The Status of Women in Jewish Law: a Dialogue with Shmuel Rosner in the LA Jewish Journal Responsa in a Moment: Volume 7, Issue No. 9, July 2013


In late 2012, the Schechter Institute of Jewish Studies published my new book The Status of Women in Jewish Law: Responsa. The following dialogue about that book was published in the LA Jewish Journal in June-July 2013. Headings have been added here at the beginning of each exchange. DG


I) May Women Wear Tefillin?

Dear Rabbi Golinkin,

On Rosh Chodesh Tammuz, I spend several hours at the Kotel watching and talking to the protestors against Women of the Wall, most of them Haredi youngsters. As I reported following this event, it was quite interesting to see these Haredis fiercely debating among themselves the question of women putting on Tefillin. As I’m sure you know, the fact that one of the women of this group is putting on Tefillin was the cause for much protestation and at times ridicule, but the Haredi youngsters did know that the Talmud doesn’t exactly forbid women from putting on Tefillin (those studying the Daf Yomi met this short Talmudic discussion just a couple of days ago).

Your book has a long and detailed discussion of this issue that begins with the Talmud but then moves to present some interesting facts about women wearing Tefillin in later generations. Your conclusion might not surprise our readers — women can put Tefillin. But the way to this conclusion is interesting, and while we can’t repeat all the details here, I’d like you to give us a taste of the core reason leading you to reach such a conclusion (if possible, can you also tell us what you consider as the best argument that leads to the opposite conclusion?).

Thank you,
Shmuel


Dear Shmuel,

As we shall see in a moment, the Babylonian Talmud does not forbid women from wearing Tefillin at all. Indeed, some rabbis of the Mishnah thought that women are obligated to wear tefillin (Eruvin 96b). Most, however, felt that women are exempt from wearing tefillin every day (Mishnah Berakhot 3:3) because it is a positive time-bound commandment (Kiddushin 35a) or for other reasons.

The Babylonian Talmud relates (Eruvin 96a) that Michal the daughter of King Saul used to wear tefillin “and the Sages did not protest”. Rabbi Abahu, however, reported in the Palestinian Talmud (Berakhot, Chapter 2, fol. 4c) that Mikhal wore tefillin and “the Sages did protest”. Thus, on the basis of the Talmudic sources alone, our ruling would be that women are permitted to wear tefillin, since when the two Talmuds contradict each other, we follow the Babylonian Talmud.

The Rishonim, or Medieval authorities, can be divided into two major camps: Rashi, Maimonides and others rule that women may perform positive time-bound commandments such as tefillinwithout a blessing. Rabbeinu Tam, the Rashba and many others rule that women may perform positive time-bound commandments with a blessing. Thus, all of them would allow women to wear tefillin; they would only differ as to whether they may recite the blessings.

Almost all opposition to women wearing tefillin stems from one sentence attributed to Rabbi Meir of Rothenburg (d. 1293), which says that women should not wear tefillin “because they do not know how to keep themselves clean” or, according to another version, because “they do not know how to keep themselves in purity”. This lone opinion was later codified by Rabbi Moshe Isserles in his Ashkenazic glosses to the Shulhan Arukh (Orah Hayyim 38:3), but it contradicts the Babylonian Talmud and almost all Rishonim, as explained above. Furthermore, if Rabbi Meir said “in purity”, this contradicts another Talmudic passage which says that “words of Torah are not susceptible to impurity” (Berakhot 22a); and if he said “clean”, no known halakhic definition would exclude women.

Therefore, according to the Babylonian Talmud and almost all of the Rishonim, it is perfectly permissible for women to wear tefillin if they choose to do so.

Finally, there are actual precedents of women wearing tefillin in 13th-century France, 16th-century Italy, and among Hassidic female Rebbes.

The Haredim at the Kotel are probably familiar with the negative ruling of Rabbi Meir of Rothenburg as quoted by Rabbi Moshe Isserles, but the thorough investigation in Chapter 1 of my book summarized above reveals that this is a minority opinion which is opposed to the Babylonian Talmud and almost all of the Rishonim.

David Golinkin


II) On Picking and Choosing when Deciding Jewish Law

Dear Rabbi Golinkin,

Thank you for your answer on which I’m going to ask my next question. Like the case with Tefillin, we find throughout your book this type of “thorough investigation”, uncovering opinions once held and later abandoned to be replaced by stricter rules. In the chapter about the Mehitzah in the synagogue, you go back to look at evidence that men and women mingled in the Temple in Jerusalem and that “there is no literary source or archaeological proof for the existence of a women’s gallery in the ancient synagogue”. Yet, at some point, a Mehitzah was added to the synagogue — the rules changed. You suggest that changing them back to where they were at previous times is recommended, as “this custom hurts the feelings of many women and keeps them away from the synagogue”.

