Thursday, November 05, 2009

Halacha First

Many Orthodox rabbis today are discussing the roles available for women within Orthodox Judaism. Below is a letter sent by R. Michael J. Broyde to a private RCA discussion list with his thoughts on how the discussion should proceed, posted with his permission. The comments reflect his personal views and not those of this blog or any organization with which he is or has been affiliated.

Rabbi Michael J. Broyde is a law professor at Emory University, Chaver of the Beth Din of America and was the Founding Rabbi of the Young Israel in Atlanta.

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There have been many posts over the last few weeks touching on issues related to feminism and halacha, and the more general question of changing traditional Orthodox practices to appear to be more welcoming to some women. It is that issue that I wish to discuss in this post, albeit from a perspective that I think has not been well-fleshed out by other posts, which is from a halachic perspective.

Please excuse the length of this post. As with all of my posts on the RCA listserv, please note that I am speaking for no organization that I am or was involved in, neither Emory that employs me, nor the Young Israel that I was the founding rabbi of, nor the Beth Din of America that entitles me a chaver. Also, I hope you will excuse any typos and the like; as many of you know, my wife is sitting shiva for her mother and thus I have been distracted by many other obligations and responsibilities. Comments and corrections are welcome.

It seems to me that from a halachic perspective there are five distinctly different categories related to women and mitzvot: mitzvot that women are obligated in (but no longer do); mitzvot that women are exempt from; mitzvot “neutral”; mitzvot that women are discouraged from; and mitzvot that women are forbidden from doing. Each of these requires a different response.

The first category is situations where women are seeking to do mitzvot that they are normatively considered obligated in, but which our community has developed a practice that women do not do. Because of the modern developments of feminism, women now seek to do these mitzvot. There are many examples of such, including the near wholesale recent insistence that women daven shacharit every day (a practice more or less unheard of a century ago in Europe, where only righteous elderly women davened shacharit), to women’s zimun, to women fasting, to many other types of mitzvot. There is no doubt that much of what motivates some women in these areas is the sincere strive for equality. It seems to me as a matter of halacha that our job in the rabbinate is to encourage people to do mitzvot and to raise the standard level of observance. Even if people start out lacking sincerity, we have a well recognized rule that mitzvot observance sometimes starts insincere and then becomes sincere. This should be the rule we use when we encounter and encourage people (men or women) who wish to undertake the observance of a mitzvah that is obligatory for them to do (or whose lack of observance can only be explained by a dochak halachic reason).

The second case is a situation where a women wishes to do a mitzvah that she is clearly exempt from, but which, if she does, is a mitzvah for her to do, such as sitting in a sukkah or shaking a lulav. Certainly, according to minhag ashkenaz we view such activity as religiously proper and a maaseh mitzvah and as a general matter ought to be encouraged also, even when the motives of the person seeking to do the mitzvah are insincere. This is even more so true when our custom encouraged women to do these mitzvot, and I think is generally true in the abstract. Except for donning tefillin (where there is a serious halachic case discouraging such a practice), it ought to be the job of the rabbinate not to discourage the performance of mitzvot, even when the motives of the do-er of mitzvot are insincere. It seems to me that the conclusion of this category is similar to that of the first category.

The next case is when the conduct is mitzvah neutral, but yet causes a sense of heightened religious experience (subjectively perceived) by the do-er. An example of this might be dancing with a Torah on Simchat Torah or putting the name of one’s mother on a ketubah. Here, exactly because no mitzvah is being done, it seems to me that there is a greater need for a subjective examination of both the motives of the asker and the context of the community. There is no reason to label this conduct as assur, but there is also no objective halachic reason to encourage this conduct either. Subjective norms of community play a significant role in this activity exactly because halachic values are not at play.

The final two categories are different and I will not address them here in detail: they are cases where women seek to engage in activity that halacha either generally discourages or flatly prohibits. In such cases, certainly motives outside the confines of halacha make such conduct even more discourage-able. Addressing how to respond to sin, whether it is sin with good motives or sin with bad motives, is beyond what I want to discuss now. Sometimes how one responds to sin determines whether the sinner stays within the community or not and is quite literally dinei nefashot and very important. But it is not my topic now. Of course, good motives generate a different response to sin than bad motives, but such is beyond my topic now.[1]

So, it seems to me that from a halachic view we really have three basic categories: mitzvot, halachically neutral, and violations.

