I.

During the last half century the movement towards greater public, educational, economic, and political roles for women in general society has slowly  affected the reality of Jewish and more specifically, for our purposes, Orthodox society. This has created a sea change in the role of women in the Orthodox and especially Modern-Orthodox society. The universal access to growing levels of Torah education, the desire to play a more prominent role in synagogue life-both organizationally and spiritually, the quest for deeper connections to God and his service-avodat Hashem, the rise of feminism and a whole host of sociological factors have changed the landscape from anything our grandmothers and great grandmothers would have recognized as normative.

Together with many of these developments (which I, and I would guess most readers of this blog, believe have been extremely positive), vigorous debates (some more contentious, others less so) over this or that innovation or evolution have been part of the discussion both in rabbinic and lay circles. If we just made a random list of issues under this rubric that have emerged in the last 50 years we might include:

Advanced Institutional Talmud study for women beyond high school; bat mitzvot for girls both inside and outside the shul; women saying kaddish in shul; women’s hakafot on Simchat Torah; women speaking at a family simcha in public; taking the sefer Torah into the women’s section for the processional after hotza’at sefer Torah; women’s tefillah groups; women writing and publishing hiddushei Torah in Torah journals; women reading megillat Esther for other women; women reading megillat Esther for a mixed gender group; women speaking under the huppah at a wedding; women reading the ketubah at a wedding; including the  names of the matriarchs in the preamble to the text of the mi-shebeirakh for sick people on Shabbat, To’anot rabbaniyot in religious court proceedings, women serving on boards of shuls, yoetzot halakha in areas of Hilkhot Niddah, women serving a presidents of shuls, women receiving aliyot and reading the Torah in a mehitza minyan with 10 men, women serving on religious councils in Israel, women teaching Talmud in a co-ed school and the list goes on.

The latest round in this broader canvas of debates about the approach of modern Orthodoxy to the role of women in its ritual, educational, spiritual and communal life has focused on the issues of learned Orthodox women receiving some form of rabbinic ordination. This has been coupled with teasing out the appropriate parameters of women serving as spiritual leaders in synagogues, in some way equivalent to male rabbis (without that actual title being used).  Those in favor of pushing the frontiers forward on substance and titles have made it clear that they accept the limitations of the restrictions of normative halakha, such as women as not being able to lead the congregation in hazarat hashatz or serving as a witness for a kiddushin at a marriage ceremony.

However, beyond those restrictions, the question at the center is: Can Orthodox women serve as spiritual leaders of congregations and fulfill the pastoral, educational, organizational, moreh Horaah, and communal leadership roles that are the major part of the job description of the average Modern-Orthodox rabbi?

II. 

The purpose of this essay is to briefly examine two of the major halakhic issues that have been raised in opposition to such a move and their cogency. As in all matters of substance, before one can discuss any other factors to be examined, the committed Jew must explore the halakhic dimension of the issue.

  But first two caveats so that my viewpoint on this is crystal clear.

1. It is clear to me that many scholars and lay-people have strongly held views on the analysis of the halakhic material examined that runs counter to my general direction below. (See for example a more elaborate discussion of those views in R. J. David Bleich, Contemporary Halakhic Problems, Vol. 2, pgs. 254 and on [Ed Note:  See also this link ^[1].]). My point below is simply to outline the legitimacy of certain perspective, not to argue that it is accepted by all.

2. As I hope to demonstrate, I do not believe the major issue here is ultimately halakhic.  It rather touches more on very emotional, sociological and political self-definitions relating to what have been perceived for 30-40 years as “boundary” issues between Orthodoxy and non-Orthodox movements within Judaism.^{1 [2]}

 3.In addition, it touches on sensitive policy questions of how best to achieve legitimate evolutions within the halakhic body politic that will be sustained and widely accepted without causing undue divisiveness. My own view, which I have expressed elsewhere, is that taking into account the practical sociological-communal realities, a move perceived at ordaining women at the present moment is premature. It probably should wait for more learned women to take up para-clergy roles in shuls, schools and the community. This will eventually create a communal context for a richer, calmer discussion in future years. As time passes there will be more receptivity to opening up more to areas of spiritual leadership for women.

 4. At the same time, it is clear to me that other people of good will, sincerity, and great devotion to the Jewish people and Torah values can have differing views from mine. They sincerely contend that if there is no substantive halakhic problem that the time is now to forge ahead. My view is that such positions certainly do not render one “outside” of Orthodoxy or halakha, though I would disagree with the shikul haddat and decision in that direction.

