Partnership Minyanim III

Guest post by R. Dr. Barry Freundel

Rabbi Barry Freundel is the rabbi of Kesher Israel congregation in Washington, DC, Associate Professor of Rabbinics and Liturgy at Towson University, Vice President of the Vaad of Washington and head of the conversion committee of the Rabbinical Council of America. His books include Why We Pray What We Pray: The Remarkable History of a Jewish Prayer and Contemporary Orthodox Judaism’s Response To Modernity.

I. Introduction

I am here responding to two long posts, written in very different ways on Moreorthodoxy; one from Chaim Trachtman and R. Zev Farber’s post responding to my response to him (original paper here: link). This will probably be my last comment on this issue unless something dramatic happens; first because I need to get back to my day job and second because this dialogue has revealed the critical elements in this debate that make this not a difference of opinion about halakha but a contact point in a disagreement that is and has always been schismatic when it appears in Jewish history. My answer here is long and detailed as there is much to be said in answer to what these two gentlemen have posted. For those who don’t want to get that far into the weeds, I urge you to read the sections in bold that appear towards the middle and end of this post that indicate why this is a much more serious issue than others would have us believe.

I begin with Dr. Trachtman and say again: I have read what is out there on the subject of partnership minyanim and nothing rises to the level of a thorough halakhic analysis, using an Orthodox epistemology, of this practice. I have explained why in my last post when I quickly reviewed what exists and that remains true. I will say more below. I am sorry if that offends anyone but the claim is accurate.

II. Precedent

Dr. Trachtman states that R. Mendel Shapiro, in his article on women receiving aliyot, allows women to lead certain parts of the service that are not Devarim She-bi-kedushah. But in the Edah Journal article in question (which is online here: link ), R Shapiro writes: “From the Orthodox point of view, it is clear that halakhah cannot endure the sort of egalitarian service that is now commonplace in the Conservative and Reform movements. By all Orthodox accounts, Halakhah prohibits the inclusion of women in the requisite minyan of ten as well as the mingling of the sexes during the synagogue service. But while these prohibitions appear both formally and ideologically to be insurmountable, there is one portion of the synagogue service—qeri’at ha-Torah (the public Torah reading)—where to bar women’s participation may not be absolute.“ I have heard that he now supports Partnership Minyanim (if that is not true, my apologies), but it is not in writing in the article Dr. Trachtman cites.

In that article R. Shapiro, in fact, takes up Devarim She-bi-kedushah twice; in footnote 90 and in footnote 107 and in neither place does he take up the issue of women leading services. Unfortunately, as we shall see, this is not the only place where Dr. Trachtman does not quote accurately. What Dr. Trachtman does do is compound the problem by referring to this claim of women leading parts of the services that are not Devarim She-bi-kedushah as R. Shapiro’s interpretation even though R. Shapiro doesn’t say it in this piece.

On the other hand R. Shapiro does use the Meiri as a basis for his conclusions about women and aliyot. I have mentioned this Meiri several times and no one on the other side has responded though the text presents a very significant problem for proponents of partnership minyanim and for anyone who wants to see in the articles on women and aliyot a justification for women leading services. Again, Meiri allows male children to get aliyot (he does not discuss women), and then explicitly says that this same rationale cannot be used to justify male children leading services which is not permissible (for the record R. Shapiro does not quote this last part of Meiri’s teaching). Dr. Trachtman, as everyone else on the other side, does not deal with this issue at all.

Dr. Trachtman then reminds us that prayer is not homogenous because prohibitions about allowable conversation and interruption differ at different parts of the services. That is certainly true, but does anyone in halakhic literature relate this to women serving as Chazzan? Does this have anything at all to do with chiyyuv and tefillah be-tsibbur, which Dr. Trachtman himself recognizes as the critical halakhic concerns in this discussion, in a way that relates to our issue. Dr. Trachtman provides no posek or classic commentator who suggests such a connection.

It is precisely the prevalence of these newly created halakhic parallels, that have no antecedents in our literature, used to defend Partnership Minyanim that supports my contention that we are not operating in an Orthodox halakhic universe. I would go further and say that if there were no Partnership Minyanim to defend no one would have ever drawn this parallel between when one can or cannot respond to Kedushah (for example), and whether women can lead parts of the service. Again it is the use of this type of “conclusion first, evidence second” approach that makes me challenge these attempted justifications in the way that I do.