First, there are those things that are mitzvot: activity that Jewish law thinks is to be encouraged and is positive. In my view, absent rare and extenuating situations, it is job of the rabbinate to encourage people (even people with bad motives) to engage in mitzvot.

Second, there is conduct that is halachically neutral, but which some people think brings them closer to God and Torah. This type of conduct is only to be encouraged when the person answering the question thinks that such conduct really does accomplish its task, both for this person and for the community as a whole.

Finally, there is that conduct which violates Jewish law, which we are to seek to encourage people not to do. The issues of how and why and when we do so has to be tempered by our love of every Jewish sinner and our desire to remove sin, but not always the sinner, from our community.

As a side, allow me to use the contrast between these three basic categories of mitzvah, neutral and assur to serve as an explanation, in my view, of the views of Rav Soloveitchik. Some have wondered how the Rav, zt”l, could take such a firm stance against women being the president of a shul, a less firm but yet clear stance against women dancing with a Torah on Simchat Torah and yet take such a clear and firm stance in favor of women learning Gemara: Was the Rav a feminist (as some suggest based on his view of women learning Gemara) or a misogynist (as some have proposed in light of his stance on women as shul presidents?) I would suggest that the contrast between these three categories explains the difference. When (and if) women’s learning Torah she-bal peh is not assur, then it is either a mandatory mitzvah (in some subjects, like hilchot Shabbat) or a permissive mitzvah (similar to women taking a lulav). Since learning Torah for women was, in the Rav’s view, almost always a mitzvah (why the Rav felt this way is not is for now, but he clearly did), not only would he not discourage it, but he sought to always encourage it, exactly because motives do not matter when people are going to perform mitzvot. Dancing with a Torah was not a mitzvah and thus was to be discouraged when motives were not sincere. Since a woman being a shul president was, in the Rav’s view a technical violation of serarah issues, no matter what the motives, it was to be discouraged. The mitzvah, reshut or issur calculus thus explains the Rav’s views.[2]

Why is this form of categorization important? The answer is obvious to me. The first step in deciding the answer to any given question about women and halacha is not deciding the motives of the person asking it, but rather what really is the halacha. After one determines the answer to that crucial question, then and only then do motives play a role.

Let me give you a few examples to reflect on, all focusing on women’s issues. When a woman asks about whether she should light her own menorah or be yotzei with her husband, the first question a rabbi needs to ask himself is the most important: What is the base-line halacha? Is it better for a woman to light her own menorah or not? He will readily discover that this is a dispute between contemporary poskim which he will have to resolve. After he resolves this crucial and central question, which goes to the heart of the question of whether this conduct is a mitzvah or neutral or even an averah, will he be able to consider the question of why the woman might be asking this question. How important motives are is extremely important, in my view, when the conduct is not a mitzvah in and of itself.

The same is true for the question of women’s zimun and for the question of whether to put the mothers name in a ketubah. The first question has to be halachic. Is this a mitzvah, mutar or assur as a matter of Jewish law? Only after determining if this mutar can one have a real conversation about whether such conduct is wise or proper and whether we ought to change our minhag in situations where we question the motives of those who seek such change.

The same can be said about women’s aliyot. The central question should not be whether this conduct is wise or astute public policy or even a violation of minhag yisrael. Our first question should be a technical one: No matter what the motives of the questioner are, is this conduct a mitzvah, mutar or assur? The same methodology has to be true for answering questions of women dancing with a Torah, or circling for hakafot or reading megillah or serving as shochatim or learning Gemara or being a mohel or any other question.

Only after we discuss the base-line halacha for every matter can other factors come into play, such as “minhag yisrael din hu,” balanced against the ever changing needs of a society, as well as our desire to have Orthodoxy both be and appear to be fair and just, and the specific needs of this questioner, as well as many other factors. Of course, this approach inclines us to be more sympathetic to the desire of people to do mitzvot than non-mitzvot (and certainly, averot), but I suspect that this is a deep halachic value for obvious reasons.

Indeed, this same approach, in my view, needs to be asked virtually every time a person comes in to ask a shayla generally. It is a poor reflection on the rabbinate when questions of policy come before questions of halacha. Our congregants and community lose faith in halacha as our legal system when questions of motive seem to trump questions of mutar or assur.

