A Synagogue Employing a Lady in a Rabbinic Capacity

Be-chasdei Ha-Kadosh Barukh Hu, Yishtabach Shemo

Shalom C. Spira

1 Sivan, 5775

INTRODUCTION

I have been asked the halakhic question of whether a synagogue may employ a lady in a rabbinic capacity. Before offering any substantive comment, it seems to this student that an insightful philosophical approach to this topic has already been articulated by R. Aryeh Leib Baron, the late rosh yeshivah of Merkaz ha-Talmud in Montreal, Canada. Specifically, as testified by R. Baron’s disciple Dr. Paul Cohen, a lady once asked R. Baron why she could not be ordained as a rabbi. R. Baron answered “you are overqualified”.1 It would seem to this writer that the meaning of R. Baron’s response is as follows: The Torah recognizes that the righteous ladies of Israel are spiritual leaders who represent the true heroes of Jewish history and Jewish destiny.2 Included within this recognition is the teaching of the gemara in Niddah 45b that ladies are endowed with superior understanding.3 Thus, there is no need to ordain ladies as rabbis per se, for every Jewish lady is already ordained from Heaven.4

1 This testimony was first provided by Dr. Cohen approximately thirteen or fourteen years ago, when R. Baron was still alive. At my request, the testimony was reconfirmed by Dr. Cohen as accurate in a conversation between himself and myself on May 18, 2013 (after R. Baron had already ascended to the Heavenly Academy).

2 See the many sources to this effect on pp. 102-105 of this student’s essay “The Quest for an Effective Synagogue Partition Plan,” <http://www.scribd.com/doc/168693341/Synagogue-Partition>.

3 Indeed, the same message may be attributed to the gemara in Kiddushin 49b which states “Ten volumetric units of conversation descended into the world/universe; nine were taken by ladies, and the rest by the balance of the world/universe.” Since the faculty of speech represents “the power of the soul” [-see R. J. David Bleich, Bioethical Dilemmas II (Targum Press, 2006), p. 16, and accompanying endnote 37 in that treatise], it emerges that the “power of the soul” of ladies outshines that of the balance of the world/universe by a ratio of nine to one.

In the opinion of this student, the foregoing is not contradicted by the gemara in Yoma 66b, where Rabbi Eliezer expounds upon Exodus 35:25 to mean that ein chokhmah la-ishah ela bi-flakh (a lady’s wisdom is manifest through textile creativity). As R. Ben-Zion Meir Chai Uziel, Mishpetei Uziel, Choshen Mishpat no. 6, sec. 1, s.v. al ha-rishonah cogently observes, it is impossible to interpret Rabbi Eliezer’s remarks as an insult, because [in addition to the obvious biblical interdiction against verbal insult bespoken by Bava Metzi‘a 58b], the gemara actually begins by submitting “sha’alah ishah chakhamah et Rabbi Eliezer”, leaving no doubt that the lady with whom Rabbi Eliezer was speaking was actually endowed with wisdom. Rather, it seems to this student that ein chokhmah la-ishah ela bi-flakh should be interpreted as a praise to the righteous ladies of Israel, viz. that unlike the gentlemen who foolishly squandered their wisdom on constructing a false golden calf, by contradistinction the righteous ladies appropriately dedicated their wisdom to the mitzvah mission of building the Mishkan, a mitzvah mission which required extraordinary textile creativity. [Hence, in context, Rabbi Eliezer was telling a lady who consulted him about the differential punishments that were imposed upon the worshippers of the golden calf that she need not worry that such punishments would ever have any relevance to her or to her fellow ladies in the House of Jacob.]

4 When this interpretation was suggested to Dr. Cohen in our more recent conversation (referenced supra, note 1), he agreed that it potentially captures the true meaning of R. Baron’s words.

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Having been informed by the illuminating philosophy of R. Baron, we can now turn to the substantive halakhic question at hand. Since a number of erudite responsa have already been published on the topic, these materials will first be reviewed.

A. SURVEY OF PUBLISHED RESPONSA

Shulchan Arukh Choshen Mishpat 7:4 disqualifies a lady from serving as a judge on a Beth Din. However, Birkei Yosef (se‘if katan 12) authorizes a sagacious lady to serve as a halakhic decisor in a non-judicial capacity.

As a matter of practical interest, the matter remained largely dormant until it was revived by an obiter dictum of R. Aharon Feldman in his article entitled “Halakhic Feminism or Feminist Halakha?” (Tradition 33:2, Winter 1999). On p. 65 of that article, R. Feldman comments that “Another [essay in the book that I am reviewing5] is only obliquely halakhic, presenting sources

See also Rashi to Ketubot 36b, s.v. u-mar’ot le-iman, who writes that mothers are “poskot” to their daughters when training their daughters in the laws the latter need to know prior to marriage. [Rashi, in context, refers to deciding whether the daughter is a betulah, so as to determine the value of money that should be inscribed in the daughter’s ketubah.] This Rashi would seem to bespeak R. Baron’s message, viz. that ladies are ordained from Heaven to transmit from mother-to-daughter the Oral Torah heritage that has been traditionally transmitted from mother to daughter since the Revelation at Mount Sinai.

5 Referring to Chanah Henkin, “Women and the Issuing of Halakhic Rulings,” published in Jewish Legal Writings by Women (Micah D. Halpern and Chana Safrai, eds.), Jerusalem: Urim Publications, 1998, pp. 278-287.

Mrs. Henkin relies on the aforementioned Birkei Yosef, as well as its citation by Pit’chei Teshuvah (se‘if katan 5), to authorize ladies to render halakhic decisions. Mrs. Henkin proceeds to write: “This position, I want to stress, is non-controversial. Nowhere within the Rishonim or the Acharonim is there an opinion that the Halakha prohibits in principle the issuing of a halakhic ruling by a woman.” Mrs. Henkin also notes that the midrash (Bamidbar Rabbah 10:17) quotes Samson’s father Manoah as describing ladies as not being “bnot hora’ah” (persons capable of rendering halakhic decisions), but she dismisses that reference because (a) Manoah was referring to testimony rather than halakhic decision-making; (b) Manoah was an ignoramus and (c) if Manoah was referring to halakhic decision-making, then Manoah’s evaluation is not corroborated by any other rabbinic source.

This student would respectfully challenge Mrs. Henkin’s three arguments negating the Manoah episode as a proof on the question of ordaining ladies. Regarding (a), ladies are actually accepted as witnesses on matters of ritual permission and prohibition, as indicated by Tosafot to Pesachim 4b, s.v. heimnuhu rabbanan bi-de-rabbanan. Perhaps, then, Manoah – in remarking that ladies are not “bnot hora’ah” – was referring to halakhic decision-making regarding the details of Nezirut Shimshon [which he had now heard from his wife was to be conferred upon their future son]. Regarding (b), while it is true that the gemara in Eruvin 18b initially posits a hypothesis that Manoah was an ignoramus, the gemara proceeds to reject that hypothesis. And regarding (c), Mrs. Henkin’s supposition that there is no other rabbinic source which excludes ladies from rendering halakhic decisions will be respectfully challenged in Section B of the present essay.

Now, it is true that the midrash immediately proceeds to comment that the angel [to whom Manoah had remarked that ladies are not bnot hora’ah] told Manoah to listen to his wife, with the express intent of honouring Manoah’s wife and of endearing Manoah’s wife to Manoah. Clearly, this repost of the angel to Manoah serves to repudiate Manoah’s original remarks. Nevertheless, one might counter-argue based on R. Ovadiah Yosef, Shu”t Yabi‘a Omer I, Orach Chaim no. 41, who demonstrates that we cannot accept halakhic rulings from angels. If so, the angel’s repudiation of Manoah may be halakhically meaningless. [And even though Manoah himself consulted with the angel for guidance, this is because – at that time – Manoah did not yet realize that his interlocutor was an angel, as Scripture testifies in Judges 13:16, 21. Rather, Manoah thought he was speaking with a prophet. And although a prophet (other than Mosheh Rabbeinu) is forbidden to render a halakhic decision by way of prophecy, a prophet who is also a rabbinic sage may render halakhic decisions in a non-prophetic manner. Thus, perhaps Manoah thought that this “prophet” was a rabbinic sage, with whom he was now consulting for halakhic guidance.]

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which indicate that women who have attained the proper expertise in Jewish law have the authority to offer rulings – a view to which there is no reason for anyone to take exception, provided the expertise is genuine.” This obiter dictum of R. Feldman is quite significant because – paradoxical to the entire traditionalist approach that R. Feldman champions in his article – the obiter dictum potentially concedes that women can indeed be ordained as rabbis.

Accordingly, it did not take long for R. Nathaniel Helfgot to notice this paradox, and he sent a letter to the editor (Tradition 34:1, Spring 2000) asking that if such is the Halakhah, then Orthodox rabbinical seminaries should be established for ladies. This prompted R. Feldman to respond to R. Helfgot (ibid.) by greatly limiting his willingness (virtually to the point of non-existence) of countenancing ordination of women. R. Feldman’s stringent approach was subsequently criticized by R. Joel Wolowelsky, “Rabbis, Rebbetzins, and Halakhic Advisors” (Tradition 36:4, Winter 2002), which prompted R. Feldman to respond with a letter to the editor (Tradition 37:2, Summer 2003), which further prompted R. Wolowelsky to counter-respond (ibid.).

R. Feldman’s thesis is that – pursuant to the prohibition against a father teaching his daughter Oral Torah, as codified in Rambam (Hilkhot Talmud Torah 1:13) and Shulchan Arukh (Yoreh De‘ah 246:6) – most ladies lack the ability to analyze Torah she-be-al Peh and hence lack the ability to serve as rabbis. The exceptions to this rule are so few and far between that it would be inappropriate to establish a semikhah program for ladies. [Rather, R. Feldman presumably holds that a lady can only serve as a halakhic decisor when a universal consensus has developed among the Sages of Israel that this particular lady is an extraordinary exception to the rule.] R. Wolowelsky’s essential rejoinder is that this is not what Rambam and Shulchan Arukh mean. Rather, Rambam and Shulchan Arukh prohibit a father from coercing his daughter to study Torah she-be-al Peh in a social milieu where such coercion would be pedagogically harmful to the daughter. But when a lady desires of her own independent volition to study Torah she-be-al Peh, and she demonstrates her proficiency to the same level that gentlemen must demonstrate to earn semikhah, then it is certainly appropriate to ordain the woman. Since no student (man or woman) is ever coerced to enter a semikhah program nowadays, but instead students enter as a result of their own personal interest and as a consequence of demonstrating their own personal talent, R. Wolowelsky believes that R. Feldman’s objection is moot.6 R. Wolowelsky

Ergo, the halakhah should follow Manoah (to exclude ladies from the rabbinate) and not the angel (to include ladies within the rabbinate)!

On the countervailing side, perhaps the fact that the midrash approvingly records the angel’s repudiation of Manoah means that the Sages who recorded the midrash agreed with the angel’s evaluation, not because of the angel’s statement per se (which is halakhically inadmissible as evidence according to Yabi‘a Omer) but because the angel’s declaration corresponds with an oral tradition that the Sages (who recorded the midrash) independently received, viz. an oral tradition to include ladies within the rabbinate. The matter requires further analysis, and so this student will not draw any definitive conclusion from the midrash.

In any event, Mrs. Henkin deserves congratulations for cogently bringing to light this midrash and its interface with the question of whether ladies can be ordained.

6 In a lecture delivered in 2004 to Yeshiva University’s Azrieli Graduate School of Jewish Education and Administration (at which this student was privileged to be attending as a summer student), R. Jeffrey R. Woolf added a consideration that apparently vindicates R. Wolowelsky. Namely, R. Woolf points to Rambam, Hilkhot Yesodei ha-Torah 4:13, who writes that every lady as well as every gentlemen is capable of comprehending the Oral Torah as it applies to practical Halakhah (-represented by the disputes of Abaye and Rava). Thus, surmises R. Woolf, Rambam’s alternate remarks (in Hilkhot Talmud Torah 1:13) prohibiting a father from teaching his daughter

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substantiates his rejoinder by citing Encyclopedia Talmudit and Shu”t Binyan Av I, no. 65 (of R. Eliyahu Bakshi Doron), who – based on the aforementioned Birkei Yosef – authorize a woman to serve as a halakhic decisor. R. Wolowelsky argues that in our era, where women have achieved prominence in all the professions, there is no reason to hinder them from entering the rabbinate.

Subsequently, in 2004, R. Efraim Greenblatt (author of Shu”t Rivevot Efraim) was invited by R. Joshua H. Shmidman, rosh yeshivah of Noam ha-Torah (Montreal, Canada) to deliver an examination to his students. R. Greenblatt asked his deputy R. Yuval Noff to serve as his representative in delivering the examination, and also to present the Montreal students with a list of exhortations how a rabbi must behave.7 Later that year, the entire list was published jointly by R. Greenblatt and R. Noff in their co-authored book Rivevot ve-Yovlot, Vol. 1 (Memphis, Tennessee, 2004), pp. 441-458, including an exhortation which seems to prohibit a synagogue from employing a woman as a rabbi.8

Oral Torah must only have been intended in the sense that a father may not coerce his daughter to study Oral Torah, since the Sages of the Talmud understood this to be pedagogically harmful.

Although, in context, R. Woolf articulates his thesis only to the extent of allowing a lady to study Talmud [when she is motivated by her own volunteer effort], R. Daniel Sperber (in a 2009 responsum, cited infra, note 9) adapts R. Woolf’s thesis as a basis to even authorize a lady to render halakhic decisions, affirming precisely what R. Wolowelsky had originally argued.

[Cf. R. Yitzchak Zilberstein, Chashukei Chemed al Mesekhet Megillah (5767), p. 202, who quotes his brother-in-law R. Chaim Kanievsky as positing that it is only “we” (i.e. the gentlemen) who are prohibited from teaching a lady to study Oral Torah, but the lady who volunteers on her own to study Oral Torah may do so.]

Actually, one might argue that a balancing of the two conflicting statements of Rambam (Hilkhot Yesodei ha-Torah 4:13 vs. Hilkhot Talmud Torah 1:13) is already contained explicitly in Shulchan Arukh Yoreh De‘ah 246:6, since immediately after Shulchan Arukh codifies the prohibition against a father teaching his daughter Oral Torah, Rema adds that a lady is obligated to study practical Halakhah. Accordingly, the entire debate between R. Feldman vs. R. Wolowelsky can be recapitulated as follows. All agree that a lady is obligated to study practical Halakhah. All agree that a father is forbidden to coerce his daughter to study the academic realms of Oral Torah. The ultimate debate between R. Feldman and R. Wolowelsky is whether a lady who volunteers to study the academic realms of Oral Torah can then be trusted to apply those teachings to the rendering of practical halakhic decisions.

7 This student was privileged to be among those present.

8 On p. 458, Rivevot ve-Yovlot calls upon the students of R. Shmidman to sanctify the Name of Heaven by rectifying the following problematic types of communities: those without a synagogue partition, those without a day school, those without a mikveh, those without a mesader kiddushin, those without domestic peace, those without a mohel, those without a Sabbath-observant ba‘al korei, those where the rabbi is a lady [-emphasis added by this student (Shalom C. Spira)], those where the ba‘al korei is a lady, those where Shabbat candles are not lit by ladies, those where congregants do not attend synagogue on a weekly basis, those where gentlemen do not don tefillin on a daily basis.

