By Rabbi Avrohom Gordimer
The horse is out of the barn. There are no rules anymore. Everything goes. Making it up as you go along.
These are among the clichés that came to mind when reading the many articles penned by those promoting and defending the decisions of two liberal Orthodox high schools to allow their female students to lay tefillin during morning services at school.
Notwithstanding the ruling of the Rema (OC 38:3) that one must protest any attempt by women to lay tefillin, notwithstanding the words of the Vilna Gaon (ibid.) that it is forbidden for women to lay tefillin, notwithstanding the elaboration of the Aruch Ha-Shulchan (OC 38:6) wherein the phrase “we do not permit” is applied to the notion of women laying tefillin, notwithstanding age-old accepted halachic consensus and practice that women do not lay tefillin, and notwithstanding the fact that no major halachic authority was consulted – these liberal Orthodox high schools decided that their female students may indeed lay tefillin.
As the Aruch Ha-Shulchan and others have explained, men do not keep their tefillin on all day and they instead limit their tefillin time to Tefillas Shacharis, due 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 the 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 voluntarily expose the tefillin to potential offense of their sanctity due to such a lapse is discouraged or prohibited; hence do women not lay tefillin, explain the poskim. The poskim specifically differentiate between other mitzvos 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.
Those who recently took to promoting and defending the notion of their female students laying tefillin argued that since even men are distracted with iPhones and secular reading materials while wearing tefillin, it is clear that we no longer adhere strictly to the purity requirement for laying tefillin, and women should therefore be no different:
But since nobody really does it the right way – as the Halacha cautions us – why are women any different from men in this respect? Just look at all the men who are consulting their I phones, or reading, during parts of the davening, while wearing tefillin– if that isn’t hesech ha-da’at, what is? So, essentially, we are all deficient in the scrupulous care of the body and the mind that is necessary for tefillin. If women, therefore, want to take the mitzvah of tefillin upon themselves, why is it any different from Sukkah and lulav and shofar
and many mitzvot that are time-caused which women accept upon themselves and, according to Ashkenazic practice, make brachot over those mitzvot? Why exclude them because of deficiencies in practice which men have too?
Others who recently endorsed the idea of their female students laying tefillin argued that since there are sources that do not object to women laying tefillin, female students who seek to lay tefillin as an expression of their sincere religiosity should not be prevented from doing so:
I felt it appropriate to see this as a legitimate practice albeit different than our communal practice – but one that has halakhic justification. As such, I granted the two girls permission in the context – in a tefilah setting – of a group of girls who were supportive of their practice. I felt it appropriate to create space at SAR for them to daven meaningfully. I explained this to our students in this way: it is a halakhically legitimate position despite it not being our common communal practice. But since there is support for it, I would be willing to create such space in the school. I did not, in so doing, create new policy nor invite any female student who wanted to don tefillin to do so.
Both of the above arguments are fundamentally flawed. While men in the congregation of the rabbi who proffered the first argument above may indeed be distracted with their iPhones and secular reading materials during Shacharis and while donning tefillin, from whence does one receive license to provide a wholesale dispensation from the purity requirements of wearing tefillin and thereby overturn half a millennium of p’sak in order to permit women to don tefillin, based on this newly-created dispensation?
The second argument relies on the fact that there exist halachic opinions that do not object to women laying tefillin; hence, there is a reliable basis for women who have a sincere religious desire to lay tefillin. Although halachic precedent and practice for at least half a millennium dictate otherwise, and although no poskim were consulted, those behind this decision have pointed to sources that justify their decision, while overriding the accepted sources on the matter.
Being consistent with this approach, let’s imagine if the letter from this school’s principal read as follows:
“Some of our students would like to serve ice cream for dessert after our school barbecue, and since there are legitimate sources (e.g. Tosafot in Hullin 105b) which hold that so long as one recites Birkat Ha-Mazon and clears the table after meat, he or she need not wait before then consuming dairy, I am permitting those students who sincerely seek to adopt this halachic approach to have ice cream at our school barbecue immediately after the hotdogs and hamburgers have been served and eaten, so long as the tables of these students are cleared and these students recite first Birkat ha-Mazon.”
