Rabbi Herschel Schachter shlit”a recently published responsa on two issues that have been hotly debated in the Modern Orthodox communities, and by others interested in those communities in recent weeks and years. The first subject was partnership minyanim, in which roles technically open to women but traditionally not afforded them, are in fact given to women. The second was the question of women wearing tefillin. The responsa are widely available online, and the latter, at least, has been translated into English by a journalist.
I do not have the knowledge or the hubris to disagree with any halakhic decisions of Rav Schachter, one of the most knowledgeable authorities of our time, and a teacher from whose writings I have learned much over the years. However, in these cases Rav Schachter relies primarily on sociological arguments, rather than halakhic arguments, in arriving at his conclusions, and on these grounds, there appears to be more to discuss.
Specifically, the core argument offered by Rav Schachter rests on two tenets: (1) for sociological and political reasons, partnership minyanim and women wearing tefillin are dangerous, and (2) sociological and political concerns are themselves halakhic arguments, and therefore these activities are halakhically prohibited.
There are two reasons why Rav Schachter’s responsa will have basically no effect on the state of these issues – one related to each of the tenets.[1]
The second tenet of the argument is that rabbinic authorities are uniquely fit to judge all matters and are not confined to the legal domain. Rav Schachter explains that ascertaining the law is a more complex process than looking up a specific passage, since the answer is often not where one expects it to be. It should be noted that nowhere in these responsa does Rav Schachter ever explain where the answer to these particular issues may be found. Rav Shachter’s point appears to be that one who has studied enough Torah will intuit the answer to difficult questions may not be able to explain where the answer is to be found, even post facto.
This position seems to reflect the idea known as da‘as Torah and, for the most part, those who are involved in partnership minyanim and women who wear tefillin do not believe in its validity. It is not at all clear that this is a break from tradition; in fact, the concept of da‘as Torah the way Rav Schachter understands it is relatively recent, and many prominent rabbinic authorities in the Yeshiva University and Modern Orthodox camps do not accept such a sweeping claim, either.[2] Elsewhere, Rav Shachter spoken of reach ha-halakhah “the scent of the halakhah,” which only great Torah scholars can detect. But this, too, is a claim to which many would not assent.
Rav Schachter’s argument, therefore, is to re-assert something that is itself a point of contention between supporters and opponents of partnership minyanim and women wearing tefillin. The halakhic manual on partnership minyanim quoted by Rav Schachter clearly affirms that halakha can be found in texts, not people, and denies that “great” rabbinic authorities have special powers. For Rav Schachter to simply assert that this is not true is to beg the question, and this kind of argument will have no effect other than rallying the troops.
The first tenet of the argument – the sociological considerations themselves – raises a more serious issue. WIthin the analysis offered in these responsa, the danger of the Conservative movement looms large, just over the horizon, on our left. This was in fact a serious consideration in the 1950s and 1960s, when Rabbi J. B. Soloveitchik, the revered teacher of Rav Schachter, was offering this type of argument on such issues. It is also the argument that Rav Schachter has been making since at least 1985.[3] (It is striking how many times over the course of the two responsa Rav Schachter asserts that a question is moot because Rabbi Soloveitchik already ruled on it.)
It should be obvious that this kind of argument requires competent cost-benefit analyses of the various options from a sociological perspective. No such analysis is provided in either document. In fact, there is good reason to believe that the Orthodox community would be putting itself in more serious danger by refusing to allow such innovations as partnership minyanim than by allowing them. The people involved in such initiatives are not on their way to Conservative Judaism – unless they are pushed there by responsa that grant them no place in Orthodoxy. These innovative practices, rather than being gateways to other denominations, may actually be halakhically acceptable ways to keep more people in the community, if that is a communal goal. If these practices are judged to be inherently non-Orthodox, that will be the best way to ensure many people go to the Conservative or Reform movements.
It is no doubt obvious to everyone that these two issues are merely symptomatic of the much broader, and much more significant issue of gender roles in the Orthodox community. So let me put it bluntly: the biggest threat to the stability of the Orthodox community is the inability to accommodate to the changed social realities of modern society in ways that are halakhic yet innovative. If the Orthodox community cannot find space for its women to take on meaningful roles of religious leadership in thought, Jewish law, and practice, then the best, brightest, and most motivated women and men will find a spiritual home elsewhere. Our community’s rabbis, along with our other leaders, must take up this issue in order to steer the Orthodox community in a direction that is both faithful to tradition while ensuring a vibrant future.
In sum, my point is not to criticize the conclusions of the response; there are very serious halakhic issues involved in both the wearing of tefillin by women and keriyat ha-Torah in partnership minyanim. Instead, my contention is that no matter how cogent the argumentation, these responsa will not change the situation at all. The notion that rabbis, even great rabbis, have special powers to craft public policy has already been rejected by the women who put on tefillin, the Orthodox rabbis and other men and women who support them, the women and men who attend or support partnership minyanim, and many other more traditional Modern Orthodox people. And it remains eminently possible to disagree with Rav Schachter’s sociological analysis of the dangers facing our community.
These responsa, then, are the equivalents of a politician’s speech to rally the faithful. Those who anyway objected to the innovative practices will point excitedly to these texts as support for their already-held position. Those who supported the practices will deny that these texts have any authority. And all that will have been accomplished is a rise in the rhetoric of condemnation and denunciation that all too often plagues our community. For our community’s sake, more discussion and open dialogue, and less condemnation, is needed in the near future.
Aaron Koller is a professor of Jewish Studies at Yeshiva University.
[1] The dynamics of some of these issues have recently been discussed by Ronit Irshai in a penetrating article: “Dignity, Honor, and Equality in Contemporary Halachic Thinking: The Case of Torah Reading by Women in Israeli Modern Orthodoxy,” Modern Judaism 33 (2013), 332-356.
[2] Lawrence J. Kaplan, “Daas Torah: A Modern Conception of Rabbinic Authority,” in Rabbinic Authority and Personal Autonomy (ed. Moshe Sokol; Orthodox Forum; Northvale, NJ: Jason Aronson, 1992), 1-60.
[3] See the discussion and sources in Adam Ferziger, “Feminism and Heresy: The Construction of a Jewish Metanarrative,” Journal of the American Academy of Religion 77 (2009), 494-546.
By Aaron Koller
