In the comfortable version we tell ourselves, the rightness of Mattityahu’s decision was clear, the heroes joined him, and victory was swift and obviously miraculous. Sadly, real life rarely operates that way.  By reviewing the story a little more realistically, we can approach this year’s observances with greater awareness of what it would mean to fully embrace the holiday’s message.

 מי לה’ אלי? A Call To Danger, A Call to Trouble

Mattityahu, we are told, became enraged when a representative of Antiochus succeeded at securing a Jewish volunteer to offer a sacrifice to an idol.  He killed the Jew and the non-Jew, and called out מי לה’ אלי, who is for God, come to me, and, with his five sons and a small band of like-minded fellows, fled into the mountains to begin the rebellion.

 Let us leave them there to recall, for a moment, the first occasion when that call was issued.  When Moshe Rabbenu came down from Sinai and saw the Golden Calf, he, too, called out מי לה’ אלי, and the entire tribe of Levi came to his side. 

In that incident, as well, I think we often ignore the human realities (personal disclosure: I have come at some of these same questions using fiction, in “You Can’t Change Human Nature” a story in my collection Cassandra Misreads the Book of Samuel).  The tribe of Levi was, as we are told later in the Torah, one of the smaller tribes of the nation.  While in the end the Levites only had to kill those who publicly worshiped the Calf—three thousand men—they could not know, when Moshe issued his call, how the rest of the nation would react.  The other Jews had not participated in the worship, perhaps, but they had also not protested it. 

Such people—if we can read our times back into the desert’s, at least as a possibility—could easily have decided that death was an inhumane reaction to the sins these people committed.  One group might, for example, have argued that the choice of whether to worship idols or not belonged to those people, and it was not the Levites’ place to tell them otherwise.

More likely, we could imagine people agreeing that they should not have acted in that way, but nonetheless objected to the harshness of death, especially when administered immediately, without the ordinary and vital level of legal process and extended consideration received by other defendants.  Such people could easily decry the Levites as acting rashly and inappropriately.  Or the Levites might have met the opposition of those who argued that the sin was understandable in the context of Moshe’s absence, that it should not be seen as full idol worship, and therefore should not lead to that most final of penalties.

Or variations of same.  All told, the point is, the tribe of Levi had every reason to expect that they would not only have to contend with the relatively small group of sinners about to be put to death, but to broader national concern about how to respond to an admitted failure in the nation’s relationship to God.

Ignoring the Bonds of Family

Complicating the Levites’ position, they would have had to fight their war on behalf of restoring the Jewish people’s relationship with God not only with enemies, but with friends and family members, as Moshe Rabbenu testifies later in the Torah. 

At least once, a Levi had to kill a grandparent (in Hazal’s understanding), a maternal half-brother, a grandchild.  And when they did this, it is not only that we are supposed to recognize and admire their fidelity to God for doing so, I believe we are also supposed to recognize how difficult it was for them.  If Levites were simply cold people with no familial feeling, their actions might be admirable in some sense, but not such easy guides for us in our lives. When Moshe Rabbenu notes their ability to put aside family connections in the name of serving God—when necessary—it only makes sense to praise them this way if those connections were strong and meaningful.

מי לה’ אלי in Mattityahu’s Time: Stripping Away the Romance

Returning to Mattityahu in Modiin, let us remember what he and his sons gave up to spark this rebellion, the price their call of מי לה’ אלי demanded of them and whoever joined them.  From the fact that at least one Jew was willing to offer the sacrifice, and the historical reality that there were many Hellenists in the Maccabees’ time, we are led to realize that Mattityahu did not only stand up for what he knew to be right, he did so in the face of enormous social pressure.  It wasn’t obvious that killing a non-Jew (and a Jew) was the right action, especially given the reprisals it was sure to bring; it clearly wasn’t obvious that running into the hills to try to rebel against a powerful army was sensible in any way.

Commentators and pundits of the time would likely have shaken their heads in disbelief at the insanity of a Mattityahu putting not only himself but his children and grandchildren in danger.  There’s every reason to suppose that Mattityahu and his family knew Hellenists, or moderate Hellenists, and had had at least an uneasy friendship to that point.  For the Maccabees to take off, they had to leave behind any sense of commonality with these people.

And they not only were in danger, they many of them died in the course of this rebellion.  We speak happily of the few who defeated the many, as we should, but the victory did not come without loss and death, nor did Mattityahu and his sons expect otherwise. 

The call of מי לה’ אלי, in other words, was not a romantic call to swift action, immediately rewarded with public acclaim. It was, in both instances, a call to an uncertain future, with great danger, justified only because it was absolutely right.  As we try to place ourselves in their shoes, we should understand that those shoes involved multiple sacrifices, social, physical, economic, and, for many, their very lives.

A Question of Timing

In each of those instances, of course, the immediate question was how to react to an incident of public idol-worship; we might try to absolve ourselves of the need to apply this to our lives by claiming that only such a deep breach of Jewish morals and mores justifies such extreme action.  The story of Pinchas, and the halachot of קנאים פוגעים בו, that the zealous may kill certain people without benefit of court or legal process, shows that there are at least some other examples.

The Pinchas story makes most sense in light of the Talmud’s understanding that אלוקיהם של אלו שונא זימה הוא, that God hates, as it were, sexual immorality, and that Pinchas had the right to respond to public fornication in such a way.  That itself, it seems to me, would be a surprise to many today, who would argue instead for understanding and gentle treatment even of those who publicly and knowingly flout Jewish standards of sexual propriety.

But that is too vexed a topic to allow for rational discussion, so let me instead note a statement by R. Yonah in Shaarei Teshuvah, and then pose it as a thought experiment.  Rabbenu Yonah, III;59, asserts that anyone who does not hold fast to the dispute (מחזיק במחלוקת) with those who follow an improper path is punished with the punishment of those committing those sins; later in the paragraph, he says that anyone who cares about God will be ready to sacrifice himself for the cause (in context, we are left to presume that this sacrifice might be not only one’s life, but one’s social comfort or prestige).

And now, the thought experiment: On what issues would we feel the need to react radically, to hear the call of מי לה’ אלי and rally around that flag, and on what would we feel that we could simply watch the rest of the play, as in the question to Mrs. Lincoln?

This question has been asked before, and has yet to secure the response it deserves.  In the early 1900s, when some religious leaders found Zionism a movement worth attaching to, few actual observant Jews felt moved enough to actually uproot themselves to return to Israel.  I have often tried to imagine how the State of Israel today would look, from a religious perspective, if but a few thousand more observant Jews had joined the many nonobservant pioneers in resettling new sections of the Land.

But perhaps that is, in fact, too radical; there are many reasons to feel chained to the Exile, to feel unable to abandon friends and family to move to Israel.  Let me instead note one personal example, that seems to me even more basic—and even more relevant to the complications of heeding a call to be “for God,” with the hope that my involvement has not clouded my judgment of the matter. 

What Does It Mean To Be “For God”?

I spent some time earlier this year working on a project I called the Mission of Orthodoxy, which I posted weekly at blog.webyeshiva.org.  I argued that there is a basic, fundamental mission to Orthodoxy, clearly laid out in sources known to all, that is or should be unequivocally agreed-upon in all segments of Orthodoxy.  To be clear: I did not argue that I had come up with a core mission of Judaism by my clever reading of sources; I argued that a clear-eyed reading of well-known and basic texts would lead to a realization that halachic Orthodoxy means something not quite the same as what is practiced today.

The series sparked some interest, and some readers were enthusiastic about part or all of it.  Others disagreed with some of my claims, for a variety of reasons.  Neither of those groups are relevant to this discussion.  What is relevant is when I met simple rejection of my premise, without any engagement with the sources.

These were people (more than one) who said, sometimes in so many words, “I want Orthodoxy to be what I’ve always thought it was” or “…what I want it to be.”  It did not matter to them whether I had legitimate and unarguable sources for my claims, they were uninterested. Similarly, a friend recently told me of broaching this notion of a mission to Orthodoxy, only to be told—by committed, concerned students—that they wanted to find their own meaning within the religion, to emphasize the practices they personally found most meaningful, not any system-imposed sense of mission.

That is one example where I disagreed with the people on the other side of the story, but I have no reason to assume there aren’t similar weaknesses in my own life, which brings us back to the question of Hanukkah and Mrs. Lincoln. Faced with an assassination of a president, we all assume we wouldn’t be so obtuse as to still focus on how the play was.  Perhaps; but if we were faced with a Mattityahu, or a Moshe Rabbenu, asking us to risk life, limb, and—perhaps worse— social banishment, how would we respond? 

Would we be able to stand up for a principle that, in the context of the time, was not so clear? Because, remember, if all already agreed with Moshe Rabbenu or Mattityahu about the issue, there would have been no need for the call; it is only when a principle, whatever principle, is endangered enough that many people already have gone the other way, that we get faced with the choices of Hanukkah.

So as we light our candles this year, as we open our presents, eat our sufganiyot or our latkes, one question I hope we ask ourselves is: do we shoulder the legacy of the Maccabees? Do we recall the importance, for Jews, of standing up for our principles precisely when it is most difficult to do so, when those around us will see us as extremists or worse for so doing?  And, on the other hand, do we know when it is time to return to ordinary life, to clean the Temple, return the service to its ordinary functioning, and going back to the world as it was? I hope we do, and that we all have a Happy Hanukkah.

I wondered if this perceived chumrah was so crazy or unfounded, and therefore investigated the issue for my Jerusalem Post column.  Since it will only come out on Friday -  too late for readers in Chutz La-Aretz – I copy it below (with some small changes), and then continue with some thoughts this ‘criminal’ chumra.