Although no particular source is cited in that context to substantiate this prohibition (of a lady serving as rabbi), the same cryptic remark (excluding ladies from the rabbinate) appears in an earlier and unrelated chapter in Rivevot ve-Yovlot, pp. 415-423. In the earlier chapter, Rivevot ve-Yovlot addresses why Rema to Shulchan Arukh Yoreh De‘ah 1:1 records a custom for a lady not to serve as a ritual slaughterer. Rivevot ve-Yovlot suggests that ritual slaughter requires shimush talmidei chakhamim (prolonged interaction with Torah scholars, through which one learns how to apply the Oral Torah in practical situations) on the part of the apprentice, and that – based on the comments of Rashi to Sotah 21b, s.v. ke-ilu and Sotah 22a, s.v. ve-lo shimesh talmidei chakhamim – such apprenticeship is not typically compatible with the female personality. Rivevot ve-Yovlot proceeds to add that the philosophical reason behind the biblical exclusion of ladies from writing a Torah scroll is that “whoever is not obligated in the matter cannot discharge the obligation of the public” (mishnah in Rosh ha-Shanah 29a). Since ladies are not obligated in the mitzvah de-oraita of Torah study (see infra, note 11), the Torah excludes ladies from serving as the secretaries for the official vehicle of Torah study, claims Rivevot ve-Yovlot. Finally, Rivevot ve-Yovlot

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Subsequently, in 2009, several significant analyses were published on the subject of ordaining ladies as rabbis. On the one hand, the Hebrew Institute of Riverdale (in Bronx, New York) celebrated the ordination of a sagacious lady, at which event the newly composed responsa of R. Yoel Bin-Nun, R. Daniel Sperber and R. Joshua Maroof were distributed, all arguing based on the aforementioned Birkei Yosef [and its citation in Pit’chei Teshuvah] that such ordination is authorized by Torah law.9 On the other hand, that same year R. Menasheh Klein published Shu”t Mishneh Halakhot XVII, which contains a responsum (no. 92) devoted to women’s prayer groups, that – as an obiter dictum – critiques the idea of employing women as rabbis on the grounds that such employment will render the women’s husbands less available to study Torah, which is undesirable because it represents a skewed allocation of scarce resources.10

Namely, since the husband (and not the wife) is obligated to study Torah [as per the gemara in Kiddushin 29b11], and since obligatory fulfillment of a mitzvah is greater than voluntary

concludes the entire discussion with the cryptic remark (p. 423) that ladies should not serve as rabbis, seemingly indicating that one [or perhaps both] of the above two considerations (viz. incompatibility of shimush talmidei chakhamim with the female personality and/or lack of mitzvah de-oraita for ladies to learn Torah) explains the exclusion of ladies from the rabbinate. If it is the former reason, then Rivevot ve-Yovlot is following the approach of R. Feldman presented supra, note 6, which is challenged by R. Wolowelsky. If it is the latter reason, then Rivevot ve-Yovlot appears to be hinting to the Nov. 27, 2010 approach of R. Mordechai Willig, which will be presented infra, note 31. 9 The package of responsa is available at <http://www.jofa.org/sites/default/files/uploaded_documents/responsa_on_ordination_of_women.pdf>.

10 This is because, claims R. Klein, the spiritual leadership functions traditionally assumed by the matriarch of the home in raising a family (e.g. preparing meals) will de facto be shifted to the husband, hindering the husband from being able to study Torah.

11 Although, as explained supra, note 6, a lady is indeed obligated to study practical Halakhah, the gentleman’s obligation to study Torah is more encompassing, including practical Halakhah as well as the academic realms of Torah. This is because a Jewish gentleman is commanded by the Torah to study Torah; this mitzvah encompasses all dimensions of Torah study. By contradistinction, a Jewish lady is exempted by the Torah from studying Torah (as per the gemara in Kiddushin 29b), yet [in addition to her prerogative to praiseworthily volunteer to fulfill the mitzvah de-oraita of studying Torah, much the same way as she may praiseworthily volunteer to fulfill the mitzvot of shofar, sukkah and lulav,] she is commanded by the rabbis to study Torah in those dimensions of Torah study that will practically enable her to fulfill the mitzvot according to Halakhah. E.g. she needs to be proficient in the practical laws of Shabbat in order for her to successfully observe Shabbat, etc.

Somewhat complicating the above differential prescription of Torah study obligation is the occasion of Hak’hel, where ladies as well as gentlemen are obligated as a mitzvah de-oraita to attend the public reading of the Torah. Even so, the mitzvah of Hak’hel applies on Sukkot once in seven years, and even then only when the Temple exists. By contradistinction, every day of every year, whether or not the Temple exists, gentlemen are obligated as a mitzvah de-oraita to study Torah. [On the other hand, Hak’hel is indeed cited by the poskim in the context of the rabbinic prohibition against a father coercing his daughter to study Oral Torah (referenced supra, note 6). Namely, the reason the Sages did not impose such a parallel rabbinic prohibition against a father coercing his daughter to study Written Torah is because they did not want to contradict that which the Torah specifically obligated at Hak’hel (during the Temple era) once in seven years. That consideration, however, does not detract from the cogency of R. Klein’s argument. Although there is no rabbinic prohibition against coercing one’s daughter to study Written Torah (-and this is inspired by Hak’hel), it remains the case that there is no mitzvah de-oraita obligating a lady to study Written Torah on a daily basis, either. (And all the more so there is no mitzvah de-oraita obligating a lady to study Oral Torah on a daily basis.)] And see the exchange between R. Shlomo Zalman Auerbach and R. Ovadiah Yosef, published in the latter’s Shu”t Yabi‘a Omer IX, Orach Chaim no. 11, which confirms this analysis (in the context of ladies reciting birkot ha-Torah).

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fulfillment of a mitzvah (as per the gemara in Bava Kamma 87a), it is the husband’s learning which should be prioritized.12 Also that year, R. Gil Student published Posts Along the Way (Yashar Books), containing a list of reasons (pp. 95-105) auguring against ordaining ladies,13 but which – paradoxically – also professes (op. cit., p. 100):

“I see no reason why a woman cannot rule on halachic matters to those who ask her, even if others will ignore her rulings… Certifying an advanced melamedes [scholarly lady who teaches] is entirely uncontroversial. Regarding a posekes [scholarly lady who renders halakhic decisions], though, the question remains whether this is a confirmation of the non-Orthodox and, therefore, should be delayed to a generation that does not have the same recent past as ours.”14

Subsequently, in 2010, the Agudath Israel of America and Rabbinical Council of America (RCA) both issued statements indicating that an Orthodox synagogue cannot employ a lady as a rabbi, even in a non-judicial capacity. Without citing any specific textual source, the

12 Although first published in 2009, this responsum of R. Klein was actually originally composed in 1986, and is addressed to R. Dov Frimer, one of the co-authors of the article “Women’s Prayer Groups” published in Tradition 32:2 (Winter 1998). The 1998 article references the (then as-of-yet unpublished) manuscript of R. Klein in endnote 64. [It should be emphasized that the question of women’s prayer groups and the question of woman rabbis represent two distinct halakhic subjects (although there may be some overlapping concepts to both questions). The issue of woman rabbis is being raised by R. Klein purely as an obiter dictum.]

13 These reasons include the problems of granting ladies serarah (a position of authority, which according to Rambam, Hilkhot Melakhim 1:5 is denied to ladies), deviation from the minhag that contemporary semikhah is patterned to follow the original semikhah granted to members of Mosheh Rabbeinu’s Sanhedrin (and hence cannot be granted to ladies, pursuant to Shulchan Arukh Choshen Mishpat 7:4), communal unity considerations, and the prohibition against confirming the heterodox.

Regarding this last item, R. Hershel Schachter, “Preserving our Mesorah in Changing Times” (Jewish Action, Winter 5771), reports that R. Joseph Ber Soloveitchik derived the halakhic obligation to avoid emulating heterodox practices from Tosafot to Chullin 41a. [Actually, the reference would appear to be Rashi to Chullin 41a, s.v. aval oseh guma.] R. Student, “The Adoption of Heterodox Practices” [Posts Along the Way, pp. 109-127], cites earlier decisors, beginning with R. Moshe Sofer in his Teshuvot Chatam Sofer, Vol. 1 no. 27, who rule the same way. An even earlier authority ruled likewise: R. Ezekiel Landau in his Teshuvot Noda bi-Yehudah, Mahadura Kamma, Choshen Mishpat no. 16 (final paragraph).

14 In the present writer’s opinion, while R. Student’s contribution to this topic is valuable, his specific assertion that “I see no reason why a woman cannot rule on halachic matters to those who ask her, even if others will ignore her rulings” is problematic. If a lady’s halakhic ruling is legitimate, then it represents an element of the Oral Torah, which every Jew is obligated to honour and respect. No Jew has the right to ignore any element of the Oral Torah, and thus no Jew has the right to ignore any halakhic ruling. Either we must decide that ladies are authorized to render halakhic decisions, or we must decide that ladies are entrusted with a different type of mitzvah mission role by the Holy One, blessed be He. There cannot be an intermediate position of authorization for ladies to rule but with the caveat that some Jews enjoy the right to ignore the lady’s rulings.

In fairness to R. Student (who is a tzaddik gammur), his entertained notion [that it is possible for some to voluntarily ignore the rulings of a female rabbi] is supported by the words of R. Isaac Herzog. See infra, note 48. Even so, it seems to this writer that R. Herzog himself never substantiates this notion, and so the question is merely shifted from R. Student to R. Herzog.

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Agudath Israel of America invokes “mesorah”, while the RCA similarly invokes “commitment to sacred continuity”.15

Subsequently, Hakirah (Vol. 11, Spring 2011) published competing analyses from R. Hershel Schachter on the one hand,16 and R. Michael J. Broyde and R. Shlomo M. Brody on the other,17 regarding ordination of ladies as rabbis. R. Schachter prohibits ladies’ ordination because he regards the rabbinate as serarah (occupying a position of authority, which Rambam, Hilkhot Melakhim 1:5 denies to ladies); because the minhag is to pattern contemporary semikhah based on the judicial semikhah that Mosheh Rabbeinu gave to members of his Sanhedrin (-and judicial semikhah can only be given to gentlemen, as per Shulchan Arukh Choshen Mishpat 7:4); and because of the prohibition against emulating the heterodox. R. Broyde and Brody challenge all of R. Schachter’s premises, and are inclined to tentatively authorize ordination of ladies in principle.18 However, due to public policy/communal unity/practical rabbinics meta-issues, R. 15 The full text of the statements of both organizations have been collated into one document available at <http://www.hakirah.org/vol%2011%20rca%20agudah.pdf>

16 R. Schachter’s article is available at <http://www.hakirah.org/Vol%2011%20Schachter.pdf>

17 R. Broyde and R. Brody’s jointly written article is available at <http://www.hakirah.org/Vol%2011%20Broyde.pdf>

18 One semantic error in R. Broyde and R. Brody’s (otherwise outstanding and tour de force) article which requires correction is the following opening sentence: “In the second half of the twentieth century, the halakhic community has confronted several new intellectual challenges [sic] to the structure of Jewish law”. This sentence is absolutely mistaken, since a fundamental principle of Orthodox Judaism is that the structure of Jewish law was revealed by the Omniscient Creator to Mosheh Rabbeinu at Mount Sinai. Thus, there can never be any “intellectual challenges” [sic] to the structure of Jewish law, since the Holy One, blessed be He, Who is the Master of all intellectual achievement, is the Architect of Jewish law.

Still, it is contextually clear that this semantic error in R. Broyde and R. Brody’s article represents an inadvertent oversight on the part of the distinguished authors, and it is the humble privilege of this student to presently honour the distinguished authors (who are tzaddikim gemurim) by rectifying the inadvertent oversight with the publication of the present footnote. [Cf. Iggerot Mosheh, Yoreh De‘ah III, no 88, where R. Moshe Feinstein similarly writes that the greatest honour one can grant the Chazon Ish is to rectify the (exceedingly seldom) mistakes that he rendered.] Certainly, the general message that R. Broyde and R. Brody convey in the opening section of their article, viz. what they poetically term “unity without uniformity; diversity without divisiveness”, appears well supported by the sentiments expressed by R. Moshe Feinstein, Iggerot Mosheh, Orach Chaim IV, no. 25.

It seems to this student that another correction from which R. Broyde and R. Brody’s (otherwise outstanding and tour de force) article would benefit relates to the obiter dictum on p. 38, which states “Parenthetically, we expect the number of gerim with semikhah will greatly increase in the coming generations, as many children will undergo Orthodox conversion because their mother originally did not receive a halakhic conversion.” This obiter dictum presupposes that there will be many kosher conversions in the coming generations. Yet, it seems to this student that such there should be no automatic guarantee that future applicants to conversion will ever be accepted. After all, “we do not accepts converts in the messianic era” (Yevamot 24b), and since (pursuant to the gemara in Eruvin 43a-b) Jewish law recognizes the realistic possibility that the messianic era could arrive on any weekday, one cannot presuppose that there will be any significant number of kosher conversions performed in the future. Moreover, as R. Broyde himself demonstrates in his excellent article devoted to the laws of conversion at <http://www.judaismconversion.org/Something_Old,_Something_New.html>, a certain benchmark standard of accepting the yoke of commandments is required for a conversion to be valid. There is no guarantee that any particular Noahide will ever sincerely undertake to meet that benchmark standard (-and, for that matter, Noahides are not required to convert to Judaism altogether; rather, the Torah summons Noahides to be righteous by observing the Noahide Code). Only a Beth Din acting on a case-by-case basis can determine whether a Noahide applying for conversion has met the benchmark standard of accepting the yoke of commandments. Given this reality, it seems to this student that no Beth Din should attempt to guarantee in advance how many valid conversions

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Broyde and R. Brody further argue that the time is not yet right for woman rabbis. Thus, while R. Broyde and R. Brody refute R. Schachter in theory, they concur with him in practice for the time being.19

Subsequently, Hakirah (Vol. 12, Fall 2011, pp. 18-19) featured an exchange between R. Nathaniel Helfgot and the editors. Writing in his capacity as a board member of the International Rabbinic Fellowship, R. Helfgot reports that his organization has issued a highly nuanced position on the question of ordaining ladies as rabbis.20 The editors – while thanking R. Helfgot for the information – respond that such nuance is surprising, since it contradicts “every major posek of our time.”

