Women's Prayer Groups - R. Eliezer Berkovits' Position

In his book, Jewish Women in Time and Torah, R. Eliezer Berkovits discusses many issues regarding contemporary women and has a short section on Women's Prayer Groups (pp. 74-83). R. Eliezer Berkovits studied in the Hildesheimer Institute in Berlin under the great scholar R. Yehiel Ya'akov Weinberg (author of Seridei Eish) and briefly served as a congregational rabbi in Nazi-dominated Berlin. After World War II, R. Berkovits found his way to Chicago where he taught philosophy at Hebrew Theological College. His main foray into halakhah was a thwarted attempt to introduce conditional marriages so as to avoid the problems of an agunah. This proposal was rightly opposed by leading scholars who demonstrated that this plan had been previously suggested (twice) and had been highly criticized by the greatest scholars of two generations (for more on this, see R. Menahem Kasher's article on this subject in the first issue of No'am or, in English, R. Moshe Meiselman's Jewish Woman in Jewish Law). Some of R. Berkovits' other writings have further served to marginalize him in the Orthodox world. One book, on the nature and function of halakhah, was so close to the approach of Conservative scholars that R. Berkovits' students have found it necessary to show exactly how his approach is different. R. Berkovits was certainly a great Jewish philosopher, arguably among the greatest in the twentieth century, but he was not known as a posek and published no responsa.

I. Why Not?

R. Berkovits begins his discussion of Women's Prayer Groups by asking why not (p. 75)? I would think that the more proper question is to ask why? Jewish tradition is to be treasured, not discarded when a prohibition against abandoning it cannot be found. There can certainly be a good discussion over "why" but "why not" should not even be asked.

II. Communal Prayer

R. Berkovits then proceeds to argue that women have no place in the communal prayer in the synagogue.

[W]omen are outside the community, and even in the synagogue their prayer remains tefillat yahid, the private prayer of an individual. There is indeed a great deal of difference between communal and individual prayer, but only for men. Only for them is tefillah be-tzibbur of greater importance than tefillat yahid. For women, however, tefillah be-tzibbur is an impossibility.

Halakhically, this is a very dubious suggestion. Women can never join the tefillah be-tzibbur? This is certainly not a mainstream approach and is one that, if anything, marginalizes women in Judaism just as much if not more than what so-called right wing rabbis have said. Rabbis Aryeh and Dov Frimer, in their extensive article on Women's Prayer Groups, write the following about this contention:

Furthermore, there is even a minority opinion of several leading posekim who maintain that women sitting in the Ezrat Nashim (a separate women’s section or balcony) never fulfill tefilla be-tsibbur.

[Endnote:] ...Most other posekim seem to disagree...

Even this, though, is different from R. Berkovits' suggestion. He claims that women can never be part of tefillah be-tzibbur, regardless of whether the mehitzah separates them into a different room. This, to my knowledge, is undocumented anywhere and R. Berkovits fails to bring a single proof for his surprising contention. Although, he was writing a popular work in English rather than an halakhic article so the lack of detailed proof is somewhat understandable.

III. Negative Custom

R. Berkovits then proceeds to address the contention that since we have never had the custom of Women's Prayer Groups we may not institute such an innovation. To R. Berkovits' credit, he acknowledges (unlike others, as we shall see in a future post) that there is a famous case in which we say lo ra'inu ra'ayah (that we did not see it is a proof) regarding a custom. That is in the very first paragraph in Shulhan Arukh, Yoreh De'ah. There is an early source indicating that women cannot serve as ritual slaughterers (shohetim) and most of the medieval talmudists disputed this ruling. Howeve, the Ashkenazic practice remained that, even though women can technically serve as shohetim, through custom we do not permit such a practice. The sources are fairly clear that since we have not had women shohetim in the past, the custom is that women may not serve as shohetim. R. Moshe Isserles, the famous Rema, codified this in his glosses to Shulhan Arukh, Yoreh De'ah 1:1 and every major Ashkenazic code has included this custom (e.g. Levush, Hokhmas Adam, Simlah Hadashah, Arukh ha-Shulhan, Darkei Teshuvah). If that is the case, perhaps the argument can be made that, since we have not had Women's Prayer Groups in the past, the custom is not to allow them.

R. Berkovits responds to this argument by suggesting that lo ra'inu ra'ayah is a valid claim only when dealing with a matter of dispute. There was disagreement over whether women can serve as shohetim and, while we rule technically like those who permit, the custom has evidently developed to follow those who prohibit. However, in other cases such as Women's Prayer Groups, in which there was not a dispute in the past, we cannot say that the custom followed the strict opinion. At that time, there was no need and no desire for Women's Prayer Groups. That does not imply the following of a strict position.