Three concluding thoughts:

First, Nodah beYehuda observes (correctly in my view) in OC 2:18 that when there is a clear minhag yisrael to do something (in this case, to have 12 windows in a shul), but that minhag is an obstacle to serious religious growth, then if the minhag is not grounded in halacha, we ought to abandon the minhag in that particular case. Most of us think that the Noda beYehuda’s formulation is correct, and if that is true, then all arguments of minhag without any serious reference to halacha will not really persuade anyone who is not already persuaded. They will always respond in reference to the Nodah beYehuda: non-halachic minhagim need to change as the reality of life changes. To really persuade someone, we need to speak the language of halacha first and foremost.

Second, some of you will certainly be critical of the post as understating the importance of "minhag yisrael din hu," and this is worthy of a reply. Minhag comes in at least two forms. The first, which is the subject of the phrase "minhag yisrael din hu," is a reference to those cases where minhag serves as tool for resolving halachic disputes in the Talmud or the Rishonim. That, too, has a place in this conversation as a form of hachra’ah of which we need to be mindful. But, when minhag serves to encourage or discourage conduct without any textual halachic foundation (such as having 12 windows in a shul) it is a different kind of minhag and it has to serve a role independent of, and after, the halachic calculus.

Let me give you an example in a halachic area related to women: women saying kiddush. Shulchan Aruch gives us the rule in OC 271:2 that women are fully obligated in kiddush, as men are, and can fulfill the obligation for men. Bach and Yam Shel Shlomo argue and posit that kiddush is like megillah and women cannot fulfill the obligation for men. What should we do? Mishnah Berurah (271:4) notes that the halacha follows the Mechaber as the "Taz, Magen Avraham, Gra and other Achronim agree with him," but yet he adds after his discussion of the classical halachic sources has ended that "the custom is lechatchila not to allow women to make kiddush for people outside her household because of zeluta milta." The Aruch Hashulchan (OC 271:5) reaches a different conclusion[3] and permits women to make kiddush for anyone, but he follows the same methodology: First, an unvarnished assessment of the halacha and then an analysis of the social implications of whether we should actually permit that which is mutar to be widely done. Let me add that the Mishnah Berurah could have said "one should be strict for the view of the Bach" which would have been a totally different hachra’ah as a matter of halacha than to note zeluta milta on the issue. He does not because one should not (let me say more, "dare not for the sake of halachic integrity") mix the question of “what is the halacha?” with “what is a wise policy?”. Mishnah Berurah knows this, Aruch Hashulchan knows this and so should we.

Finally, some will read this post as a plea to permit more than we do, and some will read this as a plea to prohibit more than we do. Neither of these reads is correct. This email is about halachic process; results will follow from halachic process by focusing on what is a mitzvah, what is mutar and what is assur. If we as the Orthodox Rabbinate do not stand up for the authenticity of halachic process, no one else will; if we get into the bad habit of not opening every presentation of a complex topic with a genuine, honest and fair conversation about the halachic sources with no bias, no one else will. As a community, we will be sunk if that happens.

We have to be a halachic community before we can be a traditional community.

Michael Broyde

[1] Let me give you an example unrelated to women. Recently, I entered the hospital room of a dying person who was intensely davening shacharit (he was in the middle of birchot keriat shema when I arrived) but the time of the day was after chatzot. This conduct was sinful, but I chose not to say anything, even when he asked me if he was doing something wrong, in the view that a sincere person like this can maybe rely the view of the Rambam that birchot keriat shema can be said all day, as the Peri Chadash accepts le’halacha, or maybe simply this was not the time and place to explain the issue.

[2] Igrot Moshe OC 4:49 sv ibra d’ika contains a formulation that could be read to the contrary of this formulation, but I do not think that read is correct. Rav Moshe in this paragraph is following his well established view that mitzvot done by kofrim (however defined) are of no value and get no Heavenly reward at all. For that reason he invokes the work kefirah in the final sentence. He is not referring to a women or man who does mitzvot in the generic shelo lishma mode (but who is clearly not a heretic). See IM OC 1:23, 2:50, 3:12, EH 4:80 and many other places for Rav Moshe’s view of mitzvot by heretics.

[3] Interested in the Rav's view on this? Rabbi Joseph B. Soloveitchik recounted, in a response to a halacha l'ma'aseh question, in a public lecture at Yeshiva University on November 6, 1984, that a woman can -- without any hesitation -- recite kiddush even for a large group of people (men and women) in any circumstance, and that this was completely permissible (mutar le'chatchila), since no minyan is required for kiddush and therefore the group is not considered a tzibbur that need be concerned with its honor. This is consistent with my explanation above of the Rav's calculus: Mitzvot are different than non-mitzvot.

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