Subsequently, in 2013, the RCA reiterated its opposition to ordination of ladies, [this time apparently emulating the phraseology of the Agudath Israel of America] by characterizing such ordination “as a violation of our mesorah (tradition)…. that contradicts the norms of our community.”21 R. Avraham Gordimer claimed that the RCA approach represents “the uniform consensus of top poskim throughout the world”.22 R. Mordechai Bulua further argued that employing a lady as a synagogue rabbi would potentially create problems vis-à-vis the obligation of a synagogue partition.23 On the other hand, R. Avraham Weiss responded to the RCA by submitting that the “mesorah” factor is counterbalanced by the consideration that makom hinichu

(if any) will occur in the future. It is precisely for this reason that R. Menasheh Klein, Shu”t Mishneh Halakhot XVII, no.18, reports that Chazon Ish opposed the creation of batei din whose sole function is to process conversions. Chazon Ish reportedly feared that the very existence of such batei din would prejudice in advance the conclusion that a certain number of applicants to conversion will be accepted.{To that effect, this student finds a parallelism in R. Moshe David Tendler’s annual hilkhot gerut lectures at RIETS, where R. Tendler announces that he declines to serve on any Beth Din performing a conversion (except for the case of conversion of an adopted baby), given the complexity of the task in our era of ascertaining that a Noahide is willing to sincerely accept the yoke of commandments. Similarly, R. J. David Bleich, in his lecture recorded at <http://www.yutorah.org/lectures/lecture.cfm/733609/Rabbi_Dr_J_David_Bleich/Tikun_Olam:_A_Jew's_Responsiblity_to_Society>, has announced that he declines to serve on any Beth Din performing a conversion [-and, in his case, even in the case of an adopted baby. The only distinction between R. Tendler and R. Bleich concerns conversion of an adopted baby, and this is because there is a debate between them whether the validity of an infant conversion depends on the mitzvah-observance of the adopting parents. See R. Bleich’s Be-Netivot ha-Halakhah II (KTAV Publishing, 1998), pp. 185-187; idem. III (KTAV Publishing, 2000), p. 223; and idem. IV (HaDaF Typesetting, 2010), p. 193.]}

19 Interestingly, it is not clear from R. Broyde and R. Brody’s article whether they were actually aware at the time of its composition that they would be responding to R. Schachter. The fact that they never mention R. Schachter by name as their interlocutor seems to indicate that they were not. In any event, the issue would be further revisited in Hakirah Vol. 12 (Fall 2012), by which time R. Broyde and R. Brody were obviously aware of their interlocutor. Namely, pp. 15-18 of the latter volume features a debate between R. Abraham Kelman vs. R. Broyde and R. Brody, where R. Broyde and R. Brody maintain their position. [And see further in the main text for recapitulation of another related exchange in Hakirah Vol. 12]

20 Parenthetically, although not directly referenced by R. Helfgot, it seems to this student that his approach is consistent with his earlier letter published in Tradition 34:1 (Spring 2000), discussed in the third paragraph of the present section of this essay.

21 <http://www.rabbis.org/news/article.cfm?id=105753>

22 <http://www.yutorah.org/lectures/lecture.cfm/795123/Rabbi_Avraham_Gordimer/Ordaining_Women_and_the_Role_of_Mesorah>

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li avotai le-hitgader bo (viz. there is room for innovation within the parameters of the Oral Torah, as per the gemara in Chullin 7a). R. Weiss affirms that pursuant to R. Bakshi Doron’s [earlier mentioned] responsum authorizing ordination of ladies, it is entirely appropriate to establish an Orthodox rabbinical seminary to ordain ladies.24 Similarly, R. David Wolkenfeld remonstrated that ordination of ladies, while novel, represents a legitimate form of novelty analogous to the Chassidut that Ba‘al Shem Tov introduced, to the delivery of Torah lectures in the vernacular and/or to the practice of many Orthodox Jewish gentlemen to groom themselves presentably with a (kosher) electric shaver.25

B. ANALYSIS OF BIRKEI YOSEF

We have seen in Section A that Birkei Yosef [as well as its citation by Pit’chei Teshuvah] is invoked by many writers26 as a proof to authorize ladies to render (in a non-judicial capacity) halakhic decisions. Birkei Yosef arrives at this conclusion on the basis of two considerations:

23 Canadian Jewish News, May 30, 2013 (Montreal edition), p. 12. R. Bulua invokes Iggerot Mosheh, Orach Chaim IV, no. 70, sec. 5, where R. Moshe Feinstein is consulted whether a synagogue rabbi may authorize a lady to enter the gentlemen’s sanctuary during prayers in order to read an English translation of the liturgy for the pedagogical benefit of the congregants. R. Feinstein responds that “it is obvious that it is forbidden, and it is astonishing that an Orthodox rabbi would do so. Behold, you write that the Ga’on R. Jacob Isaac Ruderman told you that it is forbidden, and it is obvious and clear that it is forbidden…”

Actually, as discussed in this student’s “The Quest for an Effective Synagogue Partition Plan” (referenced supra, note 2; see, especially, section B of that treatise), there are contradictory opinions among the poskim (and even among the writings of R. Feinstein himself) whether indeed this is the halakhah. Nevertheless, it seems to this student that (as concluded in the final paragraph of Section E of the treatise), considerations of safek de-oraita le-chumra require stringency. [See also footnote 62 there (in Section E of that treatise), where it is explained that, notwithstanding the foregoing, a lady who is a healthcare professional (such as a physician, nurse or paramedic) may respond to a lifesaving medical emergency in the gentlemen’s section in the middle of prayer services, and the prayer services may even continue while she does so.]

Of course, R. Bulua’s synagogue partition argument is technically separate from the issue of ordaining ladies as rabbis. In theory, if R. Bulua’s objection represented the only cogent objection to ordination of ladies, it could be resolved by simply insisting that a lady rabbi always remain in the ladies’ section of the synagogue during services. For that matter, even R. Wolowelsky’s Winter 2002 contribution (referenced earlier in this section of the essay), which indeed advocates rabbinic ordination of ladies, has cautioned that the lady must not enter the gentlemen’s section during prayer services.

24 <http://www.yctorah.org/content/view/823/17/>

25 <http://morethodoxy.org/2013/06/25/orthodox-women-rabbis-a-response-to-the-blogosphere-and-a-hope-for-the-future/>

26 In chronological order: Encyclopedia Talmudit, R. Bakshi Doron, Mrs. Henkin, R. Wolowelsky, R. Bin-Nun, R. Sperber and R. Maroof. [It is also evidently the basis for R. Broyde and R. Brody’s joint analysis cited supra, note 17, as well as R. Weiss’ analysis cited supra, note 24, since they invoke R. Bakshi Doron.] Moreover, even R. Aharon Feldman [who discourages/opposes ordination of ladies, as one may infer from his responses to Mrs. Henkin and R. Wolowelsky, as well as his signature on the Agudath Israel 2010 statement] never explicitly challenges the invocation of Birkei Yosef.

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(i) The mishnah in Niddah 49b declares that anyone who is qualified to judge is also qualified to serve as a witness. Tosafot (Yevamot 45b, Gittin 88b, Bava Kamma 15a, Shevu‘ot 29b, and Niddah 50a) question that this rule seems inconsistent with the fact that Deborah the Prophetess served as the chief judge of the Jewish People (as apparently described by Judges 4:4), even though ladies are biblically disqualified to serve as witnesses [pursuant to the gemara in Shevu‘ot 30a]. Tosafot offer four answers to this question throughout their comments on the Talmud. One of the four answers is that Deborah did not serve as a judge altogether, but would rather teach the laws to the gentleman judges of Israel. It is the gentlemen who would then sit in judgement on actual cases. Thus, Deborah avoided the halakhic disqualification of ladies as judges by her serving “behind the scenes” as the master teacher of the gentleman judges.27 Birkei Yosef infers from this that a lady can serve as a halakhic decisor in a non-judicial capacity.

(ii) Sefer ha-Chinukh, mitzvah 83, rules that ladies are disqualified to serve as judges. Yet, in mitzvah 152, Chinukh rules that the biblical prohibition against a sage rendering a halakhic decision while intoxicated applies to sagacious ladies as well as to sagacious gentlemen, since sagacious ladies can also render halakhic decisions. Thus, infers Birkei Yosef, although a lady cannot render a halakhic decision in a judicial capacity (as per Chinukh, mitzvah 83), she evidently can render a halakhic decision in a non-judicial capacity, and it is to this that Chinukh (mitzvah 152) refers.

Yet, it seems to this student that this Birkei Yosef is disputed, as one can infer from the continuation of Pit’chei Teshuvah. Namely, after citing Birkei Yosef, Pit’chei Teshivah proceeds to record the contradictory opinion of Sha‘arei Teshuvah to Shulchan Arukh Orach Chaim 461, se‘if katan 17. In context, Sha’arei Teshuvah writes that a lady may not issue a halakhic decision as to whether a particular piece of matzah has become nefuchah (volumetrically inflated, and hence prohibited for consumption on Pesach). Pit’chei Teshuvah apparently understands this to represent a general rejection of Birkei Yosef’s authorization of a lady to render halakhic decisions.28 27 The other three answers of Tosafot are:

(1) Ladies are in fact qualified to serve as judges. The mishnah in Niddah 49b is only describing the Halakhah insofar as it applies to gentlemen.

(2) Although ladies are disqualified to serve as judges, Deborah the Prophetess served as an ad hoc judge by prophetic decree. [The ad hoc instructions that a bona fide prophet receives (hora’at sha’ah) override all commandments of the Torah (except for the interdiction against idolatry), as per the gemara in Sanhedrin 90a.]

(3) Although ladies are disqualified to serve as judges, litigants can accept upon themselves in advance – as a binding dispute resolution arbitration agreement – a disqualified judge. Thus, Judges 4:4 means to communicate that Jewish litigants routinely selected Deborah the Prophetess as their arbitrator.[Answer (1) listed by the present footnote is rejected by Shulchan Arukh Choshen Mishpat 7:4, which disqualifies ladies as judges. For further discussion of all four answers of Tosafot, see R. Yosef Ben-Arza, Yosef Da‘at commentary to Niddah 49b.]

28 R. Moshe Mendel Sklars, Chayei Mosheh al Shulchan Arukh Yoreh De‘ah, Vol. 1 (Bnei Brak, 5755), p. 97, footnote 32, correctly recognizes the opposition of Sha‘arei Teshuvah to Birkei Yosef. [Indeed, this student is indebted to R. Sklars for highlighting the debate between Birkei Yosef and Sha‘arei Teshuvah in the first place.]

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Surprisingly, Encyclopedia Talmudit misconstrues the meaning of Pit’chei Teshuvah, erroneously claiming that Pit’chei Teshuvah simply endorses Birkei Yosef, when in fact Pit’chei Teshuvah cites the conflicting opinions of Birkei Yosef and Sha‘arei Teshuvah without deciding between them.29 As for Binyan Av I, no. 65, he overlooks Pit’chei Teshuvah altogether. [In all fairness to Binyan Av, though, the author appears to have rectified this omission in a more recent responsum. Namely, in Shu”t Binyan Av V, no. 17 (published in 5769), R. Bakshi Doron discourages the establishment of women’s prayer groups in Beth Jacob schools, because – he argues – when the students graduate from the Beth Jacob school system, they will develop “inappropriate aspirations… to change the order of creation, and seek a position in Keri’at ha-Torah, in participation in the community, in singing and in dancing, and the like.” Arguably, R. Bakshi Doron, with his “participation in the community” comment, appears to have now reconsidered his previous recommendation that ladies be ordained as rabbis.30]

Curiously, in the main text on the page which refers to the footnote, R. Sklars writes “a lady is disqualified to judge, but is permitted to render a halakhic decision.” Yet, in the opinion of this student, this appears to be an oversimplification in the main text on R. Sklars’ part, since his footnote recognizes that Birkei Yosef’s ruling is opposed by Sha’arei Teshuvah.

In his book’s appendix (entitled Hosafot u-Milu’im), R. Sklars supplements the material on p. 97 by pointing to the introduction to Drishah [written by Drishah’s son], which records Drishah’s wife two novel insights regarding lighting Yom Tov candles. R. Sklars also points to Shakh to Yoreh De‘ah 326, se‘if katan 4, which records Shakh’s mother’s practice in how to separate challah. However, to this student, those two references represent a non sequitur regarding the question addressed by the present essay as to whether a lady can actually render a halakhic decision. In both the case of Drishah’s wife and Shakh’s mother, other people [being gentlemen who were ordained as rabbis] evaluated the insights of the lady in question, and through methods of Oral Torah, those gentlemen concluded that the insight of the lady was correct in each particular instance. This is not the same as declaring that a lady is authorized to render a halakhic ruling. To wit: the gemara in Berakhot 32b records the interpretation of a Noahide government minister as to the meaning of Deuteronomy 4:9. That interpretation is then codified as normative by Rambam, Hilkhot Rotze’ach 11:4. [R. Bleich, Bioethical Dilemmas II, p. 115, emphasizes that there is apparently no other source for Rambam’s ruling than the Noahide government minister’s interpretation.] Yet, it is universally agreed that a Noahide, no matter how learned he is in Torah study, is disqualified to render a halakhic decision. Mutatis mutandis, the fact that the insights of Drishah’s wife and Shakh’s mother are cited by poskim does not prove that ladies themselves can render a halakhic decision. Rather, the question of whether a lady is entitled to render a halakhic decision is ultimately subject to debate between Birkei Yosef and Sha‘arei Teshuvah.

29 And see R. Yehudah Herzl Henkin, Teshuvot Bnei Vanim II, no. 7 (final gloss), who lists a series of mistakes found in the Encyclopedia Talmudit, and then proceeds to comment: “Therefore it is a mitzvah to publicize that one should not rely on anthologies or summaries for halakhah le-ma‘aseh, until one investigates the source of the matter.”

Paradoxically, R. Henkin himself duplicates this mistake in his subsequently published Teshuvot Bnei Vanim III, no. 12 (p. 44), where he cites Birkei Yosef without dissent. [In all fairness to R. Henkin, though, the context of this latter responsum is not for purposes of ordaining ladies, but for the more traditional purpose of teaching Torah to ladies.]

Of course, this does not detract from Encyclopedia Talmudit or Bnei Vanim, whose authors are tzaddikim gemurim, and whose scholarly accomplishments represent a great treasure, even if there are some rare errors that must be corrected. [Cf. Iggerot Mosheh, Yoreh De‘ah III, no 88, where R. Moshe Feinstein similarly writes that the greatest honour one can grant the Chazon Ish is to rectify the (exceedingly seldom) mistakes that he rendered.]

30 Although, as already observed supra, note 12, the questions of women’s prayer groups and of woman rabbis represent two distinct halakhic topics, R. Bakshi Doron appears to have tangentially linked them in the latest responsum with his “participation in the community” comment. Obviously, the best manner to verify whether this interpretation of R. Bakshi Doron’s latest responsum is accurate would be to forward him a copy of the present essay.

11

Sha‘arei Teshuvah himself never mentions Birkei Yosef, nor does he explain why he prohibits a lady from rendering a halakhic decision. However, in a 2010 lecture, R. Mordechai Willig [while himself oblivious to both Birkei Yosef as well as Sha‘arei Teshuvah], suggests a source from the Rishonim why a lady might not be authorized to render a halakhic decision.31 Namely, R. Moshe Isserles, in his Darkei Mosheh commentary on Tur Yoreh De‘ah 127, se‘if katan 2, cites three Rishonim [Ran, Semag and Issur ve-Heter] as positing that a lady cannot be trusted to rectify a doubtfully prohibited foodstuff where there are reasons to be lenient, since a lady’s “knowledge is light”.32 The position of these three Rishonim is canonized as halakhah by R. Isserles in his Rema gloss to Shulchan Arukh Yoreh De‘ah 127:3.