II. Leading

Dr. Trachtman then cites the practice of underage boys leading parts of the service in some synagogues. He also correctly says that I indicated a dislike for the practice. All true. But if this were all I said I would be guilty of precisely what I am challenging defenders of Partnership Minyanim of doing in their approach. Dr. Trachtman neglects to cite the rest of what I say about this subject. I did a search of the literature and found only one teshuvah on point from Rav Uziel. Rav Uziel also expresses concern about the practice and then defends it as chinukh. But chinukh is not applicable to a post-Bar Mitzvah age woman. All of this is in the article and again indicates that there is no support for Partnership Minyanim in the literature while again reflecting Dr. Trachtman’s unfortunate tendency to misquote in ways that serve his purposes.

Dr. Trachtman concludes this part of his post by saying: “This variability in the sanctity of the tefilla provides a halakhic basis for decisors to justify the inclusion of women in select portions of the prayer service.” Even assuming that the ability to interrupt or not interrupt as well as the presence of children as chazzanim indicates a difference in sanctity (which Dr. Trachtman does not support from sources), how does that relate to the issues of tsibbur and chiyyuv that are the crux of the issue? Again Dr. Trachtman shows no such connection from sources.

Dr Trachtman then asks: If ten people on a flight to Israel decided to say tefillat ha-derech together does that imply that that he (meaning I) would prohibit a woman from leading the recitation? The entire thrust of my article, citing multiple sources, indicates that the answer to that question is unequivocally “yes”. I am sorry if that troubles him, but that is the unanimous conclusion of the sources.

So, too, he is correct that women cannot lead Tehillim at communal recitations of Psalms. Again that is what the sources say. He then cites me as seeing Tefillat Rabim as a form of Tefillah be-tsibbur which he recognizes would in fact preclude women from leading. But here again we have inaccurate citation. R. Freundel didn’t say this. R. Freundel cited Rav Kook as saying this–and he undoubtedly does. Now Rav Kook is an icon (deservedly so) in Modern Orthodox circles. Does Dr. Trachtman challenge his authority on this issue without even producing someone who disagrees?

III. Methodology

There follows a truly remarkable sentence. It reads: “The fact that women regularly participate in and lead services like this in many Modern Orthodox settings suggests that the community has a broader conception of tefilla be-tsibbur than Rabbi Freundel does.”

I am not at all sure I understand the import of this sentence. Is there a responsa or posek who has validated this practice? Is Dr. Trachtman unaware of the frequently encountered phenomenon in halakhic literature wherein a practice begins to spread in the Jewish community and is then subject to Rabbinic review which may in fact yield negative conclusions, sometimes even hundreds of years after the practice begins? Is any practice engaged in by some subset of the community, in this case for likely no more than a couple of decades at most, suddenly halakhically consequential to the point where it can be used to challenge multiple halakhic sources? Finally, considering that those who are defending Partnership Minyanim challenge my assertion that the unanimous, hundreds of years old recitation of Kabbalat Shabbat in Ashkenazi circles is consequential, finding someone who cites this recent change in practice in some circles as being dispositive is remarkable, to say the least. Again, I do not see this comment as adhering to an Orthodox epistemology of Halakhah.

Dr. Trachtman then goes on to state that “rabbinic classifications change”. I first heard this claim from some Conservative Rabbis at the point in time when they began to include women in a minyan, and in fact I’d be curious to know why Dr. Trachtman doesn’t carry his logic on this point to that obvious conclusion. He cites the example of the deaf-mute (not the deaf as Dr Trachtman states) being permitted into halakhic realities formally precluded by halakhah. He then even goes half–way to explaining why this is happening but fails to follow through to recognize that this says nothing about the process of changing the status of women.

Backing up for a second, this claimed change in the status of the deaf-mute is far from universally accepted. Second, those who suggest such a change do so based precisely on the equation of the deaf-mute with the child and the mentally deficient in halakhic sources. Before the advent of things like sign language and cochlear implants the deaf-mute, like the child and the shoteh, was functionally non compos mentis. Without developing the ability to communicate someone born this way did not have the communication capacity for normal development of the brain. Even if the condition developed later in life, since many people could not read and even more could not write, the cone of silence that tragically descended on such an individual made them functionally mentally incompetent. With the development of hearing aids and sign language as well as other technologies the silence has been breached and the incompetence has gone away for many such individuals. The argument for inclusion of the deaf-mute is that this is a change precisely supported by the inclusion of the deaf-mute with the child and the mentally deficient in halakhic literature because just as a child grows out of this state and the mentally deficient can be healed of his mental illness so too the problem of the deaf-mute’s mental incompetence is subject to alteration.

