By Rabbi Avrohom Gordimer
Although I would otherwise be hesitant to address a critique by non-Orthodox rabbis of an halachic ruling and the halachic methodology of one of our generation’s most preeminent roshei yeshiva and halachic decisors, the community’s broader need for an understanding and appreciation of the issues at hand compels a response.
Rabbis Ronald Price and Noah Gradofsky posit that, “the textual sources are clear: Women can wear tefillin, that “for Rabbi Schachter, the overriding sociological consideration is avoiding anything that has recognizable roots in the Conservative movement,” and that R. Schachter has departed from the halachic system in his assertion that adjudication of such “sociological” issues must be handled by the generation’s gedolei hora’ah, its foremost halachic authorities.
Let’s examine each of these arguments.
Indeed, whether or not women may lay tefillin is the subject of an age-old halachic dispute. Rabbis Price and Gradofsky referenced those sources which permit women to lay tefillin, and they noted that the Rema (R. Moshe Isserles, whose rulings half a millenium ago have been generally accepted as binding halacha for Ashkenazic Jews) prohibits women to lay tefillin. (Shulchan Aruch: Orach Chaim 38:3 – See also Tos. [Eruvin 96a], who cites and explains opinions in the Pesikta that the Sages objected to Michal, daughter of King Saul, laying tefillin. Shiltei Giborim [Rosh Hashana 19b:3 in Rif] prohibits women to lay tefillin, as does R. Meir of Rotenburg; Targum Yon. [Deut. 22:5] likewise prohibits.)
The Rema’s ruling is not disputed or even questioned by the commentators on Shulchan Aruch, and his ruling has been uniform and universal practice from time immemorial. The Rema’s ruling was strongly endorsed by the Vilna Gaon (who wrote that women “are prohibited” to lay tefillin, in contrast with the Rema’s phraseology that “we must protest should they attempt to do so” – Bi’ur Ha-Gra, Orach Chaim ibid.), and the Aruch Ha-Shulchan (Orach Chaim 38:6) likewise affirmed the ruling of the Rema.
It is thus clear that Rabbis Price and Gradofsky err in their assertion that “the textual sources are clear: Women can wear tefillin.” Unless one rejects a millennium of halachic commentary and codification, this blanket assertion is unfounded, and, on the contrary, the issue of women laying tefillin is one of great halachic dispute, with the accepted halachic consensus, centered around the Rema, firmly being that women may not lay tefillin. (It is interesting that Sephardic poskim never disputed the Rema, and that in Sephardic communities, women do not lay tefillin.)
Based on the ideas expressed in their strident criticism of R. Schachter, Rabbis Price and Gradofsky seem quite comfortable overruling the Rema in this and other cases (“R. Schachter therefore questions how certain rabbis dare to disagree with the ruling of Rabbi Moshe Isserles”), allowing each rabbi to decide as he sees fit based on his own understanding of the sources, regardless of halachic tradition and precedent. This approach is foreign to halachic jurisprudence, and applied consistently according to the logic of its proponents, would overturn the entire halachic system, which is governed by rules of tradition, precedent, and the recognized primacy of certain authorities over other ones. (For some relevant seasonal examples: Ashkenazic Jews, in accordance with the Rema [Orach Chaim 462:4], do not consume matzah ashirah [matzah kneaded with eggs or fruit juice instead of water], even though most Rishonim [medieval halachic authorities] and the Shulchan Aruch permit such matzah, as does the simple reading of the Talmud; Ashkenazic Jewish women are not required to recline at the Seder, in accordance with the Rema [ibid. 472:4], even though a preponderance of Rishonim, and the Shulchan Aruch, disagree; Ashkenazic Jews recite a blessing on each of the Four Cups, as per the Rema [ibid. 474:1, 480:1], even though a literal read of the Talmud and a large host of medieval sources would posit that no blessing be recited. In each of these cases, the Rema adopts a position maintained by some authorities yet disputed by a plurality or majority of others, yet our tradition follows his rulings and has not been challenged. A systematic application of the approach of Rabbis Price and Gradofsky would result in a comprehensive overhaul of halachic observance, with seismic ramifications – in utmost contravention of the approach taken by halachic decisors for millenia.)
