I. Labels and Methods
A recent paper on women and prayer offers us the opportunity to explore the confusion caused by post-denominational terminology. In particular, the label “halakhic” masks radically different attitudes towards halakhah that yield significantly different religious behavior.
A recent paper titled “Egalitarianism, Tefillah and Halakhah” by Rabbis Ethan Tucker and Micha’el Rosenberg (henceforth “the authors”) addresses women’s roles in public prayer (link – PDF). The authors are essentially post-denominational, although they both have Orthodox ordination in addition to academic training in JTS, and a recent article referred to Rabbi Tucker as “non-mainstream Orthodox” (link). Right now we will examine the second of two parts in the paper, and I think we will find an approach to halakhah that Orthodox Jews would consider radical.
The following elements can be found in this section:
- Attributing halakhic positions to sociological and historical attitudes
- Relying on minority views
- Extending those minority views based on changed sociological conditions
- Dismissing lightly the views of prominent Rishonim
- Ignoring centuries of unanimous and/or majority halakhic precedents
I am not accusing the authors of being dishonest. To the opposite, they are very explicit about their methodologies and serious about their goals. The only issue is that I reject some of their methodologies.
II. Children and Minyan
With that in mind, let us begin. The Gemara nevers states that women cannot count for a minyan for prayer, except for one place according to some commentaries (Berakhos 45b; see Tosafos, ad loc. sv. ve-has). Rishonim, however, routinely stated that women cannot count for a prayer quorum, and this been repeatedly codified (e.g. Mishneh Torah, Hilkhos Tefillah 12:3; Shulchan Arukh, Orach Chaim 55:1). The Rishonim offer different reasons for this ruling, based on the Talmudic scriptural derivations of the requirement for a minyan. This point is important. Of the various derivations of the requirement for a minyan, all but one (martyrdom) are asmakhta’os, post facto associations rather than derivations (Ran, on Rif, Megillah 23b sv. ve-ein nosim). The law was assumed and the Sages attempted to find a scriptural hint. Rishonim then built on top of these asmakhta’os to further explain the halakhah as they understood it.
The authors focus their attention on a minority view, on which they build their theory of women and minyan. The Gemara (Berakhos 47b) asks a series of questions regarding the tenth member of a minyan. Can we count a child as the tenth? A Torah ark (aron)? The Gemara concludes that we cannot. However, Rabbenu Tam (quoted in the Rosh there and in other commentaries) suggests that the Gemara answers “no” to all of the questions except for the first, regarding a child. Therefore, nine men can count a child as the tenth and recite all prayers that require a minyan. Rabbenu Tam was too hesitant to put it into practice himself but, in theory, allowed it.
III. Two Aspects of Minyan
According to Rabbenu Tam, there are two aspects of minyan. The divine presence descends onto a gathering of ten Jews — anyone commanded in mitzvos, including children and slaves. However, because of “yekara di-shmaya“, honor of Heaven, we only count adult males in the minyan. Counting one child with nine men, Rabbenu Tam suggests, is not a slight to yekara di-shmaya and therefore, in theory if not in practice, is allowed.
While Rabbenu Tam did not allow this practice himself, others did. There is an ongoing dispute whether, in a time of great need, one child may be included as the tenth in a minyan (perhaps while holding a Torah scroll). The Shulchan Arukh (Orach Chaim 55:4) rules that even in a time of great need one may not count a child and most later authorities follow suit (e.g. Chayei Adam 30:1). However, the Magen Avraham (55:5) permits it in a time of great need.
IV. Women and Minyan
The Mordekhai (Berakhos ch. 7 no 158) quotes Rabbenu Simcha who applied Rabbenu Tam’s leniency to a woman, as well. While there are some authorities who allow reliance on Rabbenu Tam’s position in a time of great need, I am not aware of any who follow Rabbenu Simcha.
The Ba’al Ha-Ma’or (on Berakhos 35b) goes further and allows counting multiple children in a minyan, as long as they aren’t the majority. Ramban (Milchamos, ad loc.) argues and, to my knowledge, no authority rules like the Ba’al Ha-Ma’or. If we combine the positions of Ba’al Ha-Ma’or with Rabbenu Simcha, we could count multiple women in a minyan. However, to my knowledge no authority has ever done this.