Q. May I wear Crocs on Yom Kippur?

A.  The propriety of wearing comfortable non-leather shoes on Yom Kippur has engaged public dialogue over the last several years, following the banning of Crocs by Rabbis Yosef Elyashiv and Yaakov Ariel, amongst others.  Despite the brouhaha, this debate actually continues a millennia-old discussion regarding the prohibitions of Yom Kippur.

The Torah never details which specific actions are forbidden on Yom Kippur.  Rather, it repeats five times a more generic exhortation that a person should impose afflictions (innui) on themselves, along with refraining from the work actions regularly forbidden on Shabbat.  Unlike the medieval Karaites, who expanded these afflictions to include wearing dust and sackcloth, abstaining from sleep, and other deprivations, the Sages rejected unlimited or undefined anguish (such as sitting in the sun all day).  Instead, they limited this precept to five areas of self-denial: bathing, anointment, sexual relations, donning shoes, and nourishment (eating and drinking), with the latter seen as the most severe of the actions, punishable by spiritual banishment (Yoma 73-4).

Some scholars believed that despite this self-denial, an element of festive joy is mandated, just as it required for other holy days (mikraei kodesh) singled out by the Torah (Leviticus 23:27).   In addition to the requirement of wearing nice clothing (Shabbat 119a), we also recite the shehechiyanu blessing for special occasions and cease shiva mourning practices, indicating some form of festive nature to the day (R’ Yonatan Me-Lunil Eruvin 40a).  Indeed, some understood the requirement to eat on Yom Kippur eve to fulfill the norm of feasting performed on festivals (Bet Yosef OC 604).  The Talmud further states that Yom Kippur was deemed a happy occasion because of the atonement afforded by the day (Ta’anit 30b). 

Notwithstanding the spiritual fulfillment achieved, most scholars understood the day to be unique precisely because it lacks festivities (Chizkuni, Sforno 23:27).  As such, we refrain from reciting the joyful Hallel prayer or excessive happiness (Hilchot Chanukah 3:6), deemed inappropriate for a day of judgment (Erchin 10b).  Ultimately, the Torah aims to achieve a day of respite (shabbaton) from physical pleasure that coalesces into a feeling of affliction (Rambam Mitzvot Aseh 164). 

This goal, however, might afford certain leniencies with activities clearly not intended for pleasure.  The Talmud, for example, allows people to rinse dirt from their body, and to wash their hands after using the bathroom or before performing ritual activities (OC 613).  These dispensations led some to assert that these prohibited activities – with the exception of nutrition – originated as rabbinic edicts (Rosh Yoma 8:1).  Others, however, believed that the Torah only prohibited acts of pleasure, leaving room for leniency in other circumstances (Yereim 420).  By its nature, however, anointments and nutrition entail enjoyment, thereby precluding leniency, except in cases of medical necessity (OC 614:1, 618).    

                An interesting debate exists regarding actions which do not constitute prohibited activities but alleviate discomfort.  The decisors discussed, for example, whether one can enjoy the aroma of snuffing tobacco, with many permitting it (Aruch Ha-Shulchan 612:6) and some suggesting it as an appropriate way to mark the festivity of the day (Shu”t Gan Ha-Melech 145).  Other scholars similarly allowed people to swallow slow-release pills before the fast to prevent headaches (Tzitz Eliezer 7:32).

                Contrary to popular belief, the Talmud never explicitly limits the ban on footwear to leather shoes.  The mishna states a blanket prohibition (Yoma 73b), with a parallel Tanaitic text further forbidding socks (Tosefta 4:1).  The only exceptions explicitly made are in cases of illness, inclement weather, or while walking in hazardous areas. 

However, the Talmud records that some Sages would wear footwear made of reeds or rags (Yoma 78b).  Some understood these Sages as limiting the prohibition to a formal “shoe,” rendering all other protective devices permissible.   Others, however, contended that this was only allowed in cases where one’s foot still felt discomfort from the ground; anything that provided greater protection was disqualified (Ramban Shabbat 66a, Kovetz Ha’arot Yevamot 692).

                This dispute continued into the medieval era, with Maimonides (Shvitat Assor 3:7) and others requiring one’s foot to feel the ground, with others, followed by Rabbi Yosef Karo (OC 614:2), stating that only footwear made from the strong material of leather or wood constitute forbidden shoes.  Although this remains the normative position, many prominent figures, including Rabbis Yisrael Kagan (MB 614:5, following Chatam Sofer) and Yehiel Epstein (Aruch Ha-Shulchan 614:4), believed it was meritorious to wear slippers or shoes with soft soles that allow one to feel the ground.  While Rabbi Joseph Soloveitchik also discouraged padded sneakers (Nefesh Ha-Rav 210), Rabbi Moshe Sternbuch went further to suggest that any regularly worn comfort shoes should not be donned on Yom Kippur (Moadim U-Zmanim 6:28).  Despite these sentiments, the widespread practice, as noted by Israel’s chief rabbi, is to follow the baseline normative law and to wear any non-leather shoes, as defended by many other decisors (Shu”t Maharshag 2:110).

(For the record, this writer does not wear Crocs… ever, because they do not fit my narrow feet!)

Is this Chumra So Unreasonable?

So let’s summarize the issue:  There is long-standing strand of thought which believes that the prohibition of neilat ha-sandal (and possibly all of the Yom Kippur prohibitions) is not merely against certain formal actions (like wearing a specific type of shoe), but to create some form of discomfort.  This sentiment is well-founded in the gemara and rishonim.  The Shulchan Aruch, however, seems to exclusively ban certain types of shoes (leather and wood), following a significant strand in the gemara and rishonim as well.  This is affirmed as the normative position by the Mishna Berura and others.  However, not everyone accepted this opinion – such as the Bach 614 – and there are many reports of gedolim like the Gr”a who took upon themselves personal chumrot so as to truly feel a sense of physical affliction (Pitchei Teshuvot 614:4).  There are, furthermore, a group of very significant contemporary poskim who state that it is appropriate for the masses to be machmir to wear shoes with soft soles.

As such, is the psak against Crocs really so unreasonable?  In my mind, it is perfectly legitimate for a posek to adopt such a well-founded position.  This is particularly true since there are other shoes that can be worn which are reasonably comfortable yet allow a person to still feel some form of self-denial (innui).  One may legitimately argue that even if this is not necessary according to the letter of the law – as argued by some rishonim – it is appropriate according to the spirit of the day.   Therefore, while the lenient position is perfectly legitimate, it is perfectly reasonable to be machmir.  

This is, more or less, the psak of the Mishna Berura, who very clearly distinguishes between din and chumra.

משנה ברורה סימן תריד ס”ק ה

… וכן יש מחמירין שלא לצאת במנעל העשוי מלבדים (שקורין וואליק) ועשוי כמנעל שלנו והוא מגין על רגל ואינו מרגיש כלל שהוא יחף ולאו בכלל עינוי הוא ולפ”ז ה”ה (קאלאשין) של גומא יש להחמיר. והנה אף שאין למחות ביד המקילין אחרי שהשו”ע ורוב אחרונים מקילין בזה, מ”מ מי שאפשר לו נכון להחמיר בזה ולילך באנפלאות של בגד כנהוג אכן אם צריך לצאת החוצה נכון יותר שילבש אלו הלבדים או הקאלאשין ולא מנעלים של עור שיש בהם איסור מדינא משא”כ אלו שהם רק משום חומרא:

Another important factor is that no harm is done to someone else with this chumra.  If you are machmir, say, in gerut or industrial kashrut, other people’s lives are deeply affected.  But here, it’s one person’s discomfort.  Additionally, one might take into account that during Aseret Yemei Teshuva, there is definitely a well-founded strand of halakha which advocates taking upon chumrot during this time period. 

I’m not advocating one way or another, and certainly, in individual cases (such as people with feet pains), various variables will also play a role.  My point is to simply state that after a little bit of additional learning, the hysteria should dissipate.  Reasonable people can disagree, and reasonable people can be machmir or mekil.  I too don’t like it when I think that a posek is unreasonably machmir.  But I have an equal dislike for people assuming, in ignorance and to our peril, that any stringent opinion is a cursed chumra.    

Gmar Chatima Tova.

Particularly since the Six-Day War, there has been an ongoing discussion within Israel regarding the propriety of stating the Nahem prayer during Mincha of Tisha Be’av.  Below I provide a brief summary, adapted from my Jerusalem Post Ask The Rabbi column, which, because of editorial complications, will only appear in the paper this coming Friday. 

Why do Jews continue to commemorate Tisha Be’av if Jewish sovereignty has been restored to Jerusalem?

The 9^th of Av (Tisha Be’av) fast day is the bookend of a three week mourning period that also begins with a fast on the 17^th of Tamuz.  Amongst other tragedies, the primary events attributed to these dates relate to the loss of political sovereignty and the destruction of the Temples (Ta’anit 4:6). The rites of mourning include refraining from festive celebrations, haircuts and shaving, and consuming meat.

With the return to political autonomy in 1948, and particularly after the unification of Jerusalem in 1967, some began to question whether such mourning remained appropriate.  Based on Zechariah’s prophecy (8:19), the Sages believed that when peace returns to Israel, the minor fast days – including the 17^th of Tamuz, 10^th of Tevet, and fast of Gedaliah – will become holidays (Rosh Hashanah 18b).  Some commentators minimally defined the requisite conditions as the removal of Gentile rule over the Jewish people (Rashi). Others, asserted that the days will become festivals only with the rebuilding of the Temple (Ritva).  The Talmud further asserted that if the Jewish people found themselves under the non-violent rule of Gentiles, these fast days would be optional, even as Tisha Be’av would remain obligatory because of the gravity of the day’s tragedies.      