R. Willig explains that when these three Rishonim speak of a lady’s knowledge being “light,” it means that the lady is not obligated in the mitzvah of Torah study, as per the gemara in Kiddushin 29b.33 It is true that a lady may volunteer to fulfill the mitzvah of Torah study, and that she is praised for doing so, but the reward she will receive for her learning is not as great as that of a gentleman, since obligatory fulfillment of a mitzvah is greater than voluntary fulfillment of a mitzvah (as per the gemara in Bava Kamma 87a).34 Therefore, these three Rishonim believe that the ladies’ Torah knowledge is “light” [presumably meaning that it is not as accompanied by the same level of Providence as that which accompanies a gentleman’s learning], which results in the consequence that Halakhah does not entrust a lady with the responsibility of rectifying a prohibition which requires weighing lenient considerations against stringent considerations. Ergo, argues R. Willig, these same three Rishonim hold that Halakhah does not entrust a lady with the responsibility of rendering a halakhic decision, since – by definition – every halakhic decision requires weighing lenient considerations against stringent considerations.35

It seems to this student that the approach of R. Willig can be appreciated in light of three sources which speak of halakhic decision making as the product of Providence that assists the rabbi who renders the decision. [Thus, R. Willig believes that only one who is obligated in Torah study (viz. a gentleman), and who therefore receives the full measure of reward for studying Torah, can be entrusted to receive the full level of Providence necessary to render a halakhic decision.] Firstly, Shiltei ha-Gibborim [commentary to Mordekhai, Tractate Shabbat36], writes as follows:

31 Lecture of Nov. 27, 2010, recorded at <http://www.yutorah.org/lectures/lecture.cfm/753159/Rabbi_Mordechai_I_Willig/Women_in_Halacha_#3:_Tefilah> , first 23 minutes of lecture.

32 The source for the statement that a lady’s “knowledge is light” is the gemara in Shabbat 33b and Kiddushin 80b.

33 See supra, note 11, and accompanying text.

34 Indeed, this principle of inequality in ladies’ and gentlemen’s respective reward for learning Torah is canonized by Rambam (Hilkhot Talmud Torah 1:13) and Shulchan Arukh (Yoreh De‘ah 246:6).

35 R. Willig acknowledges that his analysis is inspired by Dr. Avraham Weinroth, Feminism ve-Yahadut (Yedioth Acharonoth Books and Chemed Books, 2001), p. 54.

36 Beginning of ch. 2, p. 140 of Mordekhai to Shabbat in standard Vilna Shas, last two lines of page.

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“ ‘For you will illuminate my candle, and Ha-Shem will brighten my darkness’ [Psalms 18:29] -- This refers to the study of Torah. When a person is occupied with the study of Torah for its own sake, the Holy One, blessed be He brightens his [i.e. the person’s] darkness, that he should not come to the hands of sin and that he should not render a decision in Torah against Halakhah. And therefore Scripture says ‘Ve-hagita bo’ [Joshua 1:8], a language of nogah [brightness]. When the Holy One, blessed be He, sees that the heart of a person is for the sake of Heaven, even though there is not in his [i.e. the person’s] heart the ability to know the depth of Halakhah, the Holy One, blessed be He, brightens his [i.e. the person’s] words that there should not emerge from his mouth a decision against Halakhah.”

Secondly, R. Moshe Sofer, Shu”t Chatam Sofer, Even ha-Ezer II, s.v. le-zeh ani omer, writes: “And it emerges that the words of our master R. Joseph Karo in his two books [Kessef Mishneh and Beit Yosef] are accurate in its place, and if perhaps the rabbi Beit Yosef did not intend for this [consciously], nevertheless [the Creator] caused to come to him, to sweeten the language of his writing quill, such that that righteous man be saved from that mistake. For such are the ways of the Giver of the Torah, may His Name be blessed, with all those who are occupied with His Torah for its own sake, to hide under the language of their quill, [granting them] salvation from our mistakes.”

Thirdly, R. Yissachar Dov Babad, Otzar Yad ha-Chaim no. 487, writes: “That which they say in the name of the Noda bi-Yehudah, that when they ask a [halakhic] question which actually occurred, on this there is Heavenly Providence [for the rabbi] to render in accordance with Halakhah, but if they ask to test [the rabbi] on a [hypothetical] question like this, there is no Heavenly Providence and it is possible [for the rabbi] to err. [Indeed,] I have found such [as corroboration to the oral teaching imputed to Noda bi-Yehudah] in the Yerushalmi, Sanhedrin ch. 3, [regarding what] Rabbi Chiya the son of Rav asked in the presence of Rabbi Yochanan.37”

Indeed, in a 2013 lecture, R. Hershel Schachter suggests that this same message (viz. the message of Shiltei ha-Gibborim, Chatam Sofer and Otzar Yad ha-Chaim that halakhic decision making is the product of Providence that assists the rabbi in reaching the conclusion) is communicated by an aggadic passage in the gemara, Sanhedrin 93b, which declares “’And Ha-Shem is with him’ [I Samuel 16:18]; this means that the halakhah follows him in every case.”38

The analysis of R. Willig, then, would presumably explain Sha‘arei Teshuvah’s position that halakhic decision making is limited to gentlemen.39

37 R. Sklars (op. cit., p. 213) observes that the reference in Yerushalmi Sanhedrin ch. 3 is to the end of halakhah 9.

38 Lecture on May 12, 2013, recorded at <http://www.torahweb.org/audioFrameset.html#audio=rsch_051213> , at 40 minutes into the lecture.

39 To that effect, the analysis of R. Willig addresses R. Wolowelsky’s valuable argument (presented in Section A above) that just as ladies have mastered all the secular professions, so too should ladies master the rabbinate. R. Willig’s analysis claims that there is a key distinction between the secular professions and the rabbinate. The secular

13

On the other hand, how would Sha‘arei Teshuvah respond to Birkei Yosef’s two proofs?

Regarding proof (i), one can simply answer [on behalf of Sha‘arei Teshuvah] that the solution of Tosafot that Deborah the Prophetess taught the gentlemen the laws (and hence that a lady is qualified to render halakhic decisions, as Birkei Yosef infers), is only one of four solutions that Tosafot present. Not all of the other three solutions in Tosafot necessarily agree with this concept.40 Thus, the dispute between Birkei Yosef and Sha‘arei Teshuvah may ultimately be reflected in the disagreement among the four solutions of Tosafot.

Proof (ii), however, is stronger, since it is clear that Chinukh unequivocally authorizes a lady to render a halakhic decision. Sha ‘arei Teshuvah would presumably have to answer that he subscribes to the three Rishonim referenced by Darkei Mosheh (viz. Ran, Semag and Issur ve-Heter) who apparently dispute Chinukh, and who hold that a lady may not render a halakhic decision.

Another source on this topic is Minchat Chinukh (mitzvah no. 78, final paragraph), who independently rules that a lady is authorized to render a halakhic decision in a non-judicial

professions are exclusively dependent on personal competence. Since ladies are as personally competent as gentlemen – and in fact are far superior to gentlemen in personal competence (as per the gemara in Niddah 45b that ladies are endowed from Heaven with superior understanding) – society has chosen wisely to admit ladies to all the secular professions, and we can celebrate the achievements of ladies in all these fields. The rabbinate, by contradistinction, depends on halakhic decision making, which – according to Ran, Semag and Issur ve-Heter – requires Heavenly assistance that is granted to those who are specifically obligated in the mitzvah de-oraita of Torah study. For reasons shrouded in Heavenly mystery, Heaven has decided that only gentlemen are obligated in the mitzvah de-oraita of Torah study. [As R. Moshe Feinstein, Iggerot Mosheh, Orach Chaim IV, no. 49 astutely observes, no amount of human political effort can change the reality of women’s exemption from the mitzvah de-oraita of Torah study, because no human being has the capacity to contradict the decree of the Holy One, blessed be He.]

40 To be sure, as described supra, note 27, one of the alternate three solutions of Tosafot actually validates ladies as judges. [If so, ladies can certainly render halakhic decisions even on non-judicial occasions]. However, this solution is rejected by Shulchan Arukh Choshen Mishpat 7:4, and so need not be considered for practical purposes. [Additionally, as noted by R. Yona Reiss, lecture of March 19, 2013, recorded at <http://www.yutorah.org/lectures/lecture.cfm/791993/Rabbi_Yona_Reiss/Women's_Leadership_Roles_in_the_Modern_Age:_A_Halakhic_and_Hashkafic_Analysis>, at 26:00 into the recording, Sifrei to Deuteronomy 1:13 rejects the possibility of a lady serving as a judge.] On the other hand, the other two solutions of Tosafot described supra, note 27 (viz. Deborah judged by ad hoc prophetic decree, or Deborah was voluntarily accepted as an arbitrator) may theoretically hold that a lady cannot deliver a halakhic decision (even in a non-judicial context), precisely as Sha‘arei Teshuvah holds. Thus, one cannot claim that all four solutions of Tosafot contradict Sha‘arei Teshuvah. [Namely, even if Deborah was voluntarily accepted as an arbitrator, this does not mean she rendered any halakhic decision. As R. Mordechai Willig, in his lecture of March 12, 2011, recorded at <http://www.yutorah.org/lectures/lecture.cfm/761209/Rabbi_Mordechai_I_Willig/Women_in_Halacha_#16:_Women_in_Positions_of_Authority_&_Future_Challenges_>, comments (first four minutes of lecture), a Noahide can also be invited to serve as an arbitrator. {N.B. This permission for two Jewish litigants to voluntarily accept themselves in advance an arbitrator who happens to be a Noahide must not be confused with the prohibition against Jews proceeding to a Noahide arbitrator who functions under a system of secular law. See R. J. David Bleich, Contemporary Halakhic Problems V (Targum Press, 2005), pp. 21-25.} Yet, all agree that a Noahide, no matter how learned in Torah, is not authorized to render a halakhic decision. Thus, the fact that Deborah served as an arbitrator does not necessarily prove that a lady is authorized to render halakhic decisions.]

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capacity.41 Minchat Chinukh claims that the proof toward this conclusion is Deborah. Evidently, without citing Birkei Yosef by name, Minchat Chinukh follows Birkei Yosef’s understanding of Deborah, but we have already seen [even if never mentioned by Minchat Chinukh] that it is also possible to alternately explain Deborah in harmony with Rema and Sha‘arei Teshuvah. Leaving that aside, it is also logical to surmise that Minchat Chinukh – being, of course, a commentary on Chinukh – was persuaded by Chinukh’s unequivocal ruling (mitzvah 152) that a lady may render a halakhic decision.

A further source on this topic is R. Yisrael Yehoshua Trunk, Yeshu‘ot Yisrael commentary to Shulchan Arukh Choshen Mishpat no. 7, Chukat ha-Mishpat, se‘if katan 1. R. Trunk is bothered how the talmudic Sages named Shemayah and Avtalyon – who were converts – could serve on the Sanhedrin, when a convert is disqualified for such a role. R. Trunk answers that just as Tosafot [in the same answer emphasized by both Birkei Yosef and Minchat Chinukh] explain that Deborah taught the gentlemen judges how to rule, so too could Shemayah and Avtalyon have done the same. Evidently, while R. Trunk never indicates so explicitly, the fact that he regards this particular answer of Tosafot to be normative [as distinct from the other answers of Tosafot regarding Deborah] implicitly demonstrates that he would authorize a lady to render halakhic decisions. Nevertheless, it seems to this student that there are other answers to the Shemayah and Avtalyon question [paralleling the already established fact that there are other answers in Tosafot to the Deborah question], such that R. Trunk’s implicit conclusion does not necessarily refute Rema and Sha‘arei Teshuvah.42

Yet another source on the topic is the responsum of R. Isaac Herzog. R. Herzog’s responsum – whose ruling is correctly cited by R. Bin-Nun and R. Sperber in their respective responsa,43 and which is subsequently correctly identified by locational reference by R. Broyde and R. Brody’s joint composition44 – is found in Techukah le-Yisrael al pi ha-Torah (Jerusalem, 1989), pp. 109-110, posthumously published by Dr. Itamar Warhaftig.45 In context, R. Herzog

41 This source is cited by Mrs. Henkin, R. Henkin, as well as the joint composition of R. Broyde and R. Brody.

42 See R. Yitzchok Mitnick, Avodah Berurah al Mesekhet Horayot (Brooklyn, 5771), pp. 181-182, for other answers to the Shemayah and Avtalyon question. It is also interesting to note that R. Joseph Ber Soloveitchik accepts R. Trunk’s approach, except that he divorces it from the Tosafot regarding Deborah. Namely, in his June 19, 1975 lecture to the RIETS alumni on the laws of gerut, R. Soloveitchik states [quoting his father R. Moshe Soloveitchik] that Shemayah and Avtalyon – being the leading Sages of their era – participated in the abstract deliberations of the Sanhedrin, where their extraordinary scholarship was decisive in discovering authoritative halakhic conclusions. However, Shemayah and Avtalyon subsequently recused themselves from voting on cases that can only be adjudicated by a Sanhedrin [-since, being converts, Shemayah and Avtalyon were technically disqualified for the Sanhedrin.] Thus far, R. Soloveitchik’s analysis is entirely congruent with R. Trunk’s. Yet, when asked during his lecture how this relates to Deborah, R. Soloveitchik simply answers that Deborah was a political administrator. R. Soloveitchik never relates explicitly to Tosafot during his lecture, but his characterization of Deborah as a political administrator appears to correspond best to answer (3) of Tosafot catalogued supra, note 27, viz. that Deborah served as an arbitrator. Ergo, there is no proof according to R. Soloveitchik that a lady can render halakhic decisions. [See supra, note 40.] 43 Referenced supra, note 9.

44 Referenced supra, note 17.

45 As explained by Dr. Warhaftig in the introduction to the work, Techukah le-Yisrael al pi ha-Torah consists of a series of rulings personally written by R. Herzog (but the majority of which was not published during his lifetime)

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responds to the claim of those who would deny ladies the right to participate in elections (as voters and/or as candidates to be elected) on the grounds that a lady’s “knowledge is light.”46 R. Herzog rejects this claim because, inter alia, we hold that ladies are qualified to render halakhic decisions, as per Pit’chei Teshuvah to Choshen Mishpat no. 7, se‘if katan 5. R. Herzog therefore continues that when the gemara states that a lady’s “knowledge is light,” it refers only to a lady’s ability to maintain confidentiality under circumstances of duress. R. Herzog insists that in no way can this disqualify a lady from participating in elections.47 Remarkably, this responsum proves that R. Herzog interprets Pit’chei Teshuvah to mean that the halakhah follows Birkei Yosef (i.e. authorizing ordination of ladies), precisely following Encyclopedia Talmudit’s interpretation of Pit’chei Teshuvah presented earlier. 48 Accordingly, with all due reverence

regarding how the State of Israel should function in consonance with Halakhah. On p. 27 of the introduction, Dr. Warhaftig professes that “I am not convinced whether the material was ready from his [i.e. R. Herzog’s] side for final publication, yet in any event almost all the material in my possession was transcribed with a typewriter and passed a proofreading by the Rabbi himself, such that I have no doubt that the words indeed reflect his view.” Thus, thirty years after R. Herzog’s ascent to the Heavenly Academy, these rulings were finally published.

46 As observed supra, note 32, the source for the dictum that a lady’s “knowledge is light” is the gemara in Shabbat 33b and Kiddushin 80b.