III.

 

1. The most substantive halakhic argument generally put forward against women receiving some form of rabbinic ordination and serving as spiritual leaders in synagogues is the import of Maimonides’ famous ruling on serarah.  Maimonides, in Hilkhot Melakhim 1:5 maintains that not only are women excluded from serving as king in a halakhic state, but all positions of serarah-communal authority are barred to women. Many commentators have noted is that it is difficult to find an explicit source in our standard texts of midrashei halakha and Talmud for this far reaching position.[1] ^[3] Indeed, as many halakhic scholars of the past and present (e.g. Rabbi Moshe Feinstein, Igrot Moshe, YD II:44) have noted, Maimonides’ position seems to be rejected by a good number of rishonim and is not cited as normative halakha in subsequent halakhic codes such as the Shulhan Arukh.

 

2. If one were still to desire to be cognizant and careful to work within the parameters of Maimonides, it is still incumbent upon us to clarify what exactly is included under the rubric of serarah. Should it be understood broadly to refer to almost any communal position of authority or status, whether it involves an appointment by fiat or an elected position, as well as whether it involves coercive power or not? Many rabbinic scholars, especially amongst some of the aharonim have taken that expansive point of view. They, therefore, would feel that almost any appointment of communal authority should be barred to women. In this paradigm a woman serving as president of a shul or as a rabbi of a synagogue would raise halakhic problems.[2] ^[4]

      Other rabbinic scholars, however, have taken a much more limited reading of the Rambam and maintain that the definition of communal serarah (and thus the subsequent restriction) should be limited to those communal positions of authority that truly mimic the kingship model. In this paradigm only positions that are imposed on the populace with some absolute powers would fall under the Rambam’s categories of serarah. In this paradigm a rabbi of a synagogue who is hired by an election, and fired at the will of the congregation and board would clearly not fall into the category of some inappropriate position of authority even according to Maimonides. Other rabbinic scholars of note have also pointed to the concept of kaballah, of communal acceptance of a woman as obviating the restriction of the Rambam in the view of a number of rishonim. Many significant Modern-Orthodox poskim (though not all) have certainly taken that position over the last century on issues such as permitting women’s suffrage and election to serve in high office or as the president of a shul or a member of a religious council.  Indeed, to my knowledge, over the last decades a number of women have served in the position of president of their synagogues (a number affiliated with the Orthodox Union) without any formal objection.

       Mori verabi, Rav Aharon Lichtenstein, in a conversation with former students currently serving in the rabbinate and Jewish education, recently (December, 2009) discussed this halakhic issue. He pointedly noted that it is clear that the Dati-Leumi/Modern-Orthodox community and its rabbinic elite^{2 [5]} have clearly come down in favor of a more narrow reading of the Rambam’s restriction. He pointed to the fact that for the last two decades religious women have run as candidates of Dati-Leumi religious parties across the board, for Knesset, and some have served as members of parliament. In addition, a few have served as ministers in the coalition governments with the approval (despite an occasional rumble here and there) of the rabbinic leadership of those parties. These have included scholars such as R. Avraham Shapira zt”l, R. Mordechai Eliyahu (may he have a refuah shelimah), Rav Yaakov Ariel and others.^{3 [6]}

       R. Lichtenstein stated that clearly a member of parliament and certainly a government minister is often involved in coercive legislation or votes on budgets involving tens of millions of shekels or issues of war and peace. This position is clearly more of a serarah than any shul rabbi or president.  He thus felt that certainly in Israel, the Modern-Orthodox community has taken the position that the expansive reading of the Rambam, limiting women’s roles, is not the normative ruling.

IV.

 In this context, I would also add a question of halakhic methodology and consistency that needs to be examined in this (and many other halakhic) issue. There are many communal voices who despite the existence of opinions against the Rambam’s view or severely restricting its contemporary application take the position that we should be mahmir for the shitat ha-Rambam.

Here it has always struck me as odd why on this specific issue is the “Rambam’s position” the only one that should be entertained communally?

 There are many other opinions of the Rambam, some of them quite central to his world-view that much of the Orthodox community seems to have no problem in neutralizing or ignoring because other views exist.  In many cases the sociological realities pressed us to be lenient and to consider other countervailing factors and values.

