Partnership Minyanim Revisited

by R. Aryeh Frimer and R. Dov Frimer (A printable PDF of this essay is available here: link)

Partnership Minyanim Revisited: A Response to Rabbi Ysoscher Katz

I. Introduction

The question of women receiving aliyyot is briefly discussed in a baraita cited in the Talmud Megilla 23a, which reads:

תנו רבנן: הכל עולין למנין שבעה, ואפילו קטן ואפילו אשה. אבל אמרו חכמים: אשה לא תקרא בתורה, מפני כבוד צבור.

The Rabbis taught: All are eligible for an aliyya (hakol olin) among the seven [Sabbath aliyyot] – even a minor and even a woman. However, the Rabbis declared: a woman should not read (lo tikra) from the Torah – because of kevod tsibbur (communal honor).

Although this source presumably suggests that women are theoretically eligible to receive an aliyya and read their portion, in practical terms, however, this was ruled out because of kevod ha-tsibbur. Indeed, the above negative ruling of the Talmud is echoed in the Tosefta Megilla, ^[1]Tosefta Megilla (Lieberman edition) 3:11. Maimonides’ Mishne Torah ^[2]R. Moses ben Maimon, M.T., Hilkhot Tefilla, sec. 12, parag. 17., and R. Joseph Caro’s Shulhan Arukh ^[3]R. Joseph Caro, Shulhan Arukh, O.H., sec. 282, parag. 3. and – in their wake – in all subsequent codifiers.

Nevertheless, R. Mendel Shapiro ^[4]See (a) R. Mendel Shapiro, “Qeri’at ha-Torah by Women: A Halakhic Analysis,” The Edah Journal 1:2 (Sivan 5761), 1-55 – available online at http://tinyurl.com/35d9bx. This article was … Continue reading and R. Prof. Daniel Sperber ^[5]R. Daniel Sperber, Darkah shel Halakha – Keri’at Nashim ba-Torah: Perakim bi-Mediniyyut Pesika (Jerusalem: Reuven Mass, 2007). have attempted to build a case for women’s aliyyot at a normative halakhic service. In essence, they argue that the change in women’s sociological status in contemporary society should impact upon the contemporary halakhic relevance of kevod ha-tsibbur – such that bona fide aliyyot, with their attendant blessings, should no longer be out of bounds for women. These lenient rulings were soon put into practice in various “Egalitarian halakhic” or “Partnership” minyanim, despite the fact that many leading Torah authorities found them unacceptable. ^[6]For an extensive list of critiques and discussions, see reference 7a below and note 27 therein. At a conference of the Israeli religious Zionist rabbinic organization “Tzohar,” a halakhic forum, … Continue reading

II. Frimers’ Critique of Women’s Aliyyot

In the Winter 2013 issue of Tradition, we published an extensive analysis on the question of Partnership Minyanim with the primary focus on the question of women’s aliyyot (the English version is, henceforth, referred to as “Frimers”). ^[7](a) Aryeh A. Frimer and Dov I. Frimer, “Women, Kri’at haTorah and Aliyyot (with an Addendum on Partnership Minyanim)”, Tradition 46:4 (Winter, 2013), 67-238, online at … Continue reading The question that we addressed was whether or not such innovations lie soundly within the parameters of halakha. Our critique of women’s aliyyot was four-pronged.

(1) Failed Ba’al Korei-Oleh Interaction: The Talmud’s (Megilla 23a) suggestion that women could in theory receive an aliyya assumes a system in which each oleh/olah reads the Torah aloud by and for themselves (Frimers, Section I) – and it was based on the fulfillment of this reading task that the Torah reading benedictions were recited by the oleh. However, for the past millennium, we have had a bifurcated system in which one congregant, the ba’al korei, does the mitsva action (reads from the Torah aloud), while another, the oleh, recites the mitsva benedictions (Frimers, Section VI). The only way the oleh can properly recite the berakhot is if the mitsva action of the ba’al korei is transferred to him via shome’a ke-oneh (Frimers, Section II). But this mechanism requires that both the assister and the assistee are obligated in the given ritual. Yet, all known Rishonim and the overwhelming consensus of Aharonim maintain that women are freed from any obligation in keri’at ha-Torah (Frimers, Section III). Hence, in our present bifurcated system, women can serve neither as olim nor as ba’alei keri’ah. The benediction will be rendered a forbidden berakha le-vatala (blessing in vain) since there is no transfer mechanism that will combine the benediction to the mitsva action of reading (Frimers, Section VI). Indeed, R. Joseph B. Soloveitchik ^[8]R. Joseph B. Soloveitchik, mi-Beit Midrasho Shel ha-Rav, Hilkhot Keri’at ha-Torah, sec. 135, no. 13, 31; Shiurei ha-Rav ha-Gaon Rabbi Yosef Dov ha-Levi Soloveitchik zts”l al Inyanei Tsitsit, … Continue reading discusses this explicitly:

“…Nowadays, [that the oleh does not read aloud], we must resort to shome’a ke-oneh from the ba’al korei to the oleh. …[This is] because the law requiring three or seven keru’im [individuals called to the Torah], is actually requiring three or seven kore’im [readers aloud] – or at least that the reader himself should recite the benedictions. Hence, in order to invoke shome’a ke-oneh, we require a reader who is obligated. A minor or a woman is hence invalid nowadays de jure – unless they recite the benedictions over their own reading.”