47 R. Herzog does add the bracketed caveat that since cabinet members of government do need to be capable of maintaining confidentiality even under duress, he would recommend against appointing ladies to cabinet. But this is irrelevant for most elected positions in the legislature, which entail no cabinet responsibilities, and hence which should be open to ladies.

48 Interestingly, even R. Herzog himself adds the caveat that he would personally not want to see ladies serve as halakhic decisors, despite his ruling that – in principle (based on Pit’chei Teshuvah) – ladies are authorized to be so ordained. In R. Herzog’s words (p. 110):

“And it almost goes without saying that my intention is not chas ve-chalilah that they should appoint ladies as halakhic decisors in communities, because for an appointment of this nature the aforementioned poskim of blessed memory did not intend. [Now, the reason my intention is not that ladies be appointed as halakhic decisors of communities is] not because they [the ladies] are intrinsically disqualified according to the law on account of ‘all positions of authority should only be taken by gentlemen’ [Rambam, Hilkhot Melakhim 1:5], for this is not a position of authority. Rather, [the reason my intention is not that ladies be appointed as halakhic decisors of communities is that] because in general I have already said that religious Judaism must oppose election of ladies [on account of non-halakhic public policy considerations] except that if [this public policy consideration] will not win, Heaven forbid for [the observant community] to separate from leadership of the community on this account. Whereas the appointment of halakhic decisors is a matter controlled by religious councils, and there would be no possibility of appointment of ladies to such a position except by virtue of coercion by the government, and this for sure it is forbidden to give. And if in one case out of a thousand the government will seek to coerce upon us the appointment of a lady to such a position, it is forbidden for us to recognize her and it is upon us to prohibit her decisions, and ipso facto the matter will be cancelled. And the essence of the fact that this will lead to force us [to take action to prohibit her decisions] already disqualifies her for a sacred task like this. But I think that just as the matter [of appointing ladies as halakhic decisors of communities] never was, so too it will never be, and it is not necessary to elaborate on this point.”

In other words, R. Herzog subscribes to the position of R. Broyde and R. Brody (referenced supra, note 17) that ladies can be ordained according to the letter of the law, but public policy considerations augur in favour of

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manifest before R. Herzog, the same objection that applied to Encyclopedia Talmudit’s interpretation of Pit’chei Teshuvah will apply to R. Herzog’s interpretation of Pit’chei Teshuvah.49

In summary, then, we appear to have discovered a dispute among both Rishonim and Acharonim whether a lady may render a halakhic decision (in a non-judicial capacity). Among the Rishonim: Chinukh holds of the affirmative, as do two out of four solutions of Tosafot. [The other two solutions of Tosafot are inconclusive.] On the other hand, Ran, Semag and Issur ve-Heter hold in the negative. Among Acharonim: Birkei Yosef, Minchat Chinukh, Yeshu‘ot Yisrael and R. Herzog hold in the affirmative, whereas Rema and Sha‘arei Teshuvah hold in the negative, while Pit’chei Teshuvah is undecided.50

avoiding such ordination. The difference between R. Herzog’s public policy considerations vs. R. Broyde and R. Brody’s public policy considerations is one of degree, based on the perceived sociological realities of the time. [Viz. in R. Herzog’s time, it was unthinkable for a lady to ever serve as a halakhic decisor at any time in the foreseeable future. A half-century later, there is indeed a foreseeable possibility (in the evaluation of R. Broyde and R. Brody) for a lady to serve as a halakhic decisor, provided that certain logistical challenges are successfully navigated within the next few years, as described by the concluding section of R. Broyde and R. Brody’s article.] Remarkably, R. Herzog speaks of enforcing his public policy considerations by “prohibiting the decisions” of a lady who renders halakhic decisions. This idea [which would be subsequently recapitulated a half-century later by R. Student (see supra, note 14)] seems problematic to the present writer, and is never substantiated by R. Herzog. [Cf. Iggerot Mosheh, Yoreh De‘ah III, no 88, where R. Moshe Feinstein writes that the greatest honour one can grant the Chazon Ish is to rectify the (exceedingly seldom) mistakes that he rendered.] Still, leaving aside public policy questions and enforcement tactics, the fundamental ruling of R. Herzog is that ladies are indeed authorized to render halakhic decisions in principle.

49 Parenthetically, the challenge that is being raised to R. Herzog in the main text of this essay (viz. that he overlooked the full meaning of Pit’chei Teshuvah’s comment) does not negate the cogency of R. Herzog’s conclusion that ladies may participate in elections according to the letter of Halakhah. Even according to the poskim (overlooked by R. Herzog, such as Sha‘arei Teshuvah cited by Pit’chei Teshuvah) who deny a lady the capacity to render halakhic decisions, the dictum that a lady’s “knowledge is light” refers only to the fact that there is a Scriptural decree exempting them from Torah study, as explained earlier in the main text of this section. In no way does this consideration preclude the possibility of ladies’ participation in elections (as voters and/or as candidates for the legislature, the latter applying at least for non-cabinet positions). Indeed, from the gemara in Niddah 45b that ladies are endowed from Heaven with superior understanding, it would emerge that ladies are more qualified to participate in elections than are gentlemen! Thus, even if R. Herzog (following the example of Encyclopedia Talmudit) overlooked the balance of Pit’chei Teshuvah’s remarks regarding the ability of ladies to render halakhic decisions, the essential thesis of R. Herzog remains true insofar as ladies’ participation in elections is concerned.

50 Additionally, R. Maroof (in his responsum referenced supra, note 9) writes that R. Ben-Zion Meir Chai Uziel – both in his Shu”t Mishpetei Uziel and his Shu”t Piskei Uziel – authorizes ladies to render halakhic decisions. With all due respect manifest before R. Maroof, it seems to this student that no such authorization appears in R. Uziel’s responsa. It is true that Mishpetei Uziel, Choshen Mishpat, no. 5 authorizes a lady to serve as a voluntarily accepted arbitrator , and that Mishpetei Uziel, Choshen Mishpat no. 6 authorizes a lady to vote in democratic elections. But at no time does Mishpetei Uziel ever authorize a lady to render a halakhic decision. [As explained supra, note 40, a Noahide can also serve as an arbitrator, even though all agree that a Noahide is not authorized to render a halakhic decision. Mutatis mutandis, the fact that Mishpetei Uziel authorizes a lady to serve as an arbitrator does not prove that he authorizes a lady to render a halakhic decision. In fairness to R. Maroof, the information supra, note 40, is based on R. Willig’s 2011 lecture, which was only delivered after R. Maroof had already written his 2009 responsum (referenced supra, note 9).] Similarly, it is true that Piskei Uziel no. 44 authorizes ladies to represent community interests and to meet with gentlemen in a serious professional atmosphere to manage the needs of the public. But at no time does Piskei Uziel ever authorize a lady to render a halakhic decision.

[Moreover, although there is no clear indication to this effect, it seems to this student that there might be grounds to suggest that R. Uziel specifically agrees with the analysis of R. Willig (in his 2010 lecture, referenced

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C. THE PRECEDENT OF BERURIA

In his responsum,51 R. Sperber adds an impressive precedent to the discussion, one that Birkei Yosef never cited but which seems to vindicate Birkei Yosef: Beruria, who was herself an outstanding Torah scholar [as per the gemara in Berakhot 10a, Eruvin 53b-54a, and Pesachim 62b] and who herself rendered halakhic decisions [as recorded twice in the Tosefta of Tractate Kelim (first gate, 4:9; and middle gate, 1:3).]

Nevertheless, it seems to this student that – with all due reverence manifest before R. Sperber – the Beruria precedent is not necessarily as conclusive as it may originally appear. In both Tosefta cases, Beruria’s ruling is cited by others [being gentlemen] who evaluated the insights of the lady in question, and – through methods of Oral Torah – those gentlemen concluded that the insight of the lady was correct in each particular instance. This is not necessarily the same as declaring that a lady is authorized to render a halakhic ruling. To wit: the gemara in Berakhot 32b records the interpretation of a Noahide government minister as to the meaning of Deuteronomy 4:9. That interpretation is then codified as normative by Rambam, Hilkhot Rotze’ach 11:4.52 Yet, it is universally agreed that a Noahide, no matter how learned he is in Torah study, is disqualified to render a halakhic decision. Mutatis mutandis, the fact that Beruria’s halakhic insights appear in the Tosefta does not necessarily prove that ladies themselves can render a halakhic decision.

Moreover, some understand Rashi to Avodah Zarah 18b (s.v. ve-ikka de-amrei mishum ma‘aseh de-Veruriah) as reporting that Beruria eventually took her own life to atone for a series of events that were catalyzed by her questioning the principle that a lady’s “knowledge is light,” viz. the very same principle upon which Rema (as analyzed in Section B of this essay) disqualifies a lady from rendering a halakhic decision. If that is the case, then – quite the contrary – the precedent of Beruria could be argued to actually support the opinion of Rema that

supra, note 31) to limit halakhic decision-making to gentlemen. This emerges from Mishpetei Uziel, Choshen Mishpat no. 6, sec. 1, s.v. al ha-rishonah, where R. Uziel endeavours to justify ladies’ participation in elections by invoking the gemara in Niddah 45b that ladies are endowed from Heaven with superior understanding. R. Uziel argues that society will benefit from the input of ladies during the vote, since they can be trusted to vote with superior understanding. Yet, R. Uziel concedes that he is faced with a (seemingly) variant talmudic dictum (Shabbat 33b, Kiddushin 80b) which states that ladies’ knowledge is “light”. R. Uziel responds to this consideration by cryptically writing that “it has entirely different meaning” (yesh lo muvan acher le-gamrei), but R. Uziel does not explain further. Arguably, R. Uziel’s cryptic remark could be interpreted to mean that Shabbat 33b and Kiddushin 80b should be interpreted to yield the conclusion bespoken by Ran, Semag and Issur ve-Heter (as elucidated by R. Willig), viz. that because ladies are exempt from the mitzvah de-oraita of Torah study, therefore the responsibility of rendering halakhic decisions is not entrusted to ladies.]

51 Cited supra, note 9.

52 R. Bleich, Bioethical Dilemmas II, p. 115, emphasizes that there is apparently no other source for Rambam’s ruling than the Noahide government minister’s interpretation. [This consideration has already been advanced supra, note 28, as a deflection to R. Sklars.]

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a lady should not render halakhic decisions.53 On the other hand, the Rashi regarding Beruria’s alleged suicide is controversial; some insist that Rashi’s comment should be understood in purely allegorical/metaphysical terms, while others insist that the comment could never have actually been written by Rashi, but rather appears in our Rashi manuscripts due to a copyist’s error. Certainly, all poskim agree that no one should ever attempt to duplicate Beruria’s alleged suicide, whether that alleged suicide was historical, allegorical or contrafactual.54 In any event, it seems to this student that even according to the school of thought that one should allegorize/disregard the comment of Rashi, the precedent of Beruria does not necessarily prove that a lady may render a halakhic decision, due to the consideration raised in the previous paragraph.

D. LADIES CITED AS ACTUAL HALAKHIC SOURCES BY RISHONIM

R. Sperber further champions the ruling of Birkei Yosef (viz. that a lady is authorized to render a halakhic decision) based on multiple instances of ladies cited as actual halakhic sources by Rishonim.

Firstly, Tosafot to Shabbat 111a-b, s.v. hai, report that “Ri heard from the mouth of ladies that Rabbeinu Tam permitted [a woman taking care of a soiled baby] to wash her hands [on the Sabbath] and to wipe her [wet] hands on the [soiled] garment in order for her to be allowed to pray.” [Tosafot proceed to record that Ri disagrees with this ruling attributed to Rabbeinu Tam.]

Secondly, Or Zaru‘a II, no. 256, in elucidating the laws of Pesach, cites a lady/ladies twice: (a) He quotes (p. 117, right hand column) his mother-in-law as quoting her late husband 53 See R. Eliezer Yehudah Waldenberg, Shu”t Tzitz Eliezer IX, no. 3; and R. Menasheh Klein, Shu”t Mishneh Halakhot IX, no. 238, who draw this conclusion regarding ladies’ Torah learning. [A fortiori, those authorities would not allow a lady to render a halakhic decision.]

54 For a survey of opinions on the episode of Beruria, see R. Eitam Henkin, “Ta‘alumat ‘Ma‘aseh de-Veruriah’”; Akdamut no. XX1 (Elul 5768); R. Aryeh Zev Eleff, Shirat Miriam (New York, 5769), pp. 164-193; and R. Yitzchak Mitnick, Avodah Berurah al Mesekhet Avodah Zarah I (Brooklyn, 5770), pp. 405-406.

In the opinion of this student, a satisfactory manner in which to explain Beruria’s suicide (if one holds that the comment attributed to Rashi is indeed authentic, a matter whose adjudication is beyond the scope of the present essay) would be in much the same way as one would explain the episode of Beruria’s father Rabbi Chanina ben Teradyon [described on the immediately previous page in the Talmud, viz. Avodah Zarah 18a]. Namely, the episode of Beruria was a hora’at sha’ah; viz. a one-time event pre-programmed from Heaven for the ultimate benefit of all protagonists. [See Iggerot Mosheh, Choshen Mishpat II, no. 73, sec. 3 who describes the R. Chanina ben Teradyon episode as a hora’at sha‘ah.] Since the gemara in Berakhot 5a reports that the entirety of the Bible and Talmud was revealed to Mosheh Rabbeinu at Mount Sinai, it emerges that all events described by the Bible and Talmud, including the episodes of Rabbi Chanina ben Teradyon and Beruria, were pre-programmed from Heaven, and thus can be explained as a hora’at sha‘ah. And see the gemara in Avodah Zarah 4b which explicitly states that the episodes of the golden calf and of (le-havdil) King David were pre-programmed from Heaven. Somewhat similarly, see R. Moshe Sofer, Torah Mosheh (third edition) to Deut. 34:5, who explains that all events recorded in the Sefer Torah were pre-programmed from Heaven even prior to Creation. Mutatis mutandis, the same philosophy could be applied to all episodes recorded in the Talmud. [And see R. Chaim Yosef David Azulai, Mar’it ha-Ayin commentary to Avodah Zarah 18b, who cites a mystical tradition that Beruria was a transmigrated soul of Bathsheba, and that the disciple of Rabbi Meir (-the other protagonist in the episode recorded by our manuscript of Rashi) was a transmigrated soul of Uriah. If so, this student’s invocation of the gemara in Avodah Zarah 4b would appear particularly apt. (Interestingly, Mar’it ha-Ayin is, of course, the same author as Birkei Yosef.)]

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(viz. Or Zaru‘a’s father-in-law) to prohibit kneading thick dough in a utensil for the purpose of baking matzah, despite the fact that such thick dough was acceptable in the Temple [where chametz is generally prohibited year-round.] The mother-in-law (quoting her late husband) explains that we cannot take the liberty to duplicate outside the Temple the special kneading-technique which was employed in the Temple itself. (b) He cites (p. 119, right hand column) the practice of ladies to mark which matzah emerged from the oven earlier, so that it will enjoy the honour of being on top at the Seder (relative to a matzah which emerged from the oven later), just as the boxes used to take half-shekel coins from the Temple treasury were analogously marked, as per the mishnah in Shekalim 3:2. [Or Zaru‘a proceeds to disapprove of this matzah-marking practice, arguing that the middle matzah and the lower matzah enjoy equal importance as the upper matzah, pursuant to the gemara in Megillah 21b.]