Following the reunification of Jerusalem, the Masorti movement made these fast days optional, while a group of Orthodox academics shared a le’chaim together at the Western Wall on the 17^th of Tamuz!  The Orthodox rabbinate, however, has universally affirmed the continued necessity of the fast (Machatzit Ha-Shekel 550:1), contending that after centuries of observance, the community accepted upon themselves this fast as binding until the rebuilding of the Temple (as affirmed already in medieval times – see Tshuvot Geonim Sha’arei Teshuva 77). Greater dispensations, however, are issued for pregnant and nursing women and the minorly ill. 

As Dr. Yael Levine has documented (Techumin 21), some questioned whether the new political reality mandated a change to the recitation of “Nahem” (“Comfort Us), the special Tisha Be’av insertion into the Amidah mourning the destruction of Jerusalem.  Originating in the Jerusalem Talmud (Brachot 4:3), the text and time of its recitation has evolved over the centuries, including the substitution of its opening word, “Rachem” (requesting compassion).  Today, Askhenazim recite it exclusively in the afternoon amidah, while many Sephardim recite it in each prayer, with minor textual discrepancies between their versions. 

The prayer describes Jerusalem as a “city that is in sorrow, laid waste, scorned and desolate,” destroyed and conquered by because foreign armies and idolaters.  In August 1967, then-IDF Chief Rabbi Shlomo Goren altered the text in the IDF prayerbook to reflect the new reality.  Basing himself on historical textual variants, he removed the depictions of a Jerusalem “scorned and desolate” while “sitting in mourning like a barren childless woman.”       

The non-Orthodox movements adopted the more comprehensive changes of Prof. Epharim Urbach, who altered the text to a plea for compassion (rachem) for Jerusalem “which is being rebuilt upon its ruins, restored upon its ravage, and resettled upon its desolation.”  It also included a reference to those who died in the Holocaust and in Israel’s wars, as did the alternate version penned by Rabbi Abraham Rosenfeld, who further included a plea for vengeance and the ingathering of Jews back to Zion. Netanya’s Chief Rabbi David Shloush changed the bulk of the text to refer exclusively to the lack of religious worship on the Temple Mount (Chemdah Genuzah 21).

Most Orthodox scholars did not accept these changes, for various reasons.  While refusing to condemn those who recited alternative texts, Rabbis Tzvi Y. Kook and Shaul Yisraeli believed that such changes were not appropriate as long as the Temple remained destroyed.  Similar sentiments were added by Chief Rabbis Isser Unterman and Ovadiah Yosef (Yechaveh Da’at 1:43), who further noted the continued presence of non-Jewish worship on the Temple Mount and Israel’s general spiritual depravity.  Rabbi Joseph Soloveitchik added his general opposition to ritual emendations, particularly with regard to prayers (Masorah 7).  Indicative of this trend was Soncino Press’ decision to remove Rabbi Rosenfeld’s alternative version after it purchased the rights to his Tisha Be’av prayerbook used in many Diaspora synagogues. 

Proponents of the emendation retorted that this prayer’s text has always had fluidity, allowing for certain alterations, especially if the crucial concluding blessing formula remains intact.  They also contended that a failure to change the text made our prayers dishonest, while further insinuating that the opposition stems from polemical concerns for appearing like Reform movement innovations.   

The most modest proposal was offered by Tel Aviv Chief Rabbi Hayyim D. Halevi (Aseh Lecha Rav 2:36), who suggested merely amending the depiction of Jerusalem to past tense (“was in sorrow”).  While seconded by Rabbi Shear Y. Hacohen, this change has not received popular acceptance, leaving the prayer’s ultimate fate for a future era.    

Around this time of year, we once again face our continuing state of חורבן, of the destruction not only of our Temple, our Beit haMikdash, but really of the national, legislative, judicial, social, and cultural structure that would be ideal for our people.  There are many explanations for why and how this happened, perhaps the best known being Yoma 9b’s assertion that the second Beit haMikdash was destroyed for the sin of שנאת חנם, baseless hatred.  I think a further consideration of other chapters of our history, positive and tragic, will help us deepen our understanding of what the Gemara meant.

To start on a positive note, we often point to the Jews’ readiness to accept the Torah, their declaration of נעשה ונשמע, we will do and we will listen, as the height of the proper attitude towards God’s commands, to be ready to obey and only later come to understand.  Part of what is required there, I believe, is the flexibility to accept that other truths and other modes of action can turn out to be as correct or more correct than those to which we are accustomed.  God’s commands in the Torah ran against the grain of what the Jews had learned about ethics and morality in Egypt, and yet they were ready to say, “we will do,” even as they did not yet comprehend the command.

I think we often take the reference to נעשה even in the absence of נשמע as referring to those commandments that seem most esoteric, פרה אדומה, the red heifer, or the like.  What we forget is that for the Jews leaving Egypt, much of what we take as ordinary would have been starkly countercultural.  When Vayikra 18;3 introduces the section on the עריות, on the sins of sexual immorality, by saying “ כמעשה ארץ מצרים… וכמעשה ארץ כנען…לא תעשו, like the actions of the Land of Egypt…and the actions of the Land of Canaan…you shall not do,” we seem to assume that the Jews easily recognized the immorality of those actions.  Biblical history tells us otherwise, since the Jews repeatedly fell back into those very sins.

The challenge of נעשה ונשמע, in other words, was not only to hold to their commitment, it was even to make the commitment in the first place.  In a world that knew of Egypt and Canaan as highly advanced societies, to reject their practices as immoral–a challenge repeated for the Jews of Hasmonean times in terms of the Greeks, and the Jews of Talmudic times in terms of the Romans and Persians—took the ability to accept that less obvious truths might be more correct.

A different version of that flexibility of mind occurs on two occasions when Jews were dedicating or rededicating the Beit haMikdash.  At its original dedication, the Gemara in Moed Katan 9a tells us that Shlomo haMelech and the people celebrated the structure’s completion for the seven days before Sukkot, including Yom Kippur. Although the Gemara is not explicit about it, it seems that Shlomo haMelech did not have direct and prior Divine license to do this, but that his actions were ratified by God after the fact.

Similarly, in II Divrei haYamim 30, Scripture tells us of Hizkiyahu haMelech gathering as much of the Jewish people as possible to offer a Paschal sacrifice.  He allows the ceremony to go forward even though he knows that many of the people have not properly purified themselves, assuming and praying that ה’ הטוב יכפר בעד, the good Lord will atone for those who do so sincerely.

I do not offer either of those as models to follow in terms of allowing ourselves to transgress the Torah in the name of some higher principle.  What the kings of Israel can do—presumably in some kind of consultation with the prophets and Torah scholars of their time—differs radically from what we can do.  The aspect of those experiences that does seem transferable, however, is the flexibility to approach new situations as appropriate for those situations.

On the reverse side, the failures of the time of the Destructions seem to relate to the exact opposite quality, an inability to think flexibly, to recognize and adjust one’s sense of right and wrong.  In what I find one of the most tragic episodes in Tanach, chapters 42-44 of Sefer Yirmiyahu tell us of several interactions the prophet had with the people after the Destruction.  To set the scene: these are people who have heard Yirmiyahu blather on for years about a coming Destruction, have rejected his message throughout, and then seen the actual Destruction arrive, as he had predicted.

They come to him now to ask whether they should stay in the Land or flee to Egypt, and promise (at least according to the simplest reading of the text; Malbim thinks they were never sincere) to listen to whatever Yirmiyahu tells them in the name of God.  In my book of stories, Cassandra Misreads the Book of Samuel, I suggested that it was the ten long days before Hashem replied that led them astray, that put them back in their usual mode of rejecting Yirmiyahu’s advice.  Whatever did it, when Yirmiyahu tells them of God’s words, they call him a liar, and go to Egypt.

The tragedy, however, is not done.  In chapter 44, when Yirmiyahu remonstrates with them for worshiping other gods (remember: this is in Egypt, after the Beit haMikdash has been destroyed, the Jews dispersed, and this band of Jews having again ignored God’s words), the people again repudiate his words, arguing in reverse, that it is their failure to properly worship those other gods that led to their troubles.  The ability to admit that a different strategy is needed to confront the future is not always natural or simple.

Hazal’s portrayal of the events that led up to the second Churban echoes similar themes.  Gittin 56a tells the famous story of the host whose servant accidentally invited the wrong guest and proceeded to kick him out, in front of gathered Sages.  The host did not have the flexibility of mind to recognize that whatever had caused their rift paled in comparison to the level to which he was now taking it.  The gathered Sages apparently were not able to take themselves out of their ordinary sense of politeness to protest the public mistreatment of the man.

At a later stage of that drama, the Sanhedrin debates offering a sacrifice in which Bar Kamtza had placed a blemish. R. Zecharyah b. Avkulas objects twice, noting that violating the strict halachah might give the wrong impression.  Right as he was technically, R. Yohanan later criticizes him, saying that his unwillingness to bend to the realities of a situation led to the destruction of the House, the burning of the Chamber, and our exile from the Land.

Lack of flexibility might also serve as a source for שנאת חנם, baseless hatred. If it is truly baseless, hatred stems from our discomfort with the differences we see in another—they are not like us, so we hate them.  A little flexibility of mind (in this case, attached to generosity of spirit) would short-circuit that reaction, letting us see each other with the recommended אהבת ישראל, and, we can hope, return us to the structure that showed us so many examples of that kind of flexibility and its lack, במהרה בימינו.