R. Berkovits' logic is sound and is deserving of contemplation. However, he neglects that the case of shohetim is not the only case in which we say lo ra'inu ra'ayah. As the Shakh on the above Rema points out, the Rema himself explicitly states in Hoshen Mishpat 37:22 that we say lo ra'inu ra'ayah regarding the customary practices involved in accepting testimony. The Shakh on Hoshen Mishpat 37:38 expounds at length on when we say lo ra'inu ra'ayah and when not, and his analysis is different from R. Berkovits'.

IV. Introducing a New Custom

R. Berkovits (pp. 79-81) addresses the permissibility of introducing a new custom by citing two responsa from his mentor, R. Yehiel Ya'akov Weinberg. In one responsum, R. Weinberg prohibits the administration of an anesthetic before circumcision. In another, he permits the institution of a Bas Mitzvah ceremony. R. Weinberg's support for the Bas Mitzvah ceremony is seen by R. Berkovits as precedent for his support for Women's Prayer Groups.

What R. Berkovits leaves out is R. Weinberg's stated reason for permitting the Bas Mitzvah ceremony. From Seridei Eish vol. 3 no. 93:

That it was not done in previous generations is indeed no argument. The generations before us did not have to occupy themselves with the upbringing of daughters as we do today [until here, R. Berkovits quotes - Simcha] because their homes were full of Torah and fear of Heaven, and the air of each Jewish city was full of the spirit of Judaism. Girls who were raised in a Jewish home were saturated with the Jewish spirit without acts [i.e. ceremonies] and practically nursed Judaism from their Mothers' breasts. Now, however, the generations have greatly changed. The influence of the street uproots all attachment to Judaism from the hearts of each youth and girls are educated in Gentile or secular schools that do not try to instill in the hearts of their students a love for Torah or for the holy Jewish customs...

In other words, as an emergency measure to prevent girls from leaving Judaism we must institute the Bas Mitzvah ceremony (with some caveats that we will get too soon). If R. Berkovits is arguing that we must institute Women's Prayer Groups because otherwise women will leave Judaism, he has failed to mention it. Indeed, some would suggest that the institution of Women's Prayer Groups may lead more women to leave traditional Judaism than otherwise. Those who are looking for complete egalitarian participation will never find it in Orthodox Judaism and when the newness and excitement of Women's Prayer Groups wears off they will leave Orthodoxy for places where they can find true equality (and such has, sadly, happened).

V. Confirming the Heterodox

What R. Berkovits entirely omits from his discussion is a concern that his mentor, R. Weinberg, took very seriously. In a celebrated responsum, R. David Tzvi Hoffman analyzed whether an organ may be used in a synagogue during the week when there is no problem of violating Shabbat or the holiday (Melamed Le-Ho’il, vol. 1 no. 16). R. Hoffman neatly summarized the existing literature on the subject and then formulated his own extensive reasoning as to why an organ is prohibited in the synagogue even during the week. In addition to the prohibition against walking in Gentile ways, which he thoroughly analyzed from all positions, R’ Hoffman also cited the prohibition against imitation, and thereby encouragement, of sectarians. Since the Reform movement certainly qualifies as sectarian, we may not adopt any of their practices which might confirm them in their ways. Once we take a small step towards Reform the public might think that, despite our protests to the contrary, this is only the first of many steps.

R. Weinberg (ibid.) cited this responsum of R. Hoffman, his predecessor as rector of Hildesheimer's Institute, and agreed with R. Hoffman's conclusion. Imitating a heterodox practice, even if unintentionally, “has within it the strengthening of the destroyers because they were the first to initiate the new practice of celebrating the Bas Mitzvah.” This, R’ Weinberg rules, is a sufficient reason to prohibit the Bas Mitzvah celebration. The only way for such a practice to be permitted is to sufficiently differentiate it from the heterodox celebration. Therefore, R. Weinberg concluded, a Bas Mitzvah may not take place in a synagogue and must be a celebration of family joy and, more importantly, a time of educational strengthening of the religious development of a budding woman.

I would think that R. Berkovits would have to deal with this issue in the context of increasing female participation in the prayer service. Given the steps that the Conservative movement took in the 70s and 80s towards complete egalitarianism in the synagogue, there might be a real concern that Women's Prayer Groups falls under the prohibition of confirming the Heterodox. Or maybe they are sufficiently different to be permissible. But he entirely omits this issue, even while citing the responsum from his mentor that deals with the matter. From a student of Hildesheimer's Institute, I would have expected more grappling with the views of R. Hoffman and R. Weinberg.