Thirdly, Shu”t Or Zaru’a (by R. Chaim, son of the aforementioned Or Zaru‘a), no. 101 quotes his mother-in-law to the effect that Rabbeinu Abba Mari (our teacher, my father and master55) would wash his hands and recite the blessings of netilat yadayim as well as Asher Yatzar after he arose in the middle of the night to visit the washroom. Subsequently, the same Shu”t Or Zaru‘a (by R. Chaim son of the aforementioned Or Zaru‘a), no. 146 transcribes a letter written by his teacher R. Isaac ben Elijah. In this letter, R. Isaac investigates whether the stringency of Rabbi Zeira (recorded by the gemara in Niddah 66a, viz. for a Jewish lady to automatically require herself to observe seven clean days upon experiencing even a mustard-size drop of menstrual blood) also encompasses a requirement to observe seven clean days during the dam tohar period (described by Leviticus 12:4-5). After offering his own survey of the pertinent literature on the topic, R. Isaac reports “my wife says that her great father – at the end of his days – warned the members of his household to observe [the stringency of Rabbi Zeira during the dam tohar period] in privacy, because in France they grab mitzvot and [le-havdil] insanity to be stringent about poultry and milk whether one should prohibit it in benefit...”56

Fourthly, Teshuvot Maimoniyot, Ma’akhalot Asurot, no. 5 cites a lady/ladies five times, all on the theme of milk and meat: (a) He quotes the widow of his uncle Rabbeinu Yehudah to the effect that her late husband would not protest when members of the household would bake a meat-filled pie/quiche (pashtidah) in an oven that had previously been employed to bake a dairy-filled pie/quiche (fladon) as long as the oven was energized in the interim to the same level that bakers normally fire-up an oven. (b) Teshuvot Maimoniyot further reports that such is also the

55 Although, prima facie, this would literally refer to the father of R. Chaim (i.e. it would refer to the author of Or Zaru’a, the father of Shu”t Or Zaru’a), the present student assumes that it would be unnecessary for R. Chaim to have consulted his mother-in-law with respect to the practices of his own father, and therefore the source of information is actually R. Chaim’s father-in-law. [I.e. the mother-in-law is quoting her late husband.] R. Chaim simply refers to his late father-in-law as “my father” as a sign of endearment. 56 Although the flow of ideas in this sentence is not entirely clear to the present student, it appears that the following is its intended meaning. The wife of R. Isaac ben Elijah quoted her father to the effect that whereas his own household should elect as a matter of piety to observe Rabbi Zeira’s stringency even during the dam tohar period, nevertheless he felt that publicizing this stringency (which exceeds the letter of the law) in the milieu of the Jewish community of France (where her father lived) would be spiritually deleterious to the community, because the community already experienced a sort of “obsessive compulsive disorder” in the pursuit of unnecessary stringencies, as evident by the community’s concern that perhaps poultry cooked with milk is prohibited in benefit. [In fact, poultry cooked with milk – while prohibited in consumption on a rabbinic level – is permissible in benefit.] [N.B. The accepted halakhah by Rema in Shulchan Arukh Yoreh De‘ah 194:1 is that the stringency of Rabbi Zeira applies even during the dam tohar period, and that this principle must indeed be publicized to the world at large. However, in the time of R. Isaac ben Elijah, the authoritative decision of Rema had obviously not yet been canonized.]

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practice of the household of his grandfather Rabbeinu Meir, as well as the household of “Marat57

Miriam the granddaughter of Rabbeinu Shlomo.” (c) On the other hand, continues Teshuvot Maimoniyot, [a different lady named] “Marat Miriam the wife of my uncle Rabbeinu Tam” is stringent to require kosherizing the oven with a torch (libbun) that reddens the oven. Teshuvot Maimoniyot confesses that he does not know whether this latest Miriam is doing so based on the ruling of his uncle Rabbeinu Tam’s ruling [-Rabbeinu Tam being her current husband], or based on the practice of her first husband Rabbeinu Avraham – who was accustomed to stringencies (writes Teshuvot Maimoniyot) – and/or whether this practice is only an ab initio stringency but would not be applied post facto. (d) In any event, Teshuvot Maimoniyot continues that ladies are accustomed in every place to lend pashtidah and fladon to one another without inquiring whether the oven was kosherized with libbun in the interim, so long as the oven was energized in the interim to the normal level that bakers fire-up an oven. (e) Teshuvot Maimoniyot concludes that if he would know that Rabbeinu Tam was stringent [-which Teshuvot Maimoniyot entertains as a doubtful possibility in (c) above,] then he would defer to Rabbeinu Tam, but so long as Rabbeinu Tam’s position is unknown, “we rely on our own logic58 and on the testimony of the daughters of the giants of the generation.”

Fifthly, Ra’aviah no. 841 writes that he heard from his aunt – Eishet Rabbeinu (the wife of our teacher) – testifying in the name of her husband that he would not allow mourners who buried a departed relative on Erev Rosh ha-Shanah to fast on that day [despite the fact that a bona fide custom exists to fast on Erev Rosh ha-Shanah]. Raaviah proceeds to independently suggest that the reason his uncle (as quoted by the uncle’s wife) ruled so is because fasting on Erev Rosh ha-Shanah is not required according to the letter of the law, such that the paramount mitzvah to be observed is to put the mourners’ emotional distress at ease by feeding the mourners with a se‘udat havra’ah, rather than allowing the mourners to fast.59

Nevertheless, it seems to this student that – with all due reverence manifest before R. Sperber – these precedents from the Rishonim are not necessarily as conclusive as they may originally appear. In the case of Tosafot, Or Zaru‘a (a), Shu”t Or Zaru‘a, Teshuvot Maimoniyot (a), (b), (c) [and possibly (e)], as well as Raaviah, the lady being featured is quoting a third party (who is a gentleman), and Tosafot/Or Zaru‘a/Shu”t Or Zaru‘a/Teshuvot Maimoniyot/Ra’aviah is now evaluating whether the lady’s quotation is normative. Of course, Or Zaru‘a (b) and Teshuvot Maimoniyot (d) [and possibly (e)] represent more formidable cases, since the practice of ladies [without quoting any gentlemen] is being cited. Still, even these more formidable cases do not necessarily represent an absolute proof that ladies can render halakhic decisions, seeing as the same rejoinder that was offered to the Beruria precedent (Section C above) can be offered here, as well. Viz., the practice of the ladies is being cited by a gentleman (viz. Or Zaru‘a/Teshuvot Maimoniyot), who – using methods of the Oral Torah – is now evaluating the validity of the ladies’ insight.

57 A titile of honour meaning “The Mistress” or “Her Majesty.”

58 I.e. in the portion of this responsum that precedes the citation of scholarly ladies, Teshuvot Maimoniyot presents his own reasoning why baking pashtidah and fladon successively in the same oven should be permitted without an intervening libbun.

59 In the Harry Fischel edition of Raaviah (Jerusalem, 5724), this passage is found in Vol. 3, p. 561.

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E. THE EPISODE OF SHEVA BEN BIKHRI

Mrs. Chanah Henkin cogently identifies the episode of Sheva ben Bikhri as another source of relevance to the question of ordaining ladies.60 II Samuel 20:16-22 records how a sagacious lady (ishah chakhamah) saved the lives of her townspeople by convincing them to deliver Sheva ben Bikhri to King David’s army.61 The Jerusalem Talmud, Terumot 8:10, understands the lady’s counsel to be in accordance with Halakhah, and features a debate between Resh Lakish and Rabbi Yochanan how to interpret this episode. In analyzing the debate of the Jerusalem Talmud, R. Moshe Feinstein, Iggerot Mosheh, Yoreh De‘ah II, no. 60, sec. 4, describes the counsel of the sagacious lady as a “hora’ah”, a genuine halakhic decision. Thus, R. Feinstein appears to understand the episode of Sheva ben Bikhri as establishing that a lady may render a halakhic decision.

While Mrs. Henkin’s proof is indeed legitimate (and accordingly supports Birkei Yosef, Minchat Chinukh, Yeshu‘ot Yisrael and R. Herzog), it seems to this student (in defense of Rema and Sha‘arei Teshuvah) that the Sheva ben Bikhri episode could be alternately interpreted. It is not necessarily the case that the sagacious lady rendered an actual halakhic decision, but rather it could be that her counsel implemented an already established halakhah that she received from her own teachers. To be sure, II Samuel 20:16 describes this lady as an ishah chakhamah, viz. that she merited the praise of Proverbs 31:26 that “her mouth is open with wisdom, and the Torah of kindness is upon her tongue.” But this does not necessarily mean that she rendered any halakhic decision. It could be that she is called an ishah chakhamah because all the other townspeople forgot the relevant halakhah for this situation, and she was the only one who was able to remind them.62

Yet, R. Feinstein himself does insist that the terminology “ishah chakhamah” in II Samuel 20:16 absolutely means that she did render a halakhic decision regarding Sheva ben Bikhri. Ergo, according to this responsum of R. Feinstein, a lady can serve as a rabbi. On the other hand, in Iggerot Mosheh, Yoreh De‘ah II, no. 71, R. Feinstein explains that there is a safek whether a lady can render a hora’ah regarding the colour of niddah blood, and that this safek is adjudicated to the side of stringency (i.e. she cannot). Ergo, according to this alternate responsum of R. Feinstein, a lady cannot serve as a rabbi.60 Referenced supra, note 5.

61 According to a midrash cited by Rashi to II Samuel 20:16, the lady was Serach bat Asher. Radak (ad. loc.) questions this midrash, but the midrash is upheld by Kli Yakar (ad. loc.)

62 Such an alternate interpretation to the Sheva ben Bikhri episode, while obviously incompatible with this responsum of R. Feinstein(*), appears to this student to be compatible with the independent approaches to the Sheva ben Bikhri episode suggested by R. Meir Shapiro, Shu”t Or ha-Meir no. 39 and by R. J. David Bleich, Be-Netivot ha-Halakhah I (KTAV Publishing, 1996), pp. 106-117.

[(*)=Interestingly, although not related to the question of whether the ishah chakhamah rendered a halakhic decision, in an earlier segment of the same published responsum (sec. 2, final paragraph), R. Feinstein adds that several years after originally composing his responsum, he found a different approach expressed by R. Chaim Soloveitchik. R. Feinstein remarks that both what R. Soloveitchik writes and what he (R. Feinstein) writes are true, because “there are many faces to the Torah.”]

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Accordingly, it seems to this student that the episode of Sheva ben Bikhri – as it stands on its own without R. Feinstein’s elucidation – does not necessarily prove that a lady can render a halakhic decision, and although R. Feinstein does elucidate it as such (viz. that it proves that a lady can render a halakhic decision), this is apparently contradicted by a different responsum of R. Feinstein in the same volume of Iggerot Mosheh.

F. THE MEMOIRS OF R. YOSEF YITZCHAK SCHNEERSOHN

A new source of potential relevance to ladies’ ordination is an episode recorded by R. Yosef Yitzchak Schneersohn, sixth mentor of the Lubavitch movement.63 R. Schneersohn himself ascended to the Heavenly Academy in 1950. Some fifteen years later, volume 2 of his Sefer ha-Zikhronot (memoirs of stories that R. Schneersohn had inherited from his ancestors) was posthumously published in Yiddish, based on R. Schneersohn’s handwritten manuscripts. The book would subsequently be translated into English by Nissan Mindel, and is available today as a revised edition (Kehot Publication Society, 2004). On pp. 252-254 of that volume, the story of Rachel Batlan (paternal grandmother of R. Shneur Zalman of Liadi) is related, as follows.

Rachel was raised by her father – R. Baruch Batlan – to be a great Torah scholar. One Shabbat, father, daughter and several others (including the daughter’s groom) were walking through the street; all were wearing gloves in reliance upon the neighbourhood eruv, and one was also carrying holy books, certainly in reliance upon the neighbourhood eruv.64 The party was suddenly apprised that the eruv was inoperative. R. Batlan revealed to the party that his daughter knows the halakhah, and he called upon her to render a ruling how they should proceed. Obligingly, she did so. R. Schneersohn (author of these memoirs) proceeds to relate that for some time afterward, Rachel’s groom was displeased with this event, until his father-in-law (R. Batlan) mollified him.

Presumably, the fact that R. Schneersohn records this episode in his memoirs means that R. Schneersohn approves of the notion of a lady rendering a halakhic decision, positioning him as an ally to Birkei Yosef, Minchat Chinukh, Yeshu‘ot Yisrael and R. Herzog. However, R. Schneersohn never relates to the countervailing evidence presented in Section B, viz. that Rema and Sha‘arei Teshuvah prohibit a lady from rendering a halakhic decision. Thus, it is unclear to this student how much weight can be assigned to this episode that is transcribed by R. Schneersohn.

The present student would hypothesize that there is also another way in which to interpret the Rachel Batlan episode. In recording the anecdote, R. Schneersohn never invoke the sources

63 I am grateful to Reb Chaim Katz for bringing this valuable source to my attention.

64 Shulchan Arukh Orach Chaim 301:37 records a dispute among the Rishonim whether a Jew may wear gloves outside an eruv on Shabbat, if the gloves are not linked to one’s coat sleeves. Shulchan Arukh proceeds to recommend stringency. On the other hand, all Rishonim [and Shulchan Arukh] obviously agree that a Jew cannot carry holy books outside an eruv on Shabbat.

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that support the idea of a lady rendering a halakhic decision. Granted that R. Schneersohn could not have been aware of R. Herzog’s responsum [which was only published after R. Schneersohn’s ascent to the Heavenly Academy,] but R. Schneersohn certainly should have been aware of Birkei Yosef, Minchat Chinukh and Yeshu‘ot Yisrael that preceded him. His silence in citing any of these sources raises the possibility that perhaps there is an alternate message to his rendition of the Rachel Batlan story.

Namely, R. Jacob Emden tentatively expresses the possibility that an individual be allowed to sacrifice his life in order to save his child.65 Similarly, R. Zvi Hirsch Meisels considers the possibility that a person’s child be regarded as the equivalent of a person himself in the application of the hatzalah vs. mesirah dichotomy for lifeboat ethics.66 Those opinions are philosophically justified by R. J. David Bleich through the truism that a child can be regarded as the alter ego of his/her parent, as per the principle “in place of your fathers shall be your children” (Psalms 45:17) that is elaborated by the gemara in Bava Batra 159a, by R. Shlomo Kluger in his Imrei Shefer, Parashat Kedoshim, sec. 14 and by R. Elchanan Wasserman in his Kovetz Shi’urim II, no. 12.67 Although the doubts entertained by R. Emden and R. Meiselesh lead to the normative practical conclusion that a person dare not sacrifice his life even for his child, and that a child dare not be regarded as the triage equivalent of oneself regarding hatzalah vs. mesirah, nevertheless, the theoretical possibility to the contrary may be the motivating factor behind R. Schneersohn’s transcription of the Rachel Batlan episode. Viz., R. Baruch Batlan may have regarded his daughter as an extension of himself, and thus – when he asked his daughter to render a halakhic decision – what he really meant to say was “I am capable of rendering the halakhic decision myself, but since I have learned much Torah with my daughter, and since I regard my daughter as an extension of myself, it would give me pride to hear my daughter announce the halakhic decision. Let her render the verdict, and if she errs, I can immediately refresh her memory and correct her.” [Fortunately, as recounted in the story, the daughter did not err, and so there was no need for R. Batlan to refresh her memory.]