The core prohibition of learning Torah on Tisha Be’av permits certain narrow exceptions (see Taanit 30a).[1]  Most well known is the allowance to study tragic material, such as Jeremiah and Job.  This makes much sense.  As the Talmud explains, the ban on learning during Tisha Be’av derives from the joyous nature of Torah study (“The precepts of the Lord are right, rejoicing the heart (Psalms 19:9)”).  But depressing subject matter does not have this quality, and therefore its study is entirely consistent with this day of historic mourning.[2]

Yet a lesser known dispensation is more difficult to fathom.  According to one tannaitic opinion a person may study material that is unfamiliar on Tisha Be’av: koreh hu be-makom she-eino ragil likrot, ve-shoneh be-makom she-eino ragil lishnot (he may, however, read sections which he does not usually read and study portions which he does not usually study).[3]  What is the basis for this leniency?  Rashi offers a similar explanation to the one above: keivan delo yada it le tsara (since it is unfamiliar to him, it causes him distress).  The difficulty (tsaar) of studying unknown material diminishes the joy.  Therefore, such learning is permissible on Tisha Be’av.   

Rashi’s widely-held explanation is not entirely satisfactory.  On an experiential level, exploring fresh material and encountering novel Torah concepts often generates much joy for a Torah student.[4]  Perhaps more to the point, Rashi’s explanation seems halakhically objectionable as well.    Consider the discussion in poskim about whether one can read Torah verses as part of a set recital (i.e., as part of davening, or in preparation for Torah leining, etc.).[5]  The thrust of the lenient viewpoint is that when material is sufficiently familiar to a person, and its study or recitation are essentially routine, it engenders less joy.  Why does the gemara not state that leniency here?  Further, the relaxation of the prohibition for routine study cuts in the opposite direction of Rashi’s explanation of the allowance to learn unknown material.  In the former case, the argument is that the more familiar the subject matter the lesser the joy, while in the latter case the argument is reversed.  Although both positions have a certain internal logic, their opposite orientations seem inconsistent, and difficult to harmonize.  Moreover, in another context, the gemara discusses when one is obligated to study Torah inside of a Sukkah and when one is exempt under the rubric of mitstaer.[6]  Distinguishing between different kinds of study, the gemara states that learning be-iyun can take place outside of the Sukkah, for—as Rashi explains there—one who has to exert much mental energy to plumb the depths of a (no doubt familiar) topic is mitstaer.  Why do we not have a similar dispensation to learn a familiar topic be-iyun on Tisha Bav?[7]    

As an alternative to Rashi, therefore, I would suggest that rather than focusing on joy, or the tsaar which cancels the joy, the crux of this leniency lies elsewhere—in the very nature of learning unfamiliar material.  When a person is koreh be-makom she-eino ragil likrot his or her primary experience is confusion.  Studying alien material is disorienting, and one of the few forms of learning that is allowed on Tisha Be’av is confused Talmud Torah![8]

*  *  *

Why may one study confused Torah on Tisha Ba’av?  What is the origin of this idea?[9]

A Talmudic source from a different context may shed light on this concept.  Offering a dramatic description of the aftermath of Moshe’s death, Temurah 16b states: 

Rab Judah reported in the name of Samuel: Three thousand traditional laws were forgotten during the period of mourning for Moshe…It has been taught: A thousand and seven hundred kal va-homer and gezerah shavah and specifications of the Scribes were forgotten during the period of mourning for Moshe. 

What this remarkable gemara captures is the pervasive confusion triggered by a national cataclysm and widespread grief (in this case precipitated by the death of Rabban shel Yisrael).  The intensive trauma of Moshe’s death ruptures tradition, and leads to an erosion in the understanding of Torah.

Another poignant gemara about Moshe’s death may subtly reinforce this same theme.  In the context of analyzing the distinct halakhic status[10] of the final eight verses of the Torah which describe Moshe’s death, the gemara (Bava Batra 15a and Menahot 30a) debates whether Yehoshua or Moshe authored these epilogue verses.  If Yehoshua authored them, then it is apparent why they have a different halakhic status.  But what if Moshe authored them?  R. Shimon offers the following explanation:

Said R. Shimon … what we must say is that up to this point the Holy One, blessed be He, dictated and Moshe repeated and wrote, and from this point God dictated and Moshe wrote bedema (with tears)…

Similar to the Temura passage, this gemara likewise understand that mourning over the death of Moshe—even Moshe’s own mourning—affects the transmission of Torah.  Instead of following the usual protocol of repeating the Torah and then transcribing it, a distraught Moshe does not reiterate the final verses.  Moreover, instead of ink, Moshe uses less permanent tears to record these sorrowful verses.  Intensive mourning interferes with the process of revelation.  Another interpretation of this passage offered by the Vilna Gaon[11] may have a similar connotation.  According to the Gra, Moshe wrote the final verses bedema-bedimua—that is, in confusion and out of order.  Perhaps these two interpretations of R. Shimon’s teaching converge: Moshe, writing in tears of sorrow, wrote a confused Torah.  For the Torah of trauma and irreparable loss is one of chaos and confusion.

Returning to the context of the destruction of the Temple, traces of the same theme can also be discerned.  Already beginning with the advent of the Three Weeks, a striking Yerushalmi revolves around this notion.  Reacting to the Mishnah’s explanation of the 17^th of Tammuz as the day when the Temple walls were breached, the Talmud asks why Jeremiah (52:6) records a different date, the 9^th of Tammuz.  Responding to this inconsistency, the Yerushalmi provides a startling response.[12]  Even though the tradition of the 17^th as recorded by the Mishnah is correct, there was kilkul heshbonot (a breakdown in the calculation) which led Jeremiah to record the wrong date.  But this is difficult to comprehend:  how could Jeremiah, who writes with prophetic accuracy, record the wrong date?[13]  In light of the above theme, however, one could suggest that Jeremiah’s prophecy reflects the chaos of churban where inspired traditions are confused.  A jarring miscalculation reminds the biblical reader that even the steadfast prophet cannot withstand the turmoil of catastrophe.

In the throes of destruction, at the nadir of Tisha Be’av, the helpless bewilderment knows no bounds.  Midrash Eichah Rabbah (Petihta 23) reads as follows:

…one finds that all the difficult and tragic prophecies that Jeremiah prophesied did not come about upon them until after the destruction of the Temple, “on the day when the guards of the house tremble (Kohelet 12:3)”…” and those who grind cease working (Ibid.),” this refers to the great Mishnaic collections, such as the Mishnah of Rabbi Akiva and the Mishnah of Rabbi Oshaya and the Mishnah of Bar Kappara, “because they are few (Ibid),” this is the Talmud which is included in the them, “and those who look through the windows see dimly,” one finds that when Israel went into exile among the nations not one of them could recall his own learning …(emphasis added) 

A harrowing depiction of the unraveling of tradition in the wake of disaster, the ultimate line captures the paralyzing confusion of the exiled sages.  Likewise, Midrash Eichah Rabbah (Petihta 25) sounds a similar motif:

…regarding that hour he says, “Give glory to the Lord your God before He brings darkness (Jeremiah 13),” before He brings darkness onto you from the words of Torah, before He brings darkness onto you from the words of the prophets…

An ominous destruction extinguishes the illumination of Torah.  Instead of clairvoyance, the Torah student struggles to make sense of tradition through a dimming darkness. 

The very layout of Eichah’s lament displays the same essential theme.  As Rav Soloveitchik often stressed, the first four chapters of this book adheres to a strict aleph-bet acrostic structure (with the third chapter following a triplet for every sequential letter).[14]  However, at the apex of the book—at the culmination of catastrophe and destruction—this structure crumbles.  A chaotic dispersal of verses overwhelms the fixed control maintained throughout the early chapters of misfortune.  Commotion and upheaval are unleashed in the heart of calamity.

Thus, the baraita’s allowance to study confusing subject matter is a pained invitation to experience the tragic Torah of Tisha Be’av;[15] to enter into the trauma of churban where one is afflicted with “…madness, blindness, and confusion of mind.”[16] 

[2] Indeed, the Rav argued that such study constitutes a kiyum in the day of Tisha Be’av.  See Shiurei Harav on Avelut and Tisha Be’av, p.45.

[3] This opinion is first recorded in Yerushalmi Moed Katan 3:5 in the context of a mourner, but the Bavli may only apply this in the context of Tisha Be’av (see fn. 1).  This opinion is rejected lehalacha by most poskim.  But see Rosh Moed Katan 3:37, and the discussion in the Talmud Halakha Berura.

[4] See Taz Oreh Hayim 554:2.  See also the discussion of the Rav in Harere Kedem, volume 2, pp. 291-93.

[5] See Tur OH 559 and Shulkhan Arukh OH 554:4.

[6] Sukkah 28a-b and Rashi ad loc.

[7] One could respond that one has both simha and tsaar and the two are not contradictory.  But that would also apply in the context of koreh hu be-makom she-eino ragil likrot.  Indeed, that is another objection to Rashi’s explanation on Taanit 30a.  Namely, why does tsaar in the learning process negate the inherent simha of Talmud Torah?  One can have both simha and tsaar at the same time.

[8] Thus, it is less about the hefza of unfamiliar Torah, and more about the masseh (or kiyum) of this kind of Talmud Torah.

[9] While my explanation below may extend to all mourners, it makes most sense in the context of a pervasive national trauma.  See fn. 1 above. 

[10] See Rashi and Tosafot on Bava Batra 15a.  See also Rambam and Raavad Hilkhot Tefilah 13:6.

[11] See Aderet Eliyahu al Ha-Torah.

[12] Contrast this with the explanation offered in Bavli Taanit 28b.