For example:

A) Many of the communal rabbis or activists who authoritatively cite the Rambam on serarah do not hesitate to allow their communities to use the standard communal eruvin, both in their local neighborhoods and all over the world.  According to shitat ha-Rambam almost all our eruvin are not kosher as they have more than a ten amot gap between eruv posts.  This communal practice, approved by the rabbis, involves weekly instances of thousands upon thousands of acts of hillul Shabbat (albeit rabbinic in nature in most instances).

 B) Rambam maintains that receiving money for learning Torah is a violation of Hillul Hashem (the worst sin possible in the Rambam’s hierarchy of sin in Hilkhot Teshuvah).

Yet the Hareidi, Modern-Orthodox, Dati-Leumi, and Hardal worlds not only neutralize the binding nature of this Rambam, but trumpet the existence of various kollelim as the pinnacle of their educational infrastructure!

C) Rambam maintains that praying to angels or intermediaries is a violation of one of the thirteen  Principles of Faith for which one loses his or her portion in the World to Come and is defined as a heretic. Yet many communities in the Orthodox world, both Hareidi and Modern, continue to incorporate numerous passages in the liturgy of the synagogue that Rambam would say borders, if not outright violates, that principle. We are speaking here of a safeik de-oraita on a violation of a principle of faith-an ikkar of emunah. Yet, despite the gravity of the issue at stake there is no sense of being mahmir for the Rambam!.

There are myriads of more halakhic issues that one can cite but the point is clear.

In all these instances, of course, there are other rishonim who take issue with Rambam, or there are aharonim who limit the Rambam and attempt to show even he would agree in this or that situation (sometimes more convincingly, sometimes much less so). In many instances, aharonim attempt to show that because of pressing need or another countervailing Torah value we need to be lenient and not only look to Rambam as dispositive. In a word, through the give and take of halakha and the analysis of the social realities and religious needs of the community, this or that Rambam does not become the final word in the living, practicing reality of the committed community. Thus, the simple statement that “we should be mahmir for shitat ha-Rambam” is far from simple. The question has to be evaluated on a much broader canvas of the potential countervailing  legitimate Torah needs, halakhic values and spiritual directions (e.g la’asot nahat ruah lenashim, greater increase in avodat Hashem, enhancement of Orthodoxy and kevod shyamayim,) that may point us to look to other views besides the restrictive reading of a Rambam.

(I would like to make it clear that this “halakhic inconsistency’ is not limited to those of a more “conservative” –with a small c – bent. The same occurs in the more “liberal” parts of the community who on occasion cite this or that view of a Hareidi posek without being consistent to his viewpoints in other areas. This is not always out of bounds. My point is simply that the idea that we simply need to follow “the Rambam” in this or any case requires a lot more honest discussion.)

IV.

The second halakhic issue that has been raised in some quarters is the notion of hikkuey haminim-imitating, confirming, or somehow strengthening the heterodox movements in their convictions and practices. This position maintains that in parallel to the explicit Biblical prohibition of imitating gentile practices (upon which there exists great halakhic debate as to its parameters) there exists a similar type of prohibition in imitating practices that originate in Jewish communities who are heretical in nature. In its simplest form it has been formulated by one Israeli rabbi as the prohibition to engage in action that are “domeh lareformim,” appear to mimic the practices of the reformers.  

I will treat the issue here briefly, as there is much less discussion of it in halakhic literature in comparison to the issue we discussed above.

  The concept of hikkuy haminim does not explicitly appear as a full blown halakhic category until the writings of the poskim in the 19^th and 20^th century. As some of them confronted the innovations of the Reform and Conservative movements and attempted to guide the Orthodox community[3] ^[7], this issue was raised. One finds that mention of this category appears, often as one amongst a slew of reasons to oppose certain innovations in the Orthodox synagogue (it is rarely used alone), in the responsa of the Hatam Sofer, R. David Tzvi Hoffman, R. Yitzhak Herzog, and R. Yehiel Yaacov Weinberg, as well as in the more polemical writings of other rabbinical scholars.