Or, if we seek to take an example that highlights the religious aspirations of the students under discussion, we can apply this example:
“In order to enable all students to participate in our school shabbaton, those students who live far from school and have difficulty arriving before Shabbat commences may schedule their travel so as to arrive at school for the shabbaton 15 minutes after sunset on Friday, as there are halachic opinions (e.g. Tosafot in Shabbat 35a, Pesachim 94a; Orach Chaim 261:2) that permit melacha for a considerable amount of time after sunset. Those students who opt to rely on this approach, in their sincere religious desire to be present for our school shabbaton, may do so.”
Is there any fundamental difference between these two hypotheticals and the case of authorizing female students to lay tefillin in reliance on opinions that have not been adopted as halachic consensus and precedent but nonetheless are “out there”, posited by great Rishonim? This approach runs roughshod over halachic process and rabbinic authority, and if taken seriously and applied consistently, will destroy Torah observance as we know it. (Not to mention that the concepts of surrender to the halachic imperative and of connecting with the Ba’alei Ha-Mesorah, as articulated so eloquently and passionately by Rav Soloveitchik zt”l, are wholly incompatible with this entire episode and approach.)
The real question here is Why? Why did these liberal Orthodox institutions feel comfortable abrogating centuries of halachic precedent and unilaterally charting a new course, absent the guidance of any major halachic authorities? Although Rabbi Steven Pruzansky compellingly observed how these cases reflect Orthodox institutions bowing to established non-Orthodox practices, why was it so easy to bow? Why was this same bow so difficult to take a few decades ago, when the same issue arose at one of these same institutions and was handled differently?
The truth is that the past decade has seen boundaries within Orthodoxy breached beyond belief, both in general as well as in terms of specific feminist-oriented issues. Whether it be the repudiation and engineering the deletion of the “She-lo asani” berachos, appealing for, justifying and celebrating gay marriage, ordaining women for rabbinical roles, having female chazzanim for general services, as well as females leading other parts of the service, lowering conversion standards (note the absence of Kabbalas Ha-Mitzvos there and here), and bringing church choirs into synagogues (please also see this video), leadership of the Open Orthodox movement has paved the way for major change in Orthodox practice, such that others could comfortably follow suit. Nearly every Open Orthodox reform to Torah practice has involved the combing of halachic sources in search of opinions that justify the agenda at hand. (Please see here for elaboration.) Rather than approach Halacha with a traditional, objective outlook, bound by precedent and guided by eminent halachic authorities, Open Orthodoxy has pretty much invented a new system, first targeting the goal and then conjuring up the means. Hence, if (Open) Orthodox rabbis can go so far so as to ordain women and discard gender-specific berachos mandated by the Gemara and the Shulchan Aruch, endorsement of women laying tefillin on the part of other liberal-minded Orthodox rabbis is rather easy.
And there is a real nexus to consider. The same rabbis and schools who just came out in favor of women laying tefillin have been very seriously involved with the Open Orthodox movement for quite some time. (See here, here, and here. There is plenty more…) Taking a step back, we are presented with a picture of a greatly expanded Open Orthodox-oriented group taking liberties to modify halachic practice in a major way (even as we acknowledge the religious motivations of the female students involved), while disregarding halachic precedent and failing to seek the input of eminent halachic authorities for the reforms being introduced.
No one knows where this all will lead or what the next innovation may be, but we are witnessing the emergence of a new denomination before our very eyes. It is truly frightening.
Rabbi Gordimer is a member of the Executive Committee of the Rabbinical Council of America, as well as the New York Bar. The opinions in the above article are solely those of the author and do not reflect the opinions of any other individuals or entities.