Now, how does this apply to women? The lack of chiyyuv and the fact that women do not count in a minyan are well established in halakhah. This is not an affliction that can be healed or out of which one can grow–so how is this parallel in any way to the deaf-mute? Certainly the non-Orthodox schools have changed their way of operating when it comes to women, but no recognized authority or source from the Orthodox universe accepts that change and it, as is well known, is one of the clear demarcating lines that take one out of the Orthodox community. Here is not the place to discuss why this is so–but it undoubtedly is. And if it isn’t then Partnership Minyanim should all become egalitarian services immediately.

I will discuss Dr. Trachtman’s claims about the Rabbis and social-inclusion again towards the end of this post, but his claim of new categories for women that emerge from some putative rabbinic concern for “social inclusion” that does not appear in any classic halakhic source takes us further and further down the same road. This is not Orthodox halakhic methodology by any stretch of the imagination. This is not objectively searching the sources to find as objective a conclusion as one can achieve. This is imposing non-halakhic categories on halakhah and looking for support anywhere one can find it or create it whole cloth for a question that one has already decided.

Dr. Trachtman’s own words “a new class of women should be created”, are indistinguishable from statements made by Conservative Rabbis on this subject and tell us how far we have moved from anything that can remotely be called Orthodox. I think it is very important to the conversation that Dr. Trachtman has been direct enough and honest enough to tell us explicitly that this is the case. His concluding sentence in this paragraph, “Partnership Minyanim reflect an acceptance of this position by a group of men and women in Israel and around the world”, really says it all. Some people have accepted this development. But the sources do not support it and as such those men and women are not operating in an Orthodox universe.

IV. Errors

Dr Trachtman’s next paragraph is rife with errors. He says: “Chazal did not generally require hard statistical evidence to justify changes in practice.” In fact that is false. The Talmud (and the Rambam codifies this) tells us that before a gezeirah was promulgated the Rabbis needed to make sure that more than 50% of the populace would accept it because if that did not occur the decree would be null and void. Also Dr. Trachtman cites this entire discussion out of context. I wasn’t talking about general considerations. What I said was that if one argues that things should change because of Kevod Ha-briyot one needs to know how widespread the feeling is that one’s kavod has been violated. Is Dr Trachtman suggesting that even one such complaint is enough to change halakhah? Is he suggesting that it needs to be 100% of people complaining? If neither of those two are the standard then what is it and how do you measure it?

The next claim is: “the standard phrase used by the Rabbis is ‘go out and look.’” This is a remarkable claim since this “standard phrase” appears only 5 times in all of talmudic literature and in later literature is used to confirm the accepted majority practice, not to support a new way of doing things. It is also not used to challenge a halakhic analysis, only to decide between equivalent options that have roughly equal halakhic support. Hardly the case here.

As we approach the end of his post Dr .Trachtman again does not report what I say accurately. He says: “If we give such credence to current practice, that undermines one of the key criticisms of Partnership Minyanim, namely that the fact that it was not done in the past is the strongest halakhic proof that is it impermissible.”

I don’t know who raises that criticism but it certainly isn’t me. My chief criticisms are that the sources unanimously and in many different ways preclude the things that are done at Partnership Minyanim and that the defenders of this practice are not following Orthodox halakhic epistemology in their defense of it. To challenge my position by inventing a claim that I do not make is simply unacceptable.

V. Teshuvot

Turning now to R. Farbers much more appropriate post, he cites three sources that do not accomplish what he claims. R Broyde’s comments are labeled by the author as “musings”, not as a final decision. He certainly does not do a thorough analysis of the sources.

R. Dov Lior, a remarkably controversial figure because of a number of his halakhic decisions that I doubt R. Farber is comfortable with, says, without citing any sources, that a chazzan for Kabbalat Shabbat does not fulfill the prayer obligation for anyone in the kahal. I don’t disagree. His conclusion that therefore a child can lead (only occasionally) is one I disagree with, but he may simply be following Rav Uziel discussed in my article. Nonetheless his limitation to only having this done occasionally suggests that he, as I, does not see this as optimum. That is a challenge to Partnership Minyanim not a support for it. In any case his teshuvah does not say that the chazzan here is simply setting the pace and choosing the tunes. In fact he says very little. And if he is following Rav Uziel then he is using a completely different rationale for why a child as chazzan is allowed.