Before proceeding, I would like to very briefly present the objection to women laying tefillin as articulated by the Aruch Ha-Shulchan, cited above. The Aruch Ha-Shulchan (and others, including R. Soloveitchik – v. Mi’Peninei Ha-Rav: Tefillin, s. 1) explains that men do not keep their tefillin on all day and they instead limit their tefillin time to the morning prayers, in deference to the comprehensive bodily and mental purity that must be maintained while tefillin are worn. Since men are halachically required to lay tefillin, they have no choice and must keep their tefillin on at least for the morning prayers, after which tefillin are customarily removed in deference to their sanctity, which could be offended should there be a lapse in bodily or mental purity. Women, on the other hand, are not required to lay tefillin, and they therefore should not do so, lest they be subject to a compromised state of bodily or mental purity while wearing tefillin. To lay tefillin and thereby voluntarily expose the tefillin to potential offense of their sanctity due to a lapse in bodily or mental purity is discouraged or prohibited; hence do women not lay tefillin, explain the poskim (halachic decisors). The poskim specifically differentiate between other commandments, such as shofar, sukkah and lulav, from which women are exempt but may nonetheless voluntarily perform, and tefillin, whose voluntary performance may engender a prohibited offense of their sanctity.
Rabbis Price and Gradowsky proceed to contend that “for Rabbi Schachter, the overriding sociological consideration is avoiding anything that has recognizable roots in the Conservative movement”. This represents a misunderstanding of R. Schachter’s ruling, for Rabbis Price and Gradowsky confuse the ruling, which is built on an halachic calculus that gives legal definition to socio-religious factors and views them through the lens of halacha, with sociology itself.
R. Schachter, invoking R. Soloveitchik, wrote that any practice which originated or was adopted by heretical movements in order to undermine Torah belief or practice is prohibited. Hence, since the practice of women laying tefillin was adopted by the heterodox Jewish movements as part of their reforms to traditional Torah practice, in tandem with a whole array of efforts to feminize ritual in a break from Orthodox tradition, Halacha prohibits women to lay tefillin for this reason alone, irrespective of other reasons. This is predicated upon the Talmudic axiom (Sanhedrin 74b) that a social custom becomes strictly prohibited by halacha when that custom manifests itself as an expression of heresy. This is not sociology, but pure halacha, which has applications to important socio-religious conditions, practices and attitudes. Hence, despite the protests of Rabbis Price and Gradowsky, R. Schachter invoked a core halachic principle here and was not expositing sociology.
Rabbis Price and Gradowsky’s final point is that, “Rabbi Schachter’s argument that these sociological decisions are the exclusive prerogative of the gedolei hora’ah is alarming and without any obvious basis.” Aside from the fact that R. Schachter’s ruling is not a sociological decision, the entire foundation of halachic tradition and precedent is based on major and novel halachic issues being adjudicated by preeminent halachic authorities. Whether the issues involve life and death, such as determining evidentiary sufficiency of someone’s demise in a disaster, or if brain death is halachic death, or whether the issues involve sweeping changes in religious practice, such as women laying tefillin, or introducing new prayers, or whether the issues relate to any other very weighty halachic matter, seeking and heeding the counsel of preeminent halachic authorities, gedolei hora’ah, the Torah masters of the generation, is a must.
It is important to note that the words of the Rambam referenced by Rabbis Price and Gradowsky speak of rulings of local batei din (rabbinical courts), and not of the precedent nature of accepted halachic norms. (Readers are encouraged to see for themselves the words of the Rambam, which can be found on pp. 3-4 of volume 1 of the Frankel edition; the Rambam’s position is wholly unrelated to the issue at hand.) Based on the approach advocated by Rabbis Price and Gradowsky and their novel application of this approach to the position of the Rambam, a Judaism that is wholly foreign to us would emerge.
Halachic decision-making is based on a traditional methodology, incorporating factors of binding precedent and the recognized primacy and weight of certain halachic authorities over others. R. Schachter’s ruling reflects this model, whereas abandonment of such a model would result in the end of halachic practice as we know it.
Rabbi Gordimer is a member of the Executive Committee of the Rabbinical Council of America, as well as the New York Bar.