his clothing and appear naked in public either because he discovers that the garment contains sha‘atnez (Berakhot 19b) or because the tzitzit are torn in a public place on Shabbat (Menahot 37b).
38 The commandment of yibbum, levirate marriage, provides a crucial contrast here. The opening sugya in Yevamot searches in vain for a source for the idea that the principle of a positive commandment overriding a negative one should apply even when the prohibition involves the penalty of kareit. The question one might ask is, why doesn’t the existence of the commandment of yibbum furnish a perfect paradigm for this – after all, yibbum entails a man marrying a brother’s wife, which ordinarily is prohibited and carries the penalty of kareit? The answer is that yibbum setting aside a brother’s wife is not dehiyyah, an incidental conflict; rather, it is a definitional conflict. By commanding a man to perform yibbum, the Torah has overridden the prohibition of marrying a one’s brother’s wife when he has died without children. Hence, this example cannot be generalized to a situation in which there is an incidental conflict between a positive and negative commandment entailing kareit; in such a case, due to the severity of the prohibition, the negative commandment becomes the operative principle and is not overridden by the positive one.
39 One might imagine that this minhag would probably be considered offensive to many contemporary women, and to the best of my knowledge, the minhag has mostly, if not completely disappeared. However, for the purposes of the discussion here, it suffices to note that there is no evidence in halakhic discussions surrounding this practice that women in the Rema’s time were bothered by the minhag per se.
40 Moreover, Rema’s ruling in the case of niddot on Yom Kippur is not analogous to the case of aliyyot for women as he did not view this as a conflict between a rabbinic prohibition and human dignity. Rather, he believed that as a matter of principle there was no prohibition at all of a niddah entering the synagogue or touching a Torah, but he acknowledged that it was the minhag in Poland. Thus, when he ruled permissively in this case, it wasn’t really kevod haberiyot trumping another prohibition, but rather kevod haberiyot dictating that one follow the opinion that was actually correct. In addition, we should note that this is not actually kevod haberiyot in operation, and the Rema never uses the term. Every Talmudic use of kevod haberiyot occurs in a context of potential embarrassment, shame or humiliation. In this case, the Rema appears to be concerned about the emotional impact of exclusion from the synagogue (which ironically may be more pertinent to our discussion), not personal shame.
41 She’eilot u-Teshuvot mi-Beit Midrash shel Chovevei Torah, p.99.
42 ibid., p. 102.
43 The formulation of ’asur followed by an infinitive is found in approximately twenty mishnayot in the entire corpus of the Mishnah.
44 A more fruitful avenue of exploration might be to explain in literary terms why the term ’asur is used in specific cases. For example, in the case of sha‘atnez (Yoma 69a) which we discussed above (and Rabbi Katz alludes to in his citations), the baraita most likely uses the term ’asur (’aval ’ameru hakhamim ’asur la‘asot kein) as a response to the preceding line in which the baraita stated that according to Torah law, the action is muttar (muttar ’attah le-hatzi‘o tahtekha).
45 For a discussion of this issue, see David Berger, “Identity, Ideology and Faith: Some Personal Reflections on the Social, Cultural and Spiritual Value of the Academic Study of Judaism”, in Study and Knowledge in Jewish Thought, ed. Howad Kreisel (Be’er Sheva, 2006, pp. 11-29).
46 Deut. 17:8-13, Rambam Hilkhot Mamrim 1:1-5.
47 With regards to changing accepted practice, it is clear that there is a distinction between a practice which hasn’t been done but has never been addressed in halakhic literature, and a practice which is explicitly prohibited. For a discussion of this issue, see Shulhan Arukh Yoreh De‘ah 1:1 and the accompanying Shakh.
48 It is interesting to note that the sources in halakhic literature which mandate a mechitzah are much weaker than those which prohibit a woman from receiving an aliyyah.
49 In this context it is worth citing the comments of Rav Gedaliah Dov Schwartz, one of the most prominent poskim in America, and certainly for the Modern Orthodox Community:
“As a rav who has extended himself in being sensitive to women’s educational and marital rights, I reject the support of “Partnership Minyanim” halachically and intuitively as going beyond the boundaries of communal Torah observance.”
Accessed at http://www.rcarabbis.org/pdf/Rabbi_Schwartz_letter_Frimer.pdf on 9/20/2016.
50 “The Human and Social Factor in Halakhah” in Leaves of Faith, volume I, pp. 174-175.
51 It is with good reason that the American legal tradition has arrived at the conclusion that “separate but equal” is unequal.
52 Hagigah 16b.
53 See Sridei Eish 3:105, Ma’amarei Re’iya Vol. I, page 189.
54 See for example, Zot Huqqat ha-Torah of R. Yisroel Zev Mintzberg.