In the final analysis, it seems to this student that the most straightforward and likely way in which to interpret R. Schneersohn’s recording of the Rachel Batlan episode is that he indeed rules like Birkei Yosef, Minchat Chinukh and Yeshu‘ot Yisrael. Even so, R. Schneersohn never presents any evidence to refute Rema and Sha‘arei Teshuvah. On the other hand, there is also a small/remote possibility that R. Schneersohn is not adjudicating the question of a lady rendering a halakhic decision per se, but rather he is applying the principle of “in place of your fathers shall be your children,” as hypothesized in the foregoing two paragraphs.

65 Sefer Birat Migdal Oz, Even Bochen, Pinah Aleph, sec. 85. Somewhat similarly, in his Teshuvot ve-Hanhagot IV, no. 323, R. Moshe Sternbuch tentatively articulates the possibility that perhaps a terminally ill but pregnant cancer patient enjoys the option to voluntarily refrain from undergoing life-prolonging chemotherapy in order to allow her fetus to survive until parturition, if she so chooses. The lady’s wish to give birth to a living child may trump her own self-survival piku’ach nefesh obligation. [R. Sternbuch concludes that the matter requires further clarification.]

66 Teshuvot Mekadshei Ha-Shem I, sha’ar machamadim, ch. 3. For an exposition of R. Meisels’ thesis, see Shalom C. Spira and Mark A. Wainberg, “HIV Vaccine Triage: Halakhic Considerations,” Jewish Law Annual XX (2013), footnote 68.

67 Be-Netivot ha-Halakhah I, pp. 125-126; and Tradition 41:2 (Winter 2008), pp. 28-30.

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G. THE OBLIGATION FOR A SYNAGOGUE TO HIRE CLERGY

Shulchan Arukh Orach Chaim 53:24, based on the responsa of Rosh, rules that if a synagogue has insufficient resources to appoint both a rabbi and a cantor as clergy, then if the rabbi is “great in Torah learning and expert in halakhic decision making,” he takes precedence, whereas otherwise the cantor takes precedence. Mishnah Berurah, se‘if katan 71 and 72 (as well as Bi’ur Halakhah, s.v. sheli’ach tzibbur) explains that this serves to highlight the fundamental obligation that every community has to appoint a rabbi who is expert in decision making. Even though, absent a cantor, the congregation will not be able to pray properly [in a society where siddurim are not widely available, such that only the cantor has access to a siddur and/or knows the prayer liturgy by heart, which describes the sociological reality in the time of Rosh], nevertheless it is more important for the congregation to be guided by a competent halakhic decisor than to properly pray, because the proper fulfillment of many mitzvot (apart from prayer) depends upon the guidance of an expert rabbinic decisor. It is only where no competent halakhic decisor is available that the synagogue should hire a cantor, such that at least the synagogue will be able to fulfill the mitzvah of prayer properly.

Bi’ur Halakhah adds that, in his era,68 in communities where the congregants know how to pray, hiring a rabbi who is expert in decision-making must all the more so be prioritized. Transposing Bi’ur Halakhah’s ruling to our era [where siddurim and/or ability to pray by heart are almost universally available], R. Ovadiah Yosef, Shu”t Yabi‘a Omer VII, Yoreh De’ah no. 18, and R. Simchah Rabinowitz, Piskei Teshuvot commentary on Mishnah Berurah (ad. loc.) rule that there is certainly an absolute obligation which devolves upon every synagogue to appoint an expert rabbinic decisor as clergy.69

Accordingly, the question of whether a lady may render halakhic decisions will impact on whether a synagogue may fulfill its obligation to hire clergy by hiring her. We have seen (Section B) that the question of whether a lady may render a halakhic decision is subject to a debate among both Rishonim and Acharonim. We have also seen (Section E) that R. Moshe Feinstein has contradicted himself on this question, presumably reflecting the inherent nebulosity of the subject. We have further seen (Section F) that R. Yosef Yitzchak Schneersohn most probably rules in favour of the Rishonim and Acharonim who authorize a lady to render a 68 As distinct from the era of the Rosh, because by the time of Bi’ur Halakhah, availability of siddurim became commonplace, as did education to pray by heart.

69 One of the many sources cited by Yabi‘a Omer in this context (viz. Shu”t Kapei Aharon Azriel II, Yoreh De‘ah no. 6) invokes the biblical obligation to appoint judges over every Jewish community. In the opinion of this student, this citation by Yabi‘a Omer does not contradict the thesis presented by this student elsewhere [viz. “A Combination of Two Halakhically Kosher Prenuptial Agreements to Benefit the Jewish Wife”, available at <http://www.scribd.com/doc/176990434/Prenuptial-Agreements> , footnote 103 and accompanying text] that a bride and groom cannot force themselves in advance by way of a prenuptial contract (under present conditions in the Diaspora) to materialize before a particular Beth Din. [The basis of that thesis is that, under the current conditions in the Diaspora, a Jew enjoys the freedom to withdraw from one community (with one Beth Din) and join another community (with a different Beth Din) at any time. See that treatise for the implications this creates in the context of an agunah, and for a proposed solution.] Rather, what the responsum of Yabi ‘a Omer should be interpreted as indicating is that although a Jew enjoys the freedom to move from one synagogue community to another, any given synagogue community must prioritize appointing a qualified halakhic decisor.

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halakhic decision, but even he does not present any evidence to refute the countervailing school of Rishonim and Acharonim. [And, as mentioned is Section F, there is also an alternate way to interpret R. Schneersohn, albeit one whose possibility is small/remote in nature.]

In the opinion of this student, since the rendering of a halakhic decision represents a mitzvah de-oraita,70 and since the gemara in Avodah Zarah 7a establishes that an unresolved debate among the poskim regarding a mitzvah de-oraita must be treated stringently (out of doubt),71 it is prohibited (as a matter of safek de-oraita) for a lady to render a halakhic decision, and it follows that a synagogue cannot hire her as clergy.72

To recapitulate the conclusion in other words, it appears to this student that – insofar as the synagogue is concerned – “clergy” is defined as encompassing those roles identified by Shulchan Arukh Orach Chaim 53:24. In truth, the entire Jewish People is clergy, pursuant to Exodus 19:6, and – moreover – that verse was directed to the ladies of the Jewish People even before the gentlemen.73 Thus, the ladies of the House of Jacob represent the ultimate clergy. Yet, every synagogue community discriminates among its membership by imposing the burden of “clergy” (as the semantic term is conventionally employed) upon specified individuals for purposes of meeting the particular requirements of Shulchan Arukh Orach Chaim 53:24. Because of the unresolved doubt expressed in Sections B and E of this essay, the duties of Shulchan Arukh Orach Chaim 53:24 can only be fulfilled by gentlemen as a matter of practice, and therefore it would appear to this student that an Orthodox synagogue cannot appoint a lady to its “clergy”.74

70 See R. Bleich, Be-Netivot ha-Halakhah III, pp. 52-57, who demonstrates that the rendering of a halakhic decision represents a mitzvah de-oraita, derived from either Leviticus 10:11 or Deuteronomy 32:7.

71 The gemara’s principle is codified as normative by Rambam, Hilkhot Mamrim 1:5 and Rema in Shulchan Arukh, Yoreh De‘ah 25:2. For further treatment of this principle, see Section E of this student’s “The Quest for an Effective Synagogue Partition”, referenced supra, note 2.

72 While it may understandably take time for a synagogue (with a vacancy in its rabbinic position) to find the proper candidate to fill the role, to deliberately appoint a lady to that role – when there is a genuine doubt as to whether a lady can actually serve as a halakhic decisor according to Torah law – should presumably be forbidden as a refusal to comply with Shulchan Arukh Orach Chaim 53:24.

73 This point is emphasized by R. Zalman Sorotzkin, Shu”t Moznayim la-Mishpat no. 42; as well as Iggerot Mosheh, cited supra, note 39.

74 Of course, on Rosh ha-Shanah one further “clergy” member is needed, viz. a musician who sounds the shofar, pursuant to Shulchan Arukh Orach Chaim 595:1 that it is more important to sound the shofar correctly on Rosh ha-Shanah than to recite the mussaf for Rosh ha-Shanah. Yet, even this member of “clergy” must be a gentleman, since only a male musician can discharge the shofar obligation of fellow males on Rosh ha-Shanah, as per Shulchan Arukh Orach Chaim 589:1, 3. On the other hand, Shulchan Arukh Orach Chaim 589:6 does authorize a lady to blow shofar on Rosh ha-Shanah for herself [in order for her to voluntarily fulfill the mitzvah] as well as for fellow ladies. Thus, a synagogue which organizes a women’s-only shofar blowing on Rosh ha-Shanah could indeed appoint a female musician for that purpose. [N.B. R. Klein (referenced supra, note 12) is opposed to women’s-only shofar blowing, under the rubric of his general opposition to women’s prayer groups. However, other poskim disagree with R. Klein, as one may infer from the article co-authored by R. Klein’s interlocutor R. Frimer (also referenced supra, note 12). A resolution of that debate is beyond the scope of the present essay.]

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As R. Menasheh Klein (op. cit.) writes, the difference of roles prescribed by the Torah for ladies and for gentlemen does not reflect discrimination, but rather reflects unique mitzvah missions provided to each spiritual soldier in the legion of the King of kings, the Holy One, blessed be He. [In the case of rendering halakhic decisions, we have discovered that there is a genuine doubt whether or not ladies are eligible for that role, and it seems to this student that the Halakhah requires stringency due to this genuine doubt.]

H. A SUGGESTED PATH FORWARD75

A number of righteous ladies have graduated Yeshivat Maharat as of the date of the composition of the present essay. Although it seems to this student (as explained in Section F) that they cannot actually serve in a rabbinic role and that they therefore cannot actually serve as synagogue clergy, it further seems to this student that the professional training that these ladies have received eminently qualifies them to serve as yo‘atzot halakhah. As distinct from a rabbi who renders halakhic decisions, a yo‘etzet halakhah provides counsel to her fellow ladies (without her ever rendering any halakhic decision), following in the footsteps of our Matriarch Sarah who – as described by Rashi to Genesis 12:5 – taught Torah to other ladies.

Indeed, as noted in Section E, even those Rishonim and Acharonim who exclude ladies from the rabbinate (and who have been granted a veto by Section G of this essay, due to the principle that safek de-oraita le-chumra) must admit that the ishah chakhamah described by II Samuel 20:16-22 saved the lives of her townspeople by reminding them of a halakhah that they had forgotten. Ergo, the ishah chakhamah was a “yo‘etzet halakhah” par excellence, and serves as an appropriate example for today’s yo‘atzot halakhah.76

75 This section is patterned after the identically entitled closing section of R. Broyde and R. Brody’s article. This student is grateful to those authors for blazing the trail that enabled the composition of the present proposal.

76 Actually, based on the precedent of II Samuel 20:16-22, one could argue that a yo‘etzet halakhah be appointed to even counsel the gentlemen of the congregation. However, this student hesitates to advocate such an approach (-not only because it is inconsistent with the paradigm of Sarah our Matriarch whose teaching was specifically directed to ladies [-see also the gemara in Yevamot 77a which praises her for doing so], but also) because R. Moshe Feinstein, Iggerot Mosheh, Yoreh De‘ah III, no. 73, rules that a lady can only be a teacher to Jewish school boys (whether for sacred studies or for academic studies) “in a time of great duress” (she‘at ha-dechak gadol). Presumably, the reason of R. Feinstein’s limitation to she’at ha-dechak gadol is so as to follow the mitzvah de-Oraita of Deut. 23:10 for a gentleman to look away from a married lady in any situation where there is no functional benefit for the gentleman to see the lady (e.g. to rescue her from drowning, as per the Gemara, Sotah 21b, to serve as witnesses for an act of kiddushin, etc. etc.), analyzed in a previous responsum of R. Feinstein, viz. Iggerot Mosheh, Orach Chaim I, no. 40. In that earlier responsum, R. Feinstein writes that even for so important a purpose as answering a halakhic question presented by a married lady, a rabbi is obligated to try to look away in the other direction. In other words, where there is no functional benefit to seeing the lady, the mitzvah de-Oraita of Deut. 23:10 becomes relevant. [Obviously, everything depends on the social circumstances of the situation; there will be situations where it is essential for the rabbi to see the lady while speaking to her in order to effectively adjudicate the halakhic question. The rabbi must judge each case as it arises.]

If this student may take the liberty to suggest an elaboration on R. Feinstein’s words, schools indeed experience all sorts of she ‘at ha-dechak gadol on a regular basis, seeing as it is the healthy nature of school children to flee school in the first place (as per Tosafot to Shabbat 116a). Thus, a Jewish school administrator may realize

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R. Ovadiah Yosef, Shu”t Yechaveh Da‘at III, no. 72, rules that it is a mitzvah for the ladies who attend a Beth Jacob school to honour a lady Torah scholar who teaches them, by rising in her presence and by refraining from calling her directly by her first name.77 These considerations could certainly be transposed to a yo‘etzet halakhah, who – while her being unable to render halakhic decisions – would be honoured by the members of the congregation whom she counsels, both by their rising in her presence and by their addressing her by a title.78

Therefore, in the opinion of this student, a synagogue is forbidden to include a lady as a member of its clergy, but – on the other hand – it is acceptable for a synagogue to appoint a lady

that the best hope for educating the boys under his/her tutelage is to hire a creative and innovative lady Torah scholar (ishah chakhamah) who can accomplish the pedagogical duty more effectively than a gentleman. [And see Iggerot Mosheh, Orach Chaim IV, no. 49, where R. Feinstein writes that ladies are far superior to gentlemen (a concept highlighted supra, notes 2-4, 73) as is especially manifest in (though obviously not limited to) the ladies’ spiritual aptitude to care for children. Ergo, it is understandable how a Jewish high school would experience a she‘at ha-dechak gadol in its need to care for its students by means of an employing an ishah chakhamah to teach the high school boys.] Under such circumstances, the high school boys are allowed to look at the married lady who serves as their teacher.

On the other hand, transposing this she‘at ha-dechak gadol claim to the synagogue – where congregants attend by their own consent – is highly questionable. [The episode of II Samuel 20:16-22 was truly a she‘at ha-dechak gadol, viz. an exceptional set of circumstances, where it was appropriate for the lady to offer counsel to the entire townspeople, to literally save their lives. Such extraordinary scenarios do not arise in the contemporary synagogue with any degree of frequency.] Accordingly, it seems advisable to this student that a yo‘etzet halakhah specifically counsel ladies.