The third teshuvah in part supports me. It says that in Ashkenazi practice there must be a halakhically acceptable chazzan for every part of the davening. This would include Pesukei De-zimrah and the end of the services which would severely limit the activities of Partnership Minyanim. In this part of the teshuvah he cites R. Moshe Feinstein.

He then says that Kabbalat Shabbat is not part of tefillah and so a child (again not a woman) may lead, but as with the last teshuvah, he cites no sources. These three texts simply reinforce the claim that I have made again and again. Contemporary discussions of the issues surrounding Partnership Minyanim cited by its defenders do not rise to the level of a thorough halakhic analysis of the question.

R. Farber calls my position regarding a prayer recited in shul on a regular basis becoming a tefillah be-tsibbur or tefillat rabim a chidush. Now I may have been the first to bring this to a discussion of Kabbalat Shabbat but what I say is precisely what R. David b. Barukh Kalonymus Sperber says in his responsa cited in my article, and it follows the precedent of Magen Avot that the Talmud itself cites. I did not create this claim out of nothing as R. Farber suggests and there is no classic source that offers anything different. So, at most we have a few contemporary writers who cite no texts and do not do a thorough analysis who then argue with a point that I make but still do not accept Partnership Minyanim.

VI. Chazzan

R. Farber accurately mentions my discussion of the different customs of whether or not to have a chazzan for Kabbalat Shabbat and Pesukei De-zimrah, but fails to mention that in Ashkenazi circles where Partnership Minyanim originate and I believe universally exist, there is always a chazzan for Kabbalat Shabbat and almost always for Pesukei De-zimrah. Since, as I say in my piece, these sections of the davening are at most a kiyum of tefillah betsibbur or tefillat rabim, one might well be allowed to decide that on a particular week or in a particular community they will forego that opportunity and so will do without a chazzan when they recite these parts of the prayer (this is more difficult in Ashkenazi circles as just discussed). This does not allow for using an unacceptable chazzan if the decision is made to make this a tefillah be-tsibbur. (All this appears in the article). Also I cite Sefer Ha-Ittim who says that when one opts to recite an optional prayer one must then follow all the rules as if it is a required prayer. That would again preclude a woman as chazzan.

R. Farber then claims, without a source in support, that: “One may then ask: Why is the prevalent custom for these services to have a shaliaḥ tzibbur? I think the simple answer is that we are accustomed to praying in this fashion, and it makes the experience feel more “community-like” if someone sets the pace and chooses the tune for everyone. I called this (non-halakhic but prevalent) practice shaliaḥ tzibbur type II.” But this not explain the presence of the tallit on the chazzan after sunset which can only be done in tefillah be-tsibbur, nor the name shaliach tzibbur which implies communal prayer nor the Tosefta passage that excludes women from any chazzan role.

I join R. Farber as a Star Trek fan but I disagree as to his rabbinic answer concerning Kabbalat Shabbat as led by a hologram. My answer would be: You have fulfilled the obligation to recite Kabbalat Shabbat but you have not accomplished its recitation as tefillah be-tsibbur because you did not have a proper chazzan. Your prayer was therefore of a lower quality than you thought it was. That is a very different answer than he suggests, but one that is in keeping with the sources.

VII. Kevod Ha-Tsibbur

R. Farber then takes us through a discussion of Kevod Hatsibbur, which I specifically rejected as a concern when it comes to prayer, as no source mentions it in a prayer context. Again, as with Dr. Trachtman, a paper tiger which I did not create is set up to be knocked down, but it has nothing to do with me. (In fact R. Aryeh Frimer does use this concept to challenge Partnership Minyanim and he formulates it very differently than R. Farber does–but that is for R. Farber and R. Frimer to debate).

R. Farber then takes us back to R. Shapiro and tries to bootstrap him into our discussion again in response to the issue that I not only didn’t raise but that I explicitly rejected (i.e. Kevod Hatsibbur). R. Mendel Shapiro’s article simply has no place here unless you misquote him (see above), or misquote me.

VIII. Legitimacy

What follows next is a remarkable statement. R. Farber says correctly that I question the defenders of Partnership Minyanim because they do not follow “legitimate Orthodox halakhic epistemology.” He then claims “this is an exceedingly subjective claim”. Since when is the methodology of halakhah “subjective”? Such a claim negates the very essence of the Orthodox enterprise and removes any shared language or decision making capacity from the halakhic process while substituting a post-modernist rubric that undermines the integrity of our sources and decisors. If the method is subjective then no conclusion is better than any other. If that is what Partnership Minyanim are all about then we certainly are in an unrecognizable place for anyone who sees tradition as halakhically binding. As with Dr. Trachtman I think we have here another statement that sadly reveals what this discussion is really all about.