The authors do not really go in this direction. Instead, they take Rabbenu Tam’s theory of minyan and apply it to the majority of Rishonim. Rabbenu Tam, the great dialectician, found two aspects to minyan — Jewishness (commanded in mitzvos) and honor of Heaven. The authors suggest that everyone agrees with this duality. They only disagree with the definition of honor of Heaven. According to Rabbenu Tam, counting one child or slave is not a dishonor to Heaven. According to the majority, it is. Therefore, today, when counting women toward a minyan involves no slight to the honor of Heaven, it is entirely acceptable.
This is extremely problematic because there is no hint of this in any writings, even those subsequent to Rabbenu Tam. Furthermore, as mentioned above, many Rishonim offer scriptural derivations for the exclusion of women from minyan. Even if, as is likely, those derivations are asmakhta’os, they demonstrate an inherent exclusion and not an ancillary concern of honor of Heaven. The Rishonim, if you take them at their word, accepted the exclusion of women and others as a rule without exceptions.
The authors are fully aware of this. They propose that the Rishonim ruled based on sociological bias: they considered women to be non-citizens and excluded them from minyan for that reason. The scriptural associations? They are weak and cannot be accepted at face value. I would hesitate before dismissing explicit reasons offered by Rishonim, if only because I might be wrong. For example, one reason offered, based on Berakhos 54b and Kesubos 7b, is that minyan requires a kahal and women are not included in it. The authors argue against this idea and dismiss it. However, R. Yehudah Henkin anticipated these questions, answering them and upholding this position (Bnei Banim 4:5: – link).
But even if you reject the argumentation of the Rishonim, that does not mean that they did not mean it seriously. Yet, the authors assert that the vast majority of Rishonim ruled out of reasons that can be explained sociologically and attempted to justify it, weakly, with other explanations.
In doing this, the authors not only invoke non-halakhic methodologies, they also dismiss the vast majority of Acharonim. There is a wide literature about the exclusion of women from minyan. Rabbi Aryeh Frimer wrote a comprehensive article on the subject (link), describing the three different approaches among authorities. The authors not only ignore these approaches but dismiss the authorities who directly address their question. Instead, they quote obscure Acharonim like R. Avraham Chayim Rodrigues (Orach La-Tzadik), R. Nassan Nata Landau (Ura Shachar) and R. Yaakov Emden (OK, I’ve heard of him). Compare that with the Frimer article, which contains a long list of commentators and authorities who serve as the pillars of Jewish law.
For example, the Levush (Orach Chaim 55:4 – link) explains the majority view as requiring full obligation in mitzvos to count for a minyan. He does not say that counting anyone who is not fully obligated is a lack of honor of Heaven. The authors are aware of this (and other explanations) but dismiss them as later distortions of the true view of the Rishonim.
It is important to note that the proposal to count a woman as the tenth member of a minyan is over 700 years old. However, while counting a child has been debated, counting a woman has been roundly rejected by a wide consensus of authorities — even when there is otherwise no minyan in a city! According to the authors, the concept of honor of Heaven was considered so vague that the authorities considered counting a woman to be a violation but not a child. However, according to the Rishonim themselves and the Acharonim who followed them, women are inherently excluded on halakhic, not sociological, grounds.
I point all this out because denominational labels have meaning. While every denomination contains a spectrum of views, the labels are still helpful in identifying general approaches. The authors’ historical/skeptical approach — associating halakhic rulings with historical and sociological causes, dismissing the explanations offered by authorities, building on minority opinions and ignoring consensus views — is that typically associated with the Conservative movement. Calling it “non-mainstream Orthodox,” “post-denominational” or simply “halakhic” is unhelpful because it minimizes the important intellectual influences underlying the approach. Please do not misunderstand me. I am dismissing the authors’ position for the reasons explained above, not because of a label. But I ask you whether labels are really as meaningless as some today claim.