My question though is this: as you go to search for evidence in the past with which to prescribe a change to custom, are you not engaging in a pick and choose mechanism — namely, are you not only using more ancient sources when they serve a goal of less strictness, yet stick to later rulings on more contentious matters?

A complicated question to answer, I’m sure, and I am eagerly awaiting your response.

Thank you,
Shmuel


Dear Shmuel,

You ask whether I am engaged “in a picking and choosing mechanism, only using more ancient sources when they serve a goal of less strictness”? The answer is: not at all. As I explained in the book we are discussing (The Status of Women in Jewish Law: Responsa, pp. 112-115), my approach follows that of the Geonim (ca. 500-1000 c.e.), Maimonides, the Rosh (1250-1327), Rabbi Shlomo Luria (16th century), the Vilna Gaon (18th century), as well as important halakhic authorities in the 20th century — from very different backgrounds  — such as Rabbis Abraham Isaac Kook, Louis Ginzberg, Moshe Feinstein and Hayyim David Halevi. They established the principle that the Babylonian Talmud is the highest authority in Jewish law.

The Rosh said that “one can contradict the words [of the Geonim], because all of the things that are not explicitly in the Talmud arranged by Rav Ashi and Ravina, a person can contradict or build up, even to contradict the words of the Geonim” (the Rosh to Sanhedrin, Chapter 4, parag. 6).

Rabbi Hayyim David Halevi (1924-1998), longtime Chief Rabbi of Tel Aviv, wrote: “and if your intent is to hint to me that that great rabbi [an oblique reference to Rabbi Ovadiah Yosef] already ruled and [therefore] one cannot change [what he said]… I will reply to you that that is the power of the halakhah. And there was never a ruling of any great rabbi in Israel after the sealing of the Talmud which was binding, and permission is given to any person to disagree with correct and honest proofs, even with his own teachers… and even Maimonides and Maran [Rabbi Yosef Karo] z”l, were disagreed with both by contemporaries and by those who came after them, and in many matters we do not do like them…” (Aseh Lekhah Rav, Vol. 2, pp. 146-147).

This is my approach in the fifteen responsa in this volume, as well as in hundreds of other responsa which I have written. For example, in this volume, I prove that, according to the Talmud and almost all of the Rishonim, it is perfectly permissible for women to wear tefillin; the “prohibition” was invented by Rabbi Meir of Rothenburg in the 13th century (Chapter 1). Similarly, there is no blanket Talmudic prohibition against women singing; that “prohibition” was invented by Rabbi Moshe Sofer in the early 19th century (Chapter 2). Women are required to recite the Amidah three times a day exactly like men and may be counted in a minyan – on the basis of a very careful reading of the Talmud itself (Chapter 3). Women may read the Megillah in public exactly like men because the Talmud clearly states that they have the same obligation as men (Chapter 7). Finally, women may serve as Mohalot based on the Talmud itself (Chapter 9).

Thus, my method is not about picking and choosing; it is about examining all of the major halakhic sources for a law or custom and giving precedence to the Talmud and the Rishonim(early authorities).

David Golinkin


III) How can we make the debate on Jewish law more broad and inclusive?

Dear Rabbi,

Your detailed answer — in addition to your detailed and illuminating book — only makes it more puzzling that so many other rabbis disagree with your analysis and conclusion — and that is the topic of my next question. Surely, there were debates, at times fierce ones, between rabbis who made different rules for different communities. It does seem though — and correct me if you think my impression is wrong — that today the problem isn’t just difference in interpretation but even more so the lack of discussion between different factions/ schools of thought/ streams/ denominations — you name it. In other words, when your responsum is written, it is a debate “within” the faction, but has little chance of convincing the rabbis of other factions.

So my question is really this: should we strive to make the debate on Jewish law more broad and inclusive, and do you have any idea how such a goal of having an all-encompassing Jewish discussion can be achieved?

Thank you,
Shmuel


Dear Shmuel,

At the outset, it should be stressed that “there is nothing new under the sun” (Kohelet 1:9). This is not the first time in Jewish history when there was a lack of discussion between different factions/schools of thought/streams/denominations in Judaism. Some famous examples include the Pharisees-Saducees-Essenes in the late Second Temple period, Bet Hillel and Bet Shammai, Rabbanites and Karaites, the Maimonidean controversies, the pro- and anti-Sabbateans, the Hassidim and Mitnagdim, and the pro- and anti-Zionists. In some cases, these controversies led to a permanent split in the Jewish people; in other cases, such as the Hassidim and Mitnagdim, the storm passed and it is difficult today to tell the difference between these two groups.