(2) Kevod ha-Tsibbur – We turned next (Frimers, Section VII) to kevod ha-tsibbur noting that the accepted position of halakhic authorities throughout the generations, Rishonim and Aharonim, negates the view that kevod ha-tsibbur has anything to do with social standing. To the best of our knowledge, no such suggestion has ever appeared in the Halakhic literature until recently. Thus, while mamzerim are among those lowest in Jewish social standing, they can receive Aliyyot. This is because they, like other males, are obligated in keri’at ha-Torah. ^[9]Rema, O.H., sec. 282, no. 3; Levush, sec. 282, no. 4; Shulhan Arukh haRav, sec. 282, no. 8; Bah, O.H., sec. 135; Mishna Berura, sec. 135, note 38; Resp. Petah ha-Devir, II, Kuntres Aharon le-Petah … Continue reading Other posekim maintain that despite their low social status, male non-Jewish slaves may be able to receive an aliyya as well (Frimers, note 241). Clearly, social standing is not the criterion for an aliyya.

So what then is kevod haTsibbur all about? Most authorities maintain that this consideration stems from the fact that women are not obligated in public Torah reading. This lack of obligation expresses itself in one of two ways: either through considerations of tsni’ut (modesty), or via zilzul ha-mitsva (disparaging or belittling ones halakhic obligation). The Tsni’ut School argues that since women are not obligated in keri’at ha-Torah, they should not unnecessarily be at the center of communal religious ritual. The synagogue is a place where we try to sanctify our thoughts, and make particular efforts to avoid all sexual distraction. The concern here is for unnecessarily being at the center of communal religious ritual. The second Zilzul ha-Mitsva School maintains that the men, who are obligated in keri’at ha-Torah, should be the ones fulfilling the mitsva – not those that are not obligated. To act otherwise reveals that these men do not value their mitzva obligations – reflecting zilzul ha-mitsva. This analysis also leads to the conclusion that in the case of women’s aliyyot, a community cannot choose to set aside kevod ha-tsibbur. A congregation cannot simply say: “Hazal may have been concerned about tsni’ut or zilzul ha-mitsva and, hence, forbad women’s Aliyyot – but we aren’t.”

(3) Kevod ha-Beriyyot – As to Prof. Sperber’s novel suggestion that kevod ha-beriyyot (honor of the individual) can defer kevod ha-tsibbur, our survey (Frimers, Section X) of the responsa literature demonstrates that kevod ha-beriyyot cannot be invoked indiscriminately. Indeed, the posekim make apparent that there are defined rules which preclude Prof. Sperber’s approach. Hence, the use of kevod ha-beriyyot in the case of women’s aliyyot is simply erroneous.

(4) Safek Berakha le-Vatala – Finally, we have attempted to demonstrate that our presentation of the various relevant issues is rooted in the dominant position expressed by the leading halakhic authorities of the generations. Moreover, our analysis perforce leads to a halakhic conclusion that precludes women’s aliyyot as practiced today in partnership minyanim. If so, the recitation of birkot keri’at haTorah would contravene the prohibition of reciting needless or inappropriate benedictions. Even could a case be built, based upon minority opinions, which would allow women’s aliyyot, that would be insufficient to eliminate the substantial halakhic doubt surrounding the issue. Accordingly, it would still be prohibited to recite the benedictions pursuant to the halakhic principle of safek berakhot le-hakel; such a practice could well involve invoking God’s name in vain. ^[10]For a general discussion of safek berakhot lehakkel, see sources cited in Aryeh A. Frimer and Dov I. Frimer, note 7a, supra, n. 217. The posekim do not permit reciting birkat ha-shevah in cases of … Continue reading

III. R. Ysoscher Katz’s Substantive Comments

In February 2016 a critical review of our paper appeared, penned by R. Ysoscher Katz, Talmud Department Chair of Yeshivat Chovevei Torah. ^[11](a) R. Ysoscher Katz, “Aliyat Torah l’Nashim,” (in Hebrew) available online at http://tinyurl.com/hmbnsvj. Republished in She’eilot u-Teshuvot mi-Bet Midrasho shel Yeshivat Chovevei Torah, … Continue reading From an analytical perspective, there is little new in his review, since R. Katz – by his own admission – uncritically adopts the analyses of Rabbis Shapiro and Sperber. In the second part of his comments, however, R. Katz deals at length with the question of halakhic methodology to which we will relate towards the end of our present response.