[13] I thank Rabbi David Stein who brought this question to my attention (citing Rabbi J.J. Schacter), and noting the discussion of the Maharsha on Taanit 28b.

[14] See The Lord is Righteous in All His Ways (ed. Rabbi J.J. Schacter), pp. 134-136.  I believe that the above explanation which interprets the chaos of chapter five as reflecting the intensifying churban is also the insight of the Rav, but I have not been able to identify a source.

[15] Having lost a firm grasp over the Torah, the intensive mourner senses it slipping away in the bleak hour of destruction.  Indeed, a haunting ritual recorded in Masechet Soferim (likely of Geonic provenance) captures this feeling:

The reader of Tisha Bav says, ‘Baruch Dayan Ha-emet.’  Some place the Torah on the ground in a black wrapping and say, ‘The crown is fallen from our head (Lam 5:16),’ and they rend their garments and eulogize as with a man whose dead lies before him.…

Instead of grasping the living Torah (Etz Hayim Hi le-mahaziqim Bah), this ritual demonstrates the Temple mourner’s loss of control over a lifeless one.  Indeed, the state of confusion described above is only the first phase in national mourning.  Afterwards, a more devastating silence sets in.  Numerous additional sources reflect this theme in the context of Tisha Bav mourning and Torah study, and require separate treatment.

For an additional analysis of the Soferim passage, see Rabbi Nati Helfgot, Or Hamizrach 42:2 (1994), pp.179ff.

[16] The full verse reads “The Lord will afflict you with madness, blindness, and confusion of mind (Devarim 28:28).”  I Thank Rabbi Dr. Jonathan Helfand for reminding me of the poignancy of this verse.  The Ramban (Vayikra 26:16 and Devarim 28:42) links the tockheha of Devarim to the churban of the Second Temple.

Megillat Ruth:  A Unique Story of Torat Hesed by Yossi Prager (35:4, 2001)

A (Critical) Review of Artscroll’s edition of Megillas Ruth by Isaac Boaz Gottlieb (21:1, Spring 1983)

Chag Sameach!

Shlomo Brody

Mistakes are sometimes self-contained, so that they affect nothing other than the issue they address.  Sometimes, though, mistakes—or even just slight misrepresentations of the truth—feed on themselves and end up overshadowing or obscuring important other truths.  Pesach and Shavuot, for me personally, are among the times when the latter is true, when our attachment to either mistaken or ancillary aspects of the holiday cause us to miss more significant points God wanted us to catch. 

I review these examples here for their own sake, to remind us of the more significant points about those holidays I think we have been missing, but also in the hopes that seeing these will spark a reconsideration of whether we do that to other parts of the religion as well (Full disclosure: I have been doing this for some time, much of it captured in my posts at blog.webyeshiva.org, 23 so far, with 4 more to go, trying to define the Mission of Orthodoxy).

Within the modern observance of Pesach, there are many examples of stressing the tafel over the ikkar, the subordinate over the primary, but I will focus on kitniyot. A valid custom in its context, I this year came across a statement that made it clear that the custom has led to serious students of Torah to misapprehend the nature of the Torah’s interest in our avoiding hametz.  To see how, we need to briefly review some of the issues around the custom itself.

Kitniyot—The Custom and Its Ramifications

Kitniyot, let us recall, are those foods—rice, legumes, corn—that Ashkenazic Jews around the secular year 1200 started to refrain from using on Pesach, either out of fear that actual grains would be mixed in with these kitniyot, or out of fear over confusion of what was or was not hametz.  The custom has come to include in it mixtures of kitniyot and even mixtures in which the incorporated material is what is called mei kitniyot, juices made from the original kitniyot. There are, for a contemporary example, many products whose only Pesach problem is that they contain high fructose corn syrup, which contains little if any actual corn.

While there may be arguments for why Ashkenazic Jews need no longer follow that custom even in America, some of which I reviewed in classes I have given for the Webyeshiva (archived at webyeshiva.org), there are stronger ones for that being true in Israel. As some have argued, Israel has long been ruled by Sephardic custom, in particular that of R. Yosef Karo, the author of the Shulchan Aruch.  For one example, R. Ovadya Yosef has often rejected other versions of Sephardic practice in favor of Shulchan Aruch’s, arguing that Israel is atra de-maran, is the place of our teacher (R. Karo), and that his rulings are therefore authoritative.

R. Ovadya always explicitly exempts Ashkenazim from that (since we are יוצאים ביד רמ”א, followers of Rema), but in the case of customs that is less compelling, since custom is so significantly tied to place.  Further, on a purely practical level, many kosher for Passover products in Israel contain kitniyot, and many Ashkenazim forget to check that the symbol says that something is free of such kitniyot.

My concern here, however, is with how the custom changes the experience of Pesach from what the Torah and halachah envisioned, both practically and ideologically. Practically, Ashkenazic Jews are forced to change their purchasing patterns to a much greater extent than the original halachah required.  Just the example of high fructose corn syrup would show how many products we buy in special forms, at extra cost, that without this custom could be permitted in their usual forms.  As I go through my cabinets each year, noticing the ketchups, dressings, and drinks that I could have in their ordinary form but for this custom, I wonder at how we have changed the experience of Pesach from what God ordained.

The Emotions of Eating Hametz-Like Foods 

That change extends to our conceptualization of the holiday as well.  I was particularly struck, this year, by reports of two different important Israeli rabbis, noted talmidei hachamim each (I leave out their names since I plan to vigorously critique their stance), who made known their feeling that Jews should have an emotional inability, an halachic revulsion, for eating foods that are too similar to hametz.  For them, the various potato starch cereals and pizzas, many of which have reached a perfectly acceptable level of edibility, are too close to the real thing; the experience of Pesach, they argue, is not to avoid the foods the Torah told us to, but to avoid that type of food experience.

This is actually a broader general issue in halachah, trying to figure out when the Torah means to prohibit a certain act or that type of act.  Halachah has long allowed various technical ways to circumvent the prohibition against taking interest on loans, for example, which assumes the Torah only prohibited specific acts, not type of acts.  Yet I assume we would disapprove of using such fictions to allow us to charge burdensome interest to a poor person who needs the money to tide him over until times get better.

Much as I grant that many times there is a spirit to a commandment that extends beyond the narrow confines of its defined halachah, I see reasons to assume that that is not true of hametz.  First, various extensions of hametz were discussed by the Torah and Hazal without any implication that obviously it should be prohibited for looking too much like hametz.  Mixtures of hametz, for example, are significantly less prohibited than pure hametz, as are cases where the hametz has been partially ruined. 

More than that, though, is the Gemara’s approach to rice.  While rice was seen as being extremely close to the other five grains in how it is used and how it is experienced—so close that the bracha for it is mezonot, just like the other five grains—the Gemar has no issue with using it on Pesach.  (The same is true of tradition’s reaction to potatoes).  

Apparently, the Gemara and tradition understood the Torah to prohibit hametz primarily in its purest form. Lesser forms are still prohibited, at whatever level, as extensions of the original hametz, not independently problematic items.  Once we move out of the realm of hametz, there would seem no reason to be alert to extending the experience. 

Hametz—Primarily an Eating Experience Prohibition? 

True, we have an obligation to follow the custom that did extend the prohibition, but no more than the custom applied itself to.  To use that custom as the basis for declaring a new principle, an opposition to anything that gives the feeling of eating hametz seems to me not just a mistake in Pesach terms, but in religious terms in general.  It assumes without evidence from the Torah, the Oral Law, and even the custom itself that the Torah was concerned with a certain eating experience. Committed as I am to trying to understand halachah’s reason for various commandments, I also think we need to be alert to overexplaining, or to offering explanations that make a great deal of sense but do not match the halachic evidence.

 What if, for example, the point of the prohibition of hametz was merely to shift our usual use of the five central grains, to force us, in using those grains, to pay careful attention to the process, to be assiduous about making that process go as quickly as possible? I could imagine, for example, that this could have been seen by the Torah as a reminder of the alacrity we should bring to our relationship with God. If so, the point of the prohibition would be accomplished even just by obligating us to eat matzah (at least on the first night, but likely as a positive value the rest of the holiday) and avoiding hametz foods. 

Finding and accepting taamei mitsvot, reasons for the commandments, is a delicate matter, carrying with it the danger that we will not just mistake the point of a practice, but that we will then build castles in the air of that mistake.  Kitniyot on Pesach offers one example of such a danger.

The Substitute Reason Eclipsing the Real One: The Case of Shavuot

 So does the declaration of Shavuot as the holiday of the Giving of the Torah.  As Magen Avraham pointed out hundreds of years ago, there are several problems with the liturgy (and Torah reading)’s connecting the holiday to Sinai.  Interestingly, the Mishnah does not mention reading of the Revelation at Sinai on Shavuot; it comes up as an אחרים אומרים, a second opinion, in the Gemara, Megillah 31a, which goes on to say that with two days of the holiday in Exile, we can read both selections. 

 Magen Avraham’s problem was that the Gemara’s identification of the sixth of Sivan with the day of Matan Torah adopts a view about the laws of Niddah that is at odds with our general practice. (He might also have noted that in times when we established the calendar by eyewitness testimony, the holiday could happen on the 5^th, 6^th, or 7^th of Sivan).   Magen Avraham suggests that our practice of those laws is actually a voluntary stringency, so that the Torah really was given on the sixth.  He may be right, but it is not the tenor of how we communicate those laws in their context—the waiting period of 3 full days is generally assumed to be the basic law, not a voluntary stringency. 