1. First, it is far from clear if all rabbinic scholars even subscribe to the existence of this as a full fledged halakhic category. In many controversies surrounding various innovations throughout the last hundred years it is often not cited.
2. Secondly and more substantively, the problem with the use of this category (as has been candidly noted by some of its contemporary proponents) is the amorphous nature of the concept. It does not have clear–cut guidelines and parameters. If one examines the literature one discovers that this notion has been raised in the last two hundred years to forbid such phenomenon as rabbis speaking in the vernacular, bat mizvah ceremonies, use of organs in shuls during the weekdays, rabbis wearing canonical robes, male choirs in shuls and women’s tefillah groups. It is interesting to note that almost all of these innovations (excepting the organ) became quite accepted in Modern-Orthodox circles. They certainly have not caused synagogues and communities to be labeled non-Orthodox. And thus the use of this concept as a clear-cut halakhic proscription on women’s spiritual leadership is certainly open to question.

 

 Moreover, the notion of a formal “prohibition” in engaging in actions that confirm or support the heterodox in their innovations can easily yield differing conclusions entirely. For example, Rav Ovadyah Yosef in his famous responsum on the legitimacy of the Bat Mitzvah ceremony (Yabia Omer Vol. 6:29), does not cite the argument of hikkuy haminim directly to refute it. Instead he makes the following fascinating comment:

  “And in truth, preventing girls from celebrating bat mitzvah ceremonies, strengthens the hand of the sinners to complain against the scholars of Israel (hakhmei yisrael), (to say) that they oppress the daughters of Israel, and discriminate between boys and girls.”

 This argument actually serves as a counter weight to the notion that we are supporting the heterodox by imitating their practices.  In Rav Ovadyah’s analysis, in areas where the halakha does not prevent us from having equality of some type between the sexes, refusing to adopt that practice will be viewed as confirming the worst stereotypes about halakhic Judaism. One could easily see an argument in that direction for adopting semicha for women and women rabbis[4] ^[8]  being proffered.  This is an issue where one constantly hears that if in fact there is no other substantive halakhic proscription against the move, it seems to discriminate unfairly against women. It very quickly can move to a confirmation of the heterodox attack on Judaism and bring people closer to those camps. (This is similar to the argument that Rav Aharon Soloveitchik zt”l proffered in relation to his advocacy of women saying kaddish.)[5] ^[9]

As in so many of these other cases in which halakha, sociology, communal norms and comfort level mesh together, the issues will probably be decided on the ground by the committed community and its rabbinic leadership. It will not be decided by an ex-cathedra call to impose a highly amorphous category that has polemical weight and resonance but not the substantive halakhic force.                                                  

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[1] ^[10] Such a view is found in one version of the Sifrei discovered in the Cairo Geniza.

[2] ^[11] According to this line of thinking, converts also would be excluded from many positions of communal authority and the rabbinate as the same derasha Maimonides’ cites in relation to women appears in relation to converts. This logic has radical implications and does not seem to have ever been adopted in Jewish practice. Many communal rabbis and leaders over the centuries have been converts without any opposition.

It is interesting to note that the Young Israel movement, in a move two years ago, has startlingly taken the explicit position, in writing, that converts may not serve as rabbis of its constituent synagogues! If one adopts that position, one may also question the practice of rabbinical schools and yeshivot throughout the world to grant semicha-rabbinic ordination to converts who may not serve in the capacity of communal rabbi, one of the main occupations (certainly in Modern-Orthodox circles) for those who receive semicha. If one argues that despite converts not being able to serve as rabbis they still should be allowed to receive ordination, that logic should hold true for those who argue that women should not receive ordination because a number of the functions of the rabbi, such as serving on a beit din are closed to them.

[3] ^[12] A discussion far beyond the scope of this short essay is whether the entire terminology and halakhic categorization of minim in relation to contemporary heterodox movements is accepted by the entire swath of the Orthodox community and halakhic decisors.

[4] ^[13] If one was convinced that there were no other halakhic impediments. It seems obvious to me that Rav Ovadyah would not allow for the violation of a real halakhic prohibition for achieving this goal.

[5] ^[14] Just so that there is no misunderstanding:  I do not claim that this would be the position of Rav Ovadyah on women’s ordination. I simply have used his argument to show how someone might analyze the issue in that light.

1. This, I have found is especially true on a visceral level for people who grew up in Conservative homes and shuls and moved to Orthodoxy, in part, in reaction to the growing egalitarianism in that movement in the 1970-1990’s. [↩ ^[15]]
2. I would of course, included him in this category, though his modesty precluded him from mentioning himself in that vein [↩ ^[16]]
3. As a footnote, it should be noted that R. Lichtenstein’s own wife, Dr. Tovah Lichtenstein, ran for Knesset in 1988 as a candidate for the Meimad party headed then by Rav Yehdua Amital. [↩ ^[17]]

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