Today, as you indicated, Orthodox rabbis tend to ignore halakhic discussions by non-Orthodox rabbis, as I explained in the book under discussion (The Status of Women in Jewish Law: Responsa, pp. 26-27):

Orthodox Rabbis and congregations, as a rule, ignore non-Orthodox rulings on women in Judaism in two ways: They usually do not cite non-Orthodox responsa… More interestingly, Orthodox Rabbis seem to go out of their way to find a different way to allow the same or a similar thing…

In my opinion, this approach is a shame.  Maimonides already stated “accept the truth from he who says it” and this idea was echoed by many famous Rabbis (I cite in a note sources such as:Berakhot 5b, Shabbat 55a, Rav Saadia Gaon, Rabbi Abraham the son of Maimonides, Rabbi Samuel David Luzzato, and Rabbi Kook).  Ignoring non-Orthodox responsa or looking for alternative approaches entails a lot of wasted effort and leads to unnecessary or even mistakenhalakhic results.

You further ask: “should we strive to make the Jewish debate on Jewish law more broad and inclusive?” My answer is an unequivocal “yes”! Indeed, there are Orthodox scholars and rabbis who adhere to the words of Rabbi Judah the Prince: “do not look at the jar but rather at what is inside” (Avot 4:26). Prof. Zvi Zohar, a modern Orthodox scholar who teaches at Bar Ilan University and the Hartman Institute, is one of the world’s leading experts on modern Sefardic responsa. As he stated at a symposium marking the tenth anniversary of the Va’ad Halakhah(Law Committee) of the Rabbinical Assembly of Israel which I chaired for many years (Responsa of the Va’ad Halakhah, Vol. 6, 1998, p. 334, also available at www.responsafortoday.com): “In my opinion, distinctions by stream are not relevant. He who writes halakhah well, let him write halakhah well, without dependence on the question where he or she comes from and what is their ideological affiliation…; and a person who does not know, let him not write.” A similar approach is reflected in his recent review of the book we are discussing (Times of Israel, May 29, 2013).

I myself adhere to this approach. When I write a responsum, I utilize Orthodox, Conservative and Reform responsa on the subject, along with a wide range of sources and interpretations gleaned from the modern academic study of Judaism. Utilizing a Reform or Haredi responsum doesn’t mean that I agree with everything the writer says or believes. It means that I respect all rabbis and hope to arrive at a correct halakhic decision by “accepting the truth from he who said it”. I hope that this approach to halakhah will spread both as a way of improving the responsa we write and as a way of uniting the Jewish people.

Finally, you asked: “do you have any idea how such a goal of having an all-encompassing Jewish discussion can be achieved?” This question leads to the much broader topic: how can we teach and propagate Jewish pluralism? As I have shown elsewhere (Israel as a Pluralist State:Achievements and Goals, The Schechter Institute of Jewish Studies, Jerusalem, 2006, pp. 3-4), our Sages believed that pluralism is good when studying Torah, among people and within Jewish Law.

Pluralism in the Torah – how so? Our Sages said that “There are  seventy faces to the Torah”  (Bemidbar Rabbah 13: 15-16)  and  they  taught  in  the Academy of Rabbi Ishmael: ” ‘And like the hammer that breaks the rock in pieces’ (Jeremiah 23:29) – just as [the rock] is split into many splinters, so also may one Biblical verse convey many teachings” (Sanhedrin 34a). In other words, the same verse is interpreted in different ways and this is perfectly fine.

Pluralism among people – how so? We have learned in the tractate of Berakhot (58a): “Our Rabbis taught: If one sees a multitude of Israelites, he says: Blessed is He who discerns secrets – for the mind of each is different from that of the other, just as the face of each is different from that of the other”. In other words, we bless God for having created millions of people who are different form each other in their ideas and appearance.

Pluralism in Jewish law – how so? The rabbis valued pluralism so much that they even praised halakhic disagreements! We have learned in the Talmud Yerushalmi (Sanhedrin 4:2, 22a): “Rabbi Yannai said: if the Torah were handed down cut and dried, [the world] would not have a leg to stand on… [Moses said to God]: Master of the Universe, teach me what the law is? He said to him: ‘Lean towards the majority’ (Exodus 23:2)…”. In other words, Moses our Teacher, requested a Torah with clear and unequivocal decisions, but God preferred that the Sages argue over every detail and decide according to the majority.

If and when we succeed in teaching Jews that pluralism is an integral part of Judaism, it will be much easier to have a broad and more inclusive discussion on many important halakhic topics.

David Golinkin

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