Further, and perhaps more important, the Torah itself never connects the event to the holiday. Rather—and it is the widespread forgetting of this aspect of the holiday that most bothers me—the Torah has its own reason for the holiday of Shavuot.  On Pesach, we offer the Omer, a grain offering that permits us to use the produce of the new harvest. In the Temple itself, we did not use that new produce until after offering the שתי הלחם, the two breads, on Shavuot, which also kicks off the bringing of bikkurim, first fruits.

We have not brought bikkurim in thousands of years, but the Mishnayot that describe the process make clear that this was a ceremony of huge importance. Instead of simply going as individuals to make their offering (as they would with other personal contributions to God and the Temple), people made sure to gather in groups and go to Jerusalem together, in parades, with music playing.  The arrival season in Jerusalem was also different than usual, the citizens of the city repeatedly stopping their work to welcome the pilgrims.

 At the Temple itself, the Torah prescribed a ritual conversation between the donating Jew and the receiving priest, whose content forms the backbone of our telling of the story of the Exodus on Pesach night.  Seven weeks after that night, in other words, we have a holiday whose central ceremony repeated much of the same content.  The bringing of bikkurim, too, was supposed to lead us to reminisce about the Exodus.

 Shavuot and Bikkurim as the Culmination of the Exodus

The explanation for why lies in the verse we do not repeat Seder night, ויביאנו אל המקום הזה, ויתן לנו את הארץ הזאת, ארץ זבת חלב ודבש, And He brought us to this place, and He gave us this land, a land flowing in milk and honey. The bikkurim ceremony, in other words, was the final confirmation that the promises of the Exodus had been fulfilled: not only did we leave Egypt, not only did we become God’s people, tasked with making God’s Presence known in the world by our observance of Torah and mitsvot, but we were given the land we were promised, a land that can and does support us when we are deserving of such bounty.

The holiday of Shavuot thus represents a culmination of Pesach (the reason the Mishnah refers to it as עצרת, a holdover) in at least two ways.  In the experience of new grain, Pesach was a holiday in which we first began using that grain in our own lives; seven weeks later we are ready to use that new grain in our Temple lives.  Secondly, Pesach was the holiday of the Exodus itself, Shavuot of the evidence of the completion of that Exodus in its fullest form—the establishment of a Temple, and a people bringing their produce to that Temple in celebration of God’s bounty in their lives.

Phrasing it that way also shows us why it had to change with the loss of that Temple: to continue to focus the holiday on the שתי הלחם, on the communal peace-offering we used to give, on the beginning of bikkurim season, would likely have been too painful to sustain throughout this long exile. 

Too, the focus on the Giving of the Torah is not completely different, since it focuses on a parallel way in which the Exodus was completed on Shavuot: God secured our physical and cultural freedom on Pesach and, on Shavuot, gave us the culture and way of life that would insure our true freedom, the freedom of Torah study and worship of God, into the future.  My problem, then, is not with why or how it came to be that we focus more on Shavuot as the holiday of the Giving of the Torah so much as its contributing to our losing sight of the fuller and more explicit message of the holiday.

In both instances, and in many others, the messages sent by Jewish tradition are both understandable and laudable but carry with them the danger of obscuring ideas that are both more central and more explicit in God’s communications of how we should structure our lives and our worship of Him.  Part of the message of Shavuot this year, I hope, will be a renewed awareness of the Torah as God gave it to us, the intentions that God put into that Torah, and a commitment to keeping it fully, with ikkar and tafel properly delineated, and each given the appropriate type of attention.

Redemption as Responsibility by Yuval Cherlow (39:3, Fall 2006)

On the Shoulders of a Giant:  Looking Back, Yet Looking Forward by Nathaniel Helfgot (39:3, Fall 2006)

The Love of Israel as a Factor in Halakhic Decision Making in the Works of Rabbi Benzion Uziel by Hayyim David Halevy (24:3, Spring 1989)

Arms Transfers, the State of Israel, and Halakha (24:3, Spring 1989) by Joseph Polak

The State of Israel:  A Torah Perspective by Aaron Soloveichik (25:2, Winter 1990)

The Centrality of Eretz Yisrael in Nachmanides by Aryeh Newman (10:1, Summer 1968)

Proto-Zionism and Its Proto-Herzl: The Philosophy and Efforts of Rabbi Zvi Hirsch Kalischer by Sam N. Lehman-Wilzig (16:1, Spring 1976)

- Shlomo Brody

This conflicted attitude is played out in the halakhic literature. True, the Tosefta[1] does speak of a situation in which a Jew, finding himself stuck at sea as Pesach approaches, transfers ownership of his chametz to a non-Jewish fellow traveler, and reclaims it after the holiday.  However, the impression is one of an unplanned, non-ideal, and isolated incident; the current reality, where entire communities plan in advance to preserve their stocks of chametz through annually scheduled arrangements with their local rabbi, appears to be a significant expansion of the depicted scenario.

A more commonly heard complaint is that the sale seems like a joke: the chametz does not leave the original owner’s residence (something some poskim insisted should happen[2]); the purchaser does not appear interested in actually taking possession of the chametz;[3] rarely if ever does the seller have to open his doors and cabinets to the new owner of his food; and the chametz invariably reverts to its original ownership immediately after Pesach.  

Rabbenu Yerucham[4], commenting on the Tosefta’s ruling, asserts that one who utilizes this option should not engage in ha’aramah (evasion of the halakhah). The Beit Yosef[5] questions this requirement: the entire plan, appears to be a ha’aramah, and yet, it is permitted!

Persistent Controversy

Controversy over the sale has persisted over the generations, despite its increasing usage, and while some of the objections focused on the more problem-fraught method of a rabbi purchasing his congregants’ chametz in order to sell it to a non-Jew[6], it is clear that some great rabbinic authorities[7] objected even to the more prevalent current practice, where the rabbi does not purchase the chametz but rather acts as an agent to sell it to the purchaser.[8]

The Bekhor Shor[9] asserts that mekhirat chametz is indeed a ha’aramah, and for that reason is ineffective against a biblical prohibition of owning chametz. He assumes, however, that the chametz at hand is only subject to a rabbinical prohibition, because, as the Talmud[10] states in the context of bedikat chametz, the bitul of chametz is effective to negate the Torah prohibition.[11]

However, many achronim[12] challenged that premise, noting that the chametz that is negated is not the same chametz as that which is sold, and thus a biblical prohibition would still attach; as such, one who would utilize mekhirat chametz must be comfortable that it is effective on a Torah level.[13]

Indeed, there are many who have adopted a policy not to sell chametz gamur, presumably reflecting a lack of confidence in the sale’s efficacy together with the assumption that the chametz in question is not batel.[14]  Nonetheless, the acceptance of mekhirat chametz in all forms is widespread, with Jews purchasing chametz knowing in advance it will be sold, and some poskim even considering the question of whether it should be an obligation to sell one’s chametz as part of the appropriate safeguards for Pesach.[15]

In Defense of Mechirat Chametz

Perhaps an explanation can be offered for the embrace by so much of observant Jewry of the embattled mekhirat chametz. It would begin by considering the prohibitions of bal yeraeh and bal yematze that the sale is meant to address. The Ran[16] asserts that these prohibitions serve as a kind of “syag min haTorah”[17]: in essence, the Torah is really primarily concerned that we should not eat chametz. However, if chametz is kept in one’s possession, there is a great risk that in a distracted moment, or in the course of a semi-awake midnight snack, one might prepare himself a meal of the normally-permitted chametz. To avoid this eventuality, all chametz must be removed from one’s possession.

By embracing mekhirat chametz, Klal Yisrael is declaring that there are two things that can prevent them from eating chametz: not having any, and the transgression of gezel. If the chametz is in one’s house, but is off-limits because of the prohibition of stealing, that is enough to keep the Jews away from its consumption. Therefore, it doesn’t matter whether or not the chametz will ever be picked up by its purchaser, or whether or not the sale will be reversed after Pesach. All that does matter is that during Pesach, the chametz legally belongs to another; that is enough to make sure it will be untouched. In other words, Klal Yisrael is willing to stake its “kareit” on its commitment to avoiding theft.

In this context, it is worth noting the words of the Semag[18] who states that the exile has gone on too long because of deficiencies in honesty and integrity in dealing with the nations of the world.  When that problem is present, redemption can not take place; it would be a chilul Hashem for G-d to redeem a nation that is perceived as immoral. As such, perhaps the practice of mekhirat chametz is a conscious decision, at a time when we focus on geulah, to enter into a monetary relationship with a non-Jewish person, and to honor the integrity of that relationship with one’s spiritual life. Such an attitude, taken with proper seriousness, might just bring the geulah, one step at a time.

[2] See Terumat HaDeshen 119 and Bach, OC 448, s.v. katav.

[3]See Machatzit HaShekel, O.C. 448:4; Responsa Chatam Sofer, YD 310; Responsa Li-Horot Natan, II, 27

[4] Netiv V, part V, 46a

[5] Orach Chaim  448:5

[6] See, for example, R. Uri Shraga Feivush Toubish, Reponsa Uri Vi-Yish’i, 121.

[7] See, for example, Responsa Shoel U’Meishiv, II, 2:77.

[8] On this distinction, see also R. Ya’akov Ariel, Resp. Bi-Ohalah Shel Torah, I, 59.

[9] Pesachim 21a

[10] Pesachim 10a.

[11] Others who accepted this premise include Ketzot HaChoshen, 194:4; R. Meshulam Igra, Responsa 39:1, and R. Natan Note Kahane, Resp. Divrei Rinanah, 30 (and see the extensive references in the footnotes, # 11, by R. Yitzchak Hershkowitz). See also R. Yitzchak Shmuel Shechter, Responsa Yashiv Yitzchak X, OC 9.