Further I have been explicit and provided example after example (there is one more to come), of claims, arguments, positions and methodologies that do not conform to Orthodox halakhic methodology, Ranging from committing the genitive fallacy to creating halakhic categories whole cloth to drawing parallels that are not source based and so on. The halakhic system has rules and unfortunately the defenders of Partnership Minyanim are, I am truly sorry to say, violating them with impunity. And this discussion has only made that even more explicit than it was before.

Finally R. Farber asks why I don’t provide people to the left of me on this issue the courtesy of seeing their position as Orthodox. (He again misquotes me by saying I don’t see them as Orthodox–I make no such statement but I will modify his question to what I do say).

There are two answers to this question. If on analysis of a halakhic question I believe, and believe I have demonstrated repeatedly, that what others are saying is not simply a disagreement about the reading of a text or a reflection of earlier debates found in halakhic literature but rather a dramatic departure from accepted methodology that has already blurred the lines that demarcate the Orthodox community and preserve its meaning and message, there is simply no room for courteous acceptance of the other opinion. Even if I were to accept the idea that Partnership Minyanim are only a small change (which is not true given its unprecedented inclusion of women as prayer leaders), the dynamic this methodology creates carries us to other places that are outside the bounds of Orthodoxy.

Again my article cites Elliot Dorf’s use of Prof. Sperber’s writings on women’s aliyot to justify his approach to homosexuality and the acceptance of gay commitment ceremonies. That is a natural consequence of stepping beyond the methodology of halakhah. The newly established precedents will simply lead to undermining other halakhic realities because halakhah has organic connections that make a conclusion in one place impact dramatically elsewhere. It isn’t that it impacted the discussion on homosexuality, it could be other things. It is the fact that the precedent leads to other legal consequences that are unacceptable. Sorry, there is just no room here for the courtesy that R. Farber requests.

IX. Epistemology

Second there is a very significant–perhaps critical–epistemological difference here that must be stated and here is the place to do so. I thank my friend Mattew Hoffman (Dr. Trachtman’s neighbor in New Rochelle) for this formulation. It has to do with the relationship between emotions and halakhah. For me, I begin with halakhah and once I gain an understanding of what halakhah says, I will then ask whether and how that halakhic structure can accommodate the feelings, emotions, desires or needs that the issue I am investigating engenders.

What I hear and read in these two posts and in so many others who have approached me on this topic is precisely the opposite. Emotions come first and halakhah comes second. For me halakhah is the queen and emotion the supplicant. For others emotion is the mistress and halakhah the maidservant.

This difference is critical. When people start the conversation with “women feel disenfranchised what can halakhah do for them?”, the dynamic becomes one of trying everything and anything to find “solutions”. That has been on display here repeatedly. On the other hand the initial approach should be “let us study halakhah and see objectively what it says without a pre-conceived agenda” and once that’s done we can ask is there room for women’s tefillah, a woman shul President, Partnership Minyanim, etc.? If we do business this way the answers will be far more authentic to the system and will preserve its value and integrity. No they don’t have to be the same as my answers, but whatever the answer they will be based on a common language and methodology of halakhic analysis and not on artificially constructed hermeneutical theoretical structures that show the colors of the rainbow but, like so many soap bubbles burst on contact with our texts that do not support them.

The excitement of women at partnership Minyanim is real, the pain of disenfranchisement for some women is unquestionable, the sociological realities are the sociological realities and the categories that many moderns use to make sense of the world pervade our schools and our media. Modern Orthodox Jews are meant to struggle with these things and bring them into balance with a complete commitment to authentic halakhah. That will result in an engagement with modernity that will be very fruitful in which our answers to what modernity brings will sometimes be yes, sometimes no and sometimes yes with modification. But turning halakhah into a custom tailor who can shorten and lengthen, take out or let in the seams in response to everyone’s feelings and society’s contemporary mores will make halakhah into an infinitely flexible window dressing that threatens to make what is and should be its unique guidance into a mirror of contemporary ethics and morality and nothing else.

That is already happening in some quarters with Partnership Minyanim because of how they are defended have fueled that dynamic. Sadly that has been on display in this discussion and people need to realize this fact. I would also claim that R. Farber, to a somewhat lesser extent, and Dr. Trachtman have really said so explicitly.

So R. Farber I appreciate the respectful tone, but your arguments and those of others do not respond sufficiently to what I have written and do not follow Orthodox methodology.