Cf. Iggerot Mosheh, Yoreh De‘ah II, no. 109, where R. Feinstein addresses “a meeting of a society where gentlemen and ladies arrive to discuss, debate and decide in secular matters of the society”. Presumably, the reference is to a corporate executive meeting hall. R. Feinstein avers that “it is not known why in this country we are lenient with simplicity” to allow such mixed events to occur, but since the leniency is already established, the practice can continue even when words of Torah are discussed at the meeting, and only when the assembled group seeks to pray minchah or ma‘ariv must the ladies and gentlemen separate. [R. Feinstein directs the ladies to leave to another room, but obviously – although not mentioned by R. Feinstein – equally acceptable would be to construct a synagogue partition between the ladies and gentlemen within the same corporate executive meeting hall.] Perhaps R. Feinstein considered such an arrangement to be a she‘at ha-dechak gadol, and regarded it as such because people’s livelihood depends on such mixed events. The same cannot be said for the yo‘etzet halakhah position (which is a purely spiritual position created by the synagogue community, unrelated to the livelihood of the members of the community), such that is appears advisable to this student that a yo‘etzet halakhah specifically counsel to ladies.

Cf. the posthumously published Iggerot Mosheh, Orach Chaim V, no. 12, sec. 3, where a responsum attributed to R. Feinstein rules that a lady can give a Torah lecture to gentlemen be-akra’i bilvad, viz. exclusively on an ad hoc basis. This latest responsum is certainly consistent with the she‘at ha-dechak gadol insistence of the aforementioned responsa published personally by R. Feinstein.

See also Sifrei to Deuteronomy 22:16, which states that “from here [we learn] that there is no permission for the lady to speak [before a Beth Din] in the place of the gentleman”. In other words, while we do certainly find in Numbers ch. 27 that the daughters of Tzelofchad spoke before Mosheh Rabbeinu and the entire community (and are indeed praised for the sagacity they demonstrated in their disquisition, as correctly observed by Mrs. Henkin, referenced supra, note 5), in that situation there was no one else who could accomplish the task to plead on their behalf, and so the daughters of Tzelofchad acted correctly. To borrow R. Feinstein’s terminology, we might say that the case of the daughters of Tzelofchad represents a she‘at ha-dechak gadol. By contradistinction, Sifrei to Deuteronomy 22:16 informs us that when a gentleman is equally available to do the speaking (such that there is no she‘at ha-dechak gadol), he should do so. In the opinion of this student, this Sifrei confirms the sentiment that a yo‘etzet halakhah would be best advised to specifically counsel the ladies of the congregation. [Counselling to the

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as a yo‘etzet halakhah who – following the paradigm of a Beth Jacob teacher who does not render any halakhic decisions – will counsel the ladies of the congregation.79

Acknowledgement: I am indebted to Mrs. Linda Bogante, Mrs. Michelle Echenberg, Dr. Arna Fisher, Ms. Beverly Shaffer, R. Henoch Singer and Dr. Mark Wainberg for the insightful guidance they provided during the composition of this essay. Any errors are solely the responsibility of this student.

gentlemen of the congregation can be equally accomplished by the synagogue rabbi, and so he should do so. On the other hand, all actual halakhic decision-making, whether it pertains to the ladies or the gentlemen of the congregation, must be answered by the rabbi, as per Section G of this essay.]

This approach can also be inferred from a lecture that R. Joshua H. Shmidman delivered at his Yeshivat Noam ha-Torah on the subject of Shulchan Arukh Yoreh De‘ah 87:3, where Rema requires that almonds be floating in almond milk in order to permit consuming it with meat (for otherwise the unsophisticated observer will mistakenly think that the Jew is consuming bovine milk with meat). At that juncture, R. Shmidman presented the analysis of R. Yitzchak Yosef, Yalkut Yosef, Issur ve-Heter III (Jerusalem, 5759), pp. 273-274, investigating whether almonds floating in human milk will permit consumption of human milk with meat. [Shulchan Arukh Yoreh De‘ah 87:4 prohibits consuming human milk with meat, again on fear that the unsophisticated observer will mistakenly think that the Jew is consuming bovine milk with meat.] R. Shmidman ruled stringently (like Yalkut Yosef), explaining that it is unthinkable that an intellectually dishonest visual indicator (viz. almonds floating in human milk) could resolve the problematic situation. A student then asked R. Shmidman whether posting a picture of a lady next to the human milk (which serves as an honest and truthful visual indicator) would be acceptable to resolve the problem. R. Shmidman responded in the negative, based on Deut. 23:10.

See also R. Moshe Sofer, Chiddushei Chatam Sofer to Shabbat 21b, s.v. ve-ha-mehadrin, where a similar message emerges regarding ladies being best advised to discharge their obligation to light Chanukah candles through the gentlemen of the house, rather than have the ladies exit into the public domain (when lighting at the entrance of the home). R. Sofer acknowledges that if there is no alternative, the lady can and must exit into the public domain where she will be a celebrity as she lights the Chanukah candles. But, ceteris paribus, it is preferable for a lady to avoid being forced into such a role. On one occasion, when personally consulted by this student regarding Chanukah candle-lighting, R. Shmidman answered that he concurs with this Chatam Sofer.

On the other hand, throughout his career at Congregation Tifereth Beth David Jerusalem in Montreal (prior to his becoming rosh yeshivah of Noam ha-Torah), R. Shmidman invited a scientist – acknowledged for her efforts to prevent the incidence of Tay-Sachs disease – to introduce with a Devar Torah the various scholars-in-residence who would periodically visit. (These events occurred outside of prayer times, such that it was logistically possible for her to address the congregation. See supra, note 23.) Clearly, R. Shmidman envisaged the risk of children acquiring Tay-Sachs disease to represent a she‘at ha-dechak gadol, which therefore required the congregation to hear the Torah gems of wisdom of this scientist. [While representing a distinct quadrant of Halakhah with its own governing parameters, instructive in this regard (in the sense that af al pi she-ein ra’ayah la-davar, zekher la-davar {to borrow the expression from the mishnah in Shabbat 86a}) are the remarks of Arukh ha-Shulchan, Orach Chaim 38, §6 that Michal, daughter of King Saul, was exceptionally allowed to don tefillin because she was renowned to be a tzaddeket gemurah.(*)]

See also the lecture of R. Reiss, cited supra, note 40, where he encourages the existence of a yo‘etzet halakhah position with the specific purpose of counselling the ladies of the congregation. [Parenthetically, R. Reiss’ reliance upon the Ma‘ayan Ganim book (as a halakhic source to encourage the yo‘etzet halakhah position) is challenged by Dan Rabinowitz, “Rayna Batya and Other Learned Women: A Reevaluation of Rabbi Barukh Halevi Epstein’s Sources,” Tradition 35:1 (Spring 2001). Still, even granted that caveat to R. Reiss’ lecture, the balance of R. Reiss’ presentation remains cogent.]

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[(*) = Interestingly, taking this argument to its logical conclusion, a tzaddeket gemurah nowadays would be authorized to don tefillin. Yet, in analyzing the question of a lady donning tefillin, neither R. Moshe Feinstein (Iggerot Mosheh, Orach Chaim IV, no. 49) nor R. Yehudah Herzl Henkin (Shu”t Bnei Vanim II, no. 3) draw this conclusion. (Actually, rather surprisingly, neither of them even mention Arukh ha-Shulchan {-though this does not detract from the greatness of the respective responsa of R. Feinstein and R. Henkin}.) Nevertheless, it seems to this student that Arukh ha-Shulchan’s formulation can be transposed from the context of tefillin to the context of R. Shmidman’s invitation to the tzaddeket gemurah to lecture before the entire synagogue, whereupon the formulation becomes effective.

The distinction between tefillin and public lecturing might be explained in one of several ways: (a) The ability of a lady to don tefillin is not actually the litmus test of her tzaddeket gemurah status. Rather, the ability of lady to don tefillin reflects communal norms of who is considered by the public to be capable of maintaining cleanliness while donning tefillin. In biblical times, communal norms were such that a tzaddeket gemurah was so considered. Today, communal norms are such that a tzaddeket gemurah is specifically encouraged to manifest her righteousness by her refraining from donning tefillin. (b) Arukh ha-Shulchan’s formulation is imprecise, and Michal’s donning of tefillin was not predicated on her being a tzaddeket gemurah (although – parenthetically – no one is disputing that Michal should be granted that distinguished accolade). Rather, Michal did so because she believed that donning tefillin is an obligation that applies 24/7, a position that some talmudic sages espoused but which ultimately is rejected by Shulchan Arukh. (c) Arukh ha-Shulchan’s formulation is imprecise, and Michal’s donning of tefillin was not predicated on her being a tzaddeket gemurah (although – parenthetically – no one is disputing that Michal should be granted that distinguished accolade). Rather, the Pesikta (cited by Tosafot to Eruvin 96a, s.v. Mikhal bat Kushi haitah manechet tefillin) reports that Michal was ultimately asked by the Sages to refrain from donning tefillin. Presumably, Michal complied when she received this request, such that there is no precedent altogether for a tzaddeket gemurah to don tefillin.]

77 Admittedly, with all due reverence manifest before R. Yosef, there is an error in his responsum. He reports that Minchat Chinukh (mitzvah 257) requires a Jew to stand in the presence of a lady Torah scholar. Alas, Minchat Chinukh writes precisely the opposite. Nevertheless, R. Yosef’s conclusion appears to be well taken, viz. that there is a sufficiently formidable school of thought among the poskim to create a safek de-oraita that obligates us to rise in the presence of a lady Torah scholar. Presumably, this is true even if Minchat Chinukh must now be reckoned as an opponent of R. Yosef’s position.

Indeed, R. Yosef appears to have subsequently rectified this misrepresentation of Minchat Chinukh, because in Shu”t Yabi‘a Omer IX, Orach Chaim no. 100, sec. 31, R. Yosef explicitly acknowledges that Minchat Chinukh does not require a Jew to stand in the presence of a lady Torah scholar. [Remarkably, R. Yosef never mentions that this represents a reversal of his earlier erroneous portrayal of Minchat Chinukh.] Even so (or in any event), Yabi‘a Omer concludes that he stands (no pun intended) by his original ruling in Yechaveh Da‘at III, no. 72 that one must stand in the presence of a lady Torah scholar.

78 Presumably, the preferred titled would be “Morah”, simply because that is what is already the custom in the system of Beth Jacob schools that is universally accepted throughout Orthodox Jewry. The only innovation of the yo‘etzet halakhah concept is to create a full-time “Beth Jacob teacher” position whose job is to educate all the ladies of the community, no matter what their age. Indeed, R. Yosef Blau, lecture of May 2, 2010, recorded at <http://www.yutorah.org/lectures/lecture.cfm/746659/Rabbi_Yosef_Blau/Halakhic_Responses_to_the_Changing_Role_of_Women_in_Society>, beginning 51:20 into the recording, remarks

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that the Beth Jacob system has evolved from its origins of being an elementary/secondary school system to a more lifelong system of ladies’ Torah learning. The yo‘etzet halakhah position simply formalizes R. Blau’s observation by providing the lady members of a synagogue community with a permanent Beth Jacob teacher to whom they can always turn. Similarly, R. Yissachar Frand, in a lecture of Jan. 9, 2014, recorded at <http://www.yadyechiel.org>, 35:35 into the recording, states that the lesson to be derived from the career of Deborah the Prophetess is that “the Beit Ya’akov movement – one can say – saved Klal Yisrael.” [If so, ladies who follow Deborah’s scholarly example today should presumably be given the title of a Beth Jacob teacher.]

Although not raised as a possibility by Yechaveh Da‘at, perhaps one can argue that the title “Maharat”, as coined by Yeshivat Maharat, is acceptable (for a Beth Jacob teacher and/or for a synagogue community yo‘etzet halakhah), provided that it be understood that the lady is not a member of synagogue clergy and that she cannot render halakhic decisions, as per Section F of this essay. To that effect, perhaps one can also argue that the title “Rabbah” (currently held by the righteous Dean of Yeshivat Maharat) is acceptable, provided that it be understood that the lady is not a member of synagogue clergy, and that she cannot render halakhic decisions, as per Section F of this essay. [Interestingly, the expression “Ha-Ishah Rabbah” has long been employed in Orthodox Judaism, viz. as the crowning title of the tenth chapter of Tractate Yevamot. Also of interest is that “Maharat” sounds quite similar to “Marat”, which – as observed supra, note 57 – was indeed employed by Teshuvot Maimoniyot as a title of honour for learned ladies. Not quite of the same nature, but nevertheless worthy of mention, is an advertisement in the Canadian Jewish News, Oct. 24, 2013 (Montreal edition), p. 40, inviting readers to attend a lecture entitled “Maha-what? Maharat!” This advertisement points to the potential pedagogical value the honourific “Maharat” possesses in galvanizing ladies together to learn Torah in a Beth Jacob setting, thereby providing the ladies with spiritual enrichment.] On the other hand, R. Student (referenced supra, note 13) and R. Schachter (referenced supra, note 16) claim that there is a danger that use of such titles as “Maharat” and “Rabbah” may be interpreted to be emulating the heterodox. {Cf. R. Steven Pruzansky, “Shared Roles,” Aug. 23, 2013 at <http://www.rabbipruzansky.com>, who argues that ladies and gentlemen “do not have to be the same or do the same things (or even bear the same titles). In fact, it is far better that in [the Holy One, blessed be He]’s orchestra, like [le-havdil] in man’s, each person plays a different instrument and plays it well, but together, to forge the great harmony that [the Holy One, blessed be He] has established for us as our most sublime goal in life.” [N.B. It seems to this student that R. Pruzansky (who is a tzaddik gammur) might have been more effective in communicating his argument had he written “like in humankind’s” instead of “like in man’s,” so as to be semantically inclusive of ladies.]} Accordingly, this student would prefer not to provide any opinion on the matter of which title to employ, leaving it for the poskim to adjudicate.

79 As R. Saul J. Berman, “The Status of Women in Halakhic Judaism,” Tradition 14:2 (Fall 1973), p. 22, comments, “the creative religious energies of Jewish women remain a major source of untapped strength for the Jewish community as a whole, and those energies must be freed.” This student believes that appointing a yo‘etzet halakhah to counsel the ladies of a synagogue congregation – following the paradigm of a Beth Jacob teacher who does not render any halakhic decision – will go a long way toward meeting the important challenge identified by R. Berman.

A synagogue that has already appointed a lady to the clergy [and has now discovered through this essay that a change is required] can remedy the problem by reformulating the lady’s position to that of a non-clergy yo‘etzet halakhah. As for whether the lady may retain the Rabbah/Maharat title, see supra, note 78. [This student hastens to emphasize that there is no retroactive blame being placed by this essay on those synagogues that appointed a Rabbah/Maharat to the clergy before the composition of this essay. The members of those congregations are certainly tzaddikim gemurim, to whose eternal credit redounds the fact that they have caused the

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present expansion of Torah study. See Rashi to Numbers 27:5. With the publication of the present essay, it is certainly to be hoped that the appropriate change will be orchestrated by those synagogues (viz. that in each case, the lady will be transferred [and indeed elevated] to a non-clergy yo‘etzet halakhah capacity). This can be compared to the disciples of Rabbi Eliezer described by the gemara in Shabbat 130a who routinely desecrated the Sabbath for the preparatory steps of a same-day circumcision and were rewarded for doing so, even though the halakhah was ultimately determined in accordance with Rabbi Akiva who forbids such preparatory steps. For an analysis of the process by which the sovereign ruling of a decisor (such as that of Rabbi Eliezer) is transformed from practical to academic, see “The Quest for an Effective Synagogue Partition” (referenced supra, note 2) – footnote 63 and accompanying text in that treatise.]

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