[12] See for example Mekor Chaim 448:9; see the lengthy analysis of Responsa Minchat Yitzchak, VIII:41.

[13] The Kogalglover Rav offers a creative explanation of the Bekhor Shor’s view in his Responsa Eretz Tzvi, I, 84.  

[14] See R. Asher Weiss, Haggadat Minchat Asher p. 280.

[15] See Responsa Li-Horot Natan VI, 25

[16] Pesachim 1a, s.v. u-mah. See Peri Megadim, Petichah to Pesach 1:9.

[17] See R. Yosef Engel, Lekach Tov, 8:1

[18] Mitzvot Aseh #73

 שולחן ערוך אורח חיים סימן תקמו סעיף ה

עושה אשה כל תכשיטיה במועד; כוחלת ופוקסת (פי’ מחלקת שערה לכאן ולכאן רש”י), ומעברת סרק על פניה, וטופלת עצמה בסיד וכיוצא בו; והוא שתוכל לסלקו במועד; ומעברת שער מבית השחי ומבית הערוה, בין ביד בין בכלי, ומעברת סכין על פדחתה

 תלמוד בבלי מסכת מועד קטן דף ט עמוד ב

ועושה אשה תכשיטיה

תנו רבנן: אלו הן תכשיטי נשים: כוחלת ופוקסת ומעבירה [שרק] על פניה ואיכא דאמרי מעברת סרק על פניה של מטה

רמב”ם הלכות יום טוב פרק ז הלכה כ

מותר ליטול שפה בחולו של מועד, וליטול צפרנים ואפילו בכלי, ומעברת האשה השיער מבית השחי ומבית הערוה בין ביד בין בכלי, ועושה כל תכשיטיה במועד, כוחלת ופוקסת ומעברת סרק על פניה וטופלת עצמה בסיד וכיוצא בו והוא שתוכל לקפלו במועד.

Men are forbidden to shave on chol hamoed, so as to ensure that they shave before the first yom Tov. According to Shulchan Arukh 546:5, however, women may do all cosmetic necessities on chol hamoed.  This general statement is followed by a list of specifics relating to makeup, hair arrangement, and hair removal, with the last being “she may draw a knife across her forehead”; this may refer to shaving eyebrows, but the use of “knife” rather than “razor” is anomalous, so there is a possibility that it refers to trimming bangs. 

            Shulchan Arukh is rooted in Mishnah Moed Kattan 8b and a beraita on Talmud Bavli Moed Kattan 9b, with one key difference being that the beraita’s language may imply that it is offering a comprehensive list of permitted cosmetics, whereas the Shulchan Arukh seems clearly to be providing only examples.  This may be a function of the other key differences, which are the inclusion of removal of underarm hair and the permission of drawing a knife across the forehead; the first comes from Rambam rather than directly from the Talmud that was in front of Beit Yosef, although it seems clear that the latter at least was in Rosh’s Talmud, and the former may have been in Rambam’s.  Regardless, no one’s Talmud text listed everything that Shulchan Arukh permitted.

            Shulchan Arukh, therefore, is compelled to read the list in the Talmud as non-comprehensive, and has no basis for assuming that his list is comprehensive.  Furthermore, it seems reasonable to assume that the cosmetic techniques of his time differed somewhat from those of the Talmud, and that he had no interest in banning the new techniques. 

            Nonetheless, it seems reasonable to argue that had he believed haircutting and head shaving to be permissible, that would have made the list.  This diyuk (deduction on the basis of close reading) is the basis for forbidding women’s haircutting on chol hamoed.  Mishnah Berurah, for example, writes:

(טז) ומעברת שער מבית השחי וכו’ – אבל מראשה אסור גילוח ותספורת בחוה”מ באשה כמו באיש [הגר"א ופמ"ג]:

Our purpose here is to decide whether this reading, and the authorities behind it, are dispositive. 

 Examining the Achronim:  Pri Megadim

Let’s look first at Pri Megadim.

פרי מגדים תקמו:ט

“ומעברת” –

עמ”א (כלומר שמעברת השער בסכין).

ומשמע לגלח ראשה אף באשה אסור בחה”מ כמו באיש,

אף על גב דל”ש בה נוול, דאדרבה שער באשה בראשה נוי,

ושער פדחתה מותר בסכין דקישוט הוא.

Pri Megadim suggests that the list of permitted activities specifically excludes headshaving, but concedes that he doesn’t understand why the prohibition should apply to women; after all, we should discourage women from shaving their heads before Yom Tov, rather than encouraging them.

            At first glance, Pri Megadim does indeed seem to support the prohibition.  However, more careful examination shows that he forbids headshaving but never mentions haircutting.  Why not?  There are three possibilities:

a)      He sees haircutting as identical with headshaving, and therefore feels no need to mention it

b)      He does not consider haircutting relevant to women

c)      He specifically intends to permit haircutting.

Of these, c) seems implausible, as if haircutting is permitted, the diyuk that headshaving is forbidden is undermined; and a) seems implausible, as if haircutting actually improves women’s appearance, and is forbidden, there is no mystery as to why the decree applies to them, with headshaving included within the decree as the equivalent of a bad haircut.  That leaves b) – but is it really plausible that Pri Megadim could not imagine women simply cutting their hair?  The answer to that is yes, as per the following Rosh.

רא”ש מסכת מועד קטן פרק ג סימן נג

תניא באבל רבתי (פ”ז): \כל ל’ יום אסור בתספורת אחד ראשו ואחד זקנו ואחד כל שער שיש בו ואשה מותרת בנטילת שער לאחר שבעה,

וגרסינן בפרק החולץ (דף מג א) בענין:

רבי יוסי אומר: כל הנשים יתארסו חוץ מן האלמנה מפני האיבול, וכמה איבול שלהן? שלשים יום. אמר רב חסדא: ק”ו – ומה במקום שאסור לכבס ולספר מותר לארס, שלשים יום של איבול שמותר לספר ולכבס, אינו דין שמותר לארס?

וש”מ שהאשה מותרת בנטילת שער כדקתני באבל רבתי, וכן כתב בה”ג דאשה מותרת בנטילת שער. וקשה לדברי האלפסי: דאי אשה מותרת בנטילת שער לאחר שבעה, דלמא שריא נמי בשבת של ט’ באב?!

ועוד, דנטילת שער שמתיר באבל רבתי באשה היינו ע”י טיפול סיד כדי שלא תתגנה על בעלה, ותספורת לא שייך להזכיר באשה דמגדלת שער כלילית!?

ועוד הקשה הרמב”ן ז”ל: דהל”ל שאסורה לספר ולכבס ומותרת ליארס, וגבי ל’ יום של איבול היה צריך להזכיר שמותרת לספר ולכבס, דתניא: “האשה מותרת בנטילת שער לאחר ז’”, שאין הדבר ידוע ופשוט כל כך להקשות סתם בלא הזכרת הברייתא!?

ורש”י לא גרס התם “לספר” אלא “לכבס”, והכי פירוש: שאסור לכבס שבת של ט’ באב, דאסורין ללבוש כלים מכובסים אפילו ישנים ואפילו אינם מגוהצים, ל’ של איבול, דאינם אסורים אלא בכלים חדשים מגוהצים,

וכן עיקר:

While the comparison to demonesses seems out of place, and in its original context does not seem intended to flatter, Rosh clearly states that women simply do not cut their hair, and therefore failure to mention that case proves nothing one way or the other.

            One might nonetheless argue that since Pri Megadim applies the decree against headshaving to women, it naturally extends to cover haircutting as well.  But this would be a misconception, I believe.  The Halakhah according to Pre Megadim, rather, is that the decree banning cosmetic procedures on chol hamoed never applies to women.  It is  precisely because headshaving detracts from their appearance that it can be applied to them, even though, as he concedes, it does so purely mechanically.  Thus I suggest, contrary to Mishnah Berurah, that there is at the least no evidence that Pre Megadim bans haircutting for women on chol hamoed.

Gra

            We move on, then, to the Gra

גר”א תקמו:ח

“ומעברת האשה שיער מבית השחי ומבית הערוה בין ביד בין בכלי” –

גירסת הרי”ף: “ומעברת סרק על פניה, וא”ד ומעברת סכין על פניה שלמטה”,

ובירושלמי שם: “נוטלת שערה וצפרניה ומעברת כלי על פניה.  א”ר יודן אבוי דר’ מתניה: בלשון נקי היא מתניתא”, ר”ל פניה שלמטה.

והאי “נוטלת שער” אינה תגלחת, מדל”ק “ומספרת” או “מגלחת”, אלא בגוף קאמר,

וכמ”ש תוספות במו”ק יח.

וכן פירשו המפרשים מ”ש באבל “והאשה מותרת בנטילת שער וכו’”.

אע”ג שהרמב”ם שם מתיר, היינו משום סוגיא דהחולץ שאמרו: “מה במקום שמותר וכו’”,

ועיין בטור יו”ד סי’ שצ,

אבל כאן, משום שלא יכנסו לרגל כשהן מנוולין, והך גזירה ג”כ באשה,

וא”א דקאי על בית הערוה – הא קאמר אח”כ “ומעברת וכו’”!  אלא על בית השחי,

ומדקאמר “ומעברת סכין” וקאמר “ונוטלת שערה וצפרניה”, מותר בין ביד בין בכלי כמש”ל סי’ תקלב וז”ש “בין וכו’”.
Unlike Pri Megadim, Gra explicitly forbids haircutting.  His evidence is the same diyuk.  However, Gra apparently sees the decree against haircutting as directly applicable to women; in other words, he knows of and forbids cosmetic haircutting for women on chol hamoed.  The questions remaining are the strength of his evidence and whether there are explicitly contrary authorities.

            A primary point here is that Gra is not primarily engaged in psak – rather, he is engaged to justify Shulchan Arukh’s permission to shave underarm hair.  He suggests that Shulchan Arukh reached this conclusion by process of elimination: the Talmud Yerushalmi permits נטילת שיער, and this cannot refer to head hair owing to the decree, and pubic hair is mentioned separately, so only underarm hair is left.

            Gra knows that Shulchan Arukh is only citing Rambam in this regard, however.  This makes his claim that נטילת שיער refers only to body hair weak, as while he cites Ashkenazic authorities who interpreted the phrase in that way regarding Sheloshim, Rambam himself permits women to cut their hair during shloshim.

            Tosafot Moed Kattan 18a does explicitly ban haircutting during Sheloshim, although it is hard to understand why the issue is discussed there in Tosafot, which is focused on nailcutting.  But Tosfot Yevamot 43a seems to permit, and in general the discussion there demonstrates that נטילת שיער is used to include haircutting.

            But while Gra’s evidence is weak, his authority stands.  

Aruch Ha-Shulchan

But here we turn to Arukh haShulchan:

ערוך השלחן תקמו”ז

ועושה אשה כל תכשיטיה לקישוט הפנים במועד, בין ילדה בין זקנה,

והיינו שכוחלת בצבע, וכן נותנת כחול בין עיניה כדי שתהן נאות, ופוקסת – והיינו מחלקת שערה לכאן ולכאן ומתקנת שערה חוץ לצעיף, ונותנת חוטין של בצק דק על פניה להאדים הבשר, ומעברת סרק על פניה, וטופלת עצמה בסיד וכיוצא בו להשיר השיער,

ודווקא שתוכל לסלקו להסיד במועד, דאז מקבלת תענוג מזה, דבשעה שהסיד על פניה מצטערת קצת, אך אח”כ שמחה היא לה, ולכן אם השמחה תהיה במועד מותר, ואם לאחר המועד אסור,

ומעברת שיער מבית השחי ומבית הערוה בין ביד בין בכלי, ומעברת השיער שעל פדחתה בסכין.

וכל אלו קשה לעשותן קודם המועד, שתקלקל,

ואפילו בלא זה א”א להחמיר על אשה בתכשיטיה, שכל שמחתה היא בתכשיטיה וזהו עונג יו”ט שלה,

אבל האיש אסור לו מיני תכשיטין במה שיש בהן מלאכה,

דגם בלא”ה אין לאיש להרבות בקישוטין ותכשיטין משום “”לא ילבש גבר שמלת אשה”, כמ”ש ביו”ד סי’ קפב.

Arukh HaShulchan seems to state that by definition the decree cannot apply to women, even with regard to cosmetic activities they could have completed before yom tov.  While he never mentions haircutting, it seems clear that he would permit it, and that he argues fundamentally with Gra.

            Finally we turn to Ritva.

ריטב”א מועד קטן דף ח עמוד ב

עושה אשה תכשיטיה במועד פי’ שזה צורך הגוף הוא וכעין אוכל נפש ולפיכך עושה כדרכה ובלא שינוי ובטירחא רבה ולא גזרו בה שמא תכנס לרגל מנוולת דקשוט מילתא דצריכא כל יומא ויומא הוא ועוד שאין דרכן להשהות

Ritva supports Arukh HaShulchan against Gra, let alone Magen Avrohom, by saying that the decree intentionally excluded women from its ambit.  It follows that Gra is a shitat yachid (minority position).  Furthermore, a rule of psak is that the authority of precedent is greatly diminished when new evidence is presented that was not available to the original decisors, and to my knowledge the Ritva was not available to the Gaon.  Accordingly, b’mechilat kvod the Gra and with trepidation, it seems to me that at least bish’at hadchak women may have haircuts on chol hamoed.

Meta-Halakhic Questions      

May women have their hair cut on chol hamoed?  On a technical halakhic level, I argue above that the answer is yes.  What I want to do here is discuss four metahalakhic questions relative to this specific issue.

            The first – and this is perhaps the safest topic we can choose to discuss this generally explosive question – is what sort of attitude we should have toward gender distinctions in Halakhah.  Here I must acknowledge that this framing – which assumes that gender distinctions constitute a discrete category, toward which a consistent attitude is appropriate – is borrowed from American constitutional law’s notion that various distinctions can be subjected  to loose, intermediate, or strict scrutiny.  But I think it offers a valuable tool to poskim, and I specifically favor subjecting potential Jew-Gentile distinctions in interpersonal halakhot to strict scrutiny.

            This cannot, however, be the case with regard to gender in Halakhah – there are simply too many areas in which the distinction is deeply ingrained, and others in which such distinctions flow inexorably from physical differences.  But there is nonetheless room for some form of scrutiny, especially when potential rulings seem to assume psychological or intellectual differences between men and women.

            The second question is whether we ought to evaluate potential gender distinctions primarily in terms of their outcomes or rather in terms of their reasoning.  What are we to do if the best way to reach the solution we see as most compatible with justice and with properly recognizing the tzelem Elokim in every human being is to utilize a legal rationale that seems sexist or even misogynist?

            For example: Some understandings of the exegetical basis for the exclusion of women from the obligation to procreate can easily be criticized as sexist: “It is the way of men to conquer, but not the way of women”.  To counter this critique, a posek might seek to play up the positions that see women as rabbinically obligated.  But a primary effect of the exemption is to prevent women from being halakhically coerced into procreative sex, and generally to give them halakahic control of their sexuality, and this effect can be undone by the position that they are rabbinically obligated.

            The third question is the extent to which we are willing to concede that past halakhot simply cannot be extended to current circumstances – the differences are just too great.  This issue presents differently with regard to d’oraita law, where we are committed to the position that the Torah’s Author foresaw all future circumstances and legislated accordingly, and d’rabbanan law, where we have no such theological commitment.  Thus, for example, Rav Moshe Feinstein takes the position that doing otherwise prohibited labor via preset electric timers often falls into a category of “appropriate to forbid but not actually forbidden”, on the ground that the Talmudic Rabbis were unaware of electricity and therefore could not have legislated regarding it.

            The fourth question is the extent to which we are willing to undo past authoritative rulings, especially those of Rav Yosef Karo in Shulchan Arukh, on the basis of our considerably larger-than-his library of the works of the rishonim and of variant manuscripts of all rabbinic texts.  The potentially destructive effects of allowing such overturning can be seen in halakhic civil law, where plaintiffs can succeed only if the defendant has no plausible defense.  A primary task of halakhic civil jurisprudence, therefore, is to eliminate positions from the discussion, and this the Shulchan Arukh accomplished admirably; the standard rule is that positions not mentioned in the Shulchan Arukh are halakhically irrelevant in civil matters.  And yet, it is hard to allow rulings that no longer accord with the weight of textual evidence to stand, especially when they seem to us to have deleterious consequences.

Meta-Halakhic Answers

            Let me give very brief answers to these questions, in reverse order, in the expectation that there will be many occasions to discuss them in more detail and depth in the future.

4)                     We should resist the temptation to establish a bright line in this area and argue that the Halakhah must be determined either by pure historical/interpretational truth, as we understand it, or else by pure halakhic process establishing irreversible precedent.  Rather, we should take the nuanced position that precedent generates significant but not infinite inertia, varying with its antiquity and the weight of the authorities who establish it, which can be overcome by some compelling combinations of contrary evidence, practical need, and moral intuition.

            In the case of women’s haircuts on chol hamoed, the weight of precedent seemed to me extremely weak and the contrary evidence quite strong.  I did not see a real issue of morality involved, and practical need would be a function of specific cases only.

3)         I think there are actually three positions possible here:

a)      Laws should be seen as inevitably extending to whatever new circumstances seem to present the same issues.

b)      Laws can only extend to circumstances that could plausibly be seen as having been conceived of when the law was made

c)      Laws may or may not be extended to cover new circumstances at the discretion of contemporary decisors, subject to the willingness of the community to follow them when they exercise that discretion.  In such cases, it should be evident, what are formally judicial decisions are in practice legislative acts.

I favor the last approach.  In the case of women’s haircutting, the question then became whether we should extend the decree made regarding men to women.  It seemed to me that this was probably extending the wrong rabbinic ray, that we should instead extend the exceptions for cosmetic bodyshaving and tweezing et. to this case

2)                     Here again we should avoid bright-line answers.  There are times, circumstances, and issues in which it is appropriate to focus on symbols; I cannot think of any non-extreme case, for example, in which I would pasken based on the sometime principle that “women’s wisdom is only with the shuttle” – maybe to be matir an agunah.  But as a general rule it is wiser to focus on results, although one must always recognize that the results of a halakhic ruling are not just the immediate case, but also all cases for which that case will become precedent.

                        In our case,  it is not clear to me that the presumption that women’s happiness often depends on their sense of their own appearance is sexist, although taking the extreme formulation of Arukh haShulchan that “their entire happiness is in their adornments” literally rather than hyperbolically might be sexist.  But I take it hyperbolically, and therefore am comfortable using Arukh haShulchan’s consequent ruling as precedent.

1)      I suggest that the standard should be that the proposed distinction has a purpose plausibly defensible in non-sexist terms and the proposed distinction should plausibly relate to genuine differences in the religious, political, social or other experience of men and women.  In this case, the desire to make women’s yom tov experience happier is certainly defensible in non-sexist terms, and I suggest that it plausible relates plausibly to the different norms and expectations governing male and female hair grooming and growth in our society.

Accordingly, I see no barrier to ruling permissively on this question

Chag kasher v’sameiach