First some comments about style: R. Katz opens his piece by being very laudatory about the thoroughness of our research and documentation. But he then uses these kudos to exempt himself from citing references to support his sweeping but unfounded claims – stating simply that all his sources are already cited in our paper. But to which of the references is he referring? Does the reader not deserve to know the precise source and authority of the positions taken? This would certainly seem required if one – like R. Katz – is attempting to contravene or at least modify a Talmudic ruling, cited authoritatively in the Shulkhan Arukh and subsequent codes, and apparently adopted by the practice of millennia. Thus, R. Katz summarizes the view of Rabbis Shapiro and Sperber and concludes: “This is, more or less, the approach of a majority of the posekim who have addressed this issue. Each one tries to prove in one way or another why the concern with the dignity of the community no longer seems justified.” Since there are no references cited, it is most difficult to know who these “majority of the posekim” are. Similarly, R. Katz’s asserts sweepingly and unequivocally: “There is no halakhic issue with congregational Torah reading for women, nor any need to be concerned with kavod hatzibbur, when taking part in this kind of minyan. It is permissible for women to be called up to the Torah, to read from it, and to recite its blessings. From a halakhic perspective, great poskim have put forward strong arguments permitting such practices.” With no documentation provided, it is hard to judge whether those authorities referred to are indeed acknowledged posekim and of the “great” stature R. Katz claims for them. He himself acknowledges that not every Rabbi, not even published scholars, are recognized as bona fide posekim. To whom, then, is R. Ysoscher Katz referring?

Most strident is his charge that our article is: “to quote the prophet Nahum (2:11), ‘empty, void, and waste’”. He does this without informing the reader that he – for no apparent reason – has chosen to totally ignore (and repeatedly so) our extensive analysis of the basic and advanced sources related to the following central themes: the mechanism of shome’a ke-oneh and keri’at ha-Torah; the functioning of the ba’al korei and his interaction with the congregation and oleh; the meaning and rules of kevod ha-tsibbur and kevod ha-beriyyot; and why all this refutes the very conclusions he has simply taken for granted. R. Katz leaves his readers – and us – clueless as to why he totally avoided confronting the critical arguments we present. Moreover, R. Katz has, with one fell swoop, nullified the scores of carefully documented interviews we held with a very broad spectrum of gedolei ha-posekim who shared of their time to clarify difficult issues, formulate guiding principles, and evaluate the conclusions we had drawn. These contemporary Torah giants were asked to share with others their considered position on women’s aliyyot, partnership minyanim and subsidiary issues. In dismissing our paper as “empty, void, and waste”, and simply refusing to address the complicated issues analyzed and presented therein, R. Katz exhibits the temerity to wave off – with no explanation or argumentation – the considered reasoning of some of the pre-eminent Torah scholars of our generation. The latter are the authorities whom rabbis themselves approach when they have questions concerning serious family issues including gitten, aguna, nidda and mamzerut, and life and death situations. This hubris surprisingly expresses itself once again in his recent, unsubstantiated and unsupported statement that: “There is absolutely no halakhic reason to prohibit women from getting an Aliyya…” ^[12]“Women Aliyyot: Scholars Weigh In,” Times of Israel, May 31-June 2, 2016, with Channa Lockshin Bob, Rabbi David Brofsky, Miriam Gedwiser and Rabbi Ysoscher Katz, available online at: … Continue reading Intellectual honesty and humility in the analysis of a novel halakhic practice demands, at a minimum, that the recognized experts in the field be consulted in order to test and check one’s analysis and conclusions.

We would note that not only did R. Katz ignore the contents of our article and our refutation of the arguments of Rabbis Shapiro and Sperber, but he then allowed himself to make the following curious affirmative statement: “Over the course of sixty pages in the English version of their article …, they do not raise a single argument or conceptual refutation against these views.” Even a superficial read of our paper is sufficient to appreciate the fallacious nature of the charge.

To refute R. Katz’s arguments point by point would require us to republish relevant sections of our paper. Nevertheless, we will highlight several of his leading contentions and our refutation. Thus, like R. Shapiro, R. Katz assumes that kevod ha-tsibbur is completely dependant upon social standing. As already noted, this understanding is nowhere mentioned in the Rishonim or Aharonim. What is more, this interpretation is undermined by the fact that a mamzer, and a non-Jewish slave – according to many views, can be called to the Torah (Frimers, notes 49 and 241).

Like R. Sperber, R. Katz posits that the beraita’s statement, “However, the Rabbis declared (aval amru hakhamim): a woman should not read from the Torah – because of kevod tsibbur” is not a prohibition, but merely sage advice. R. Katz goes so far as to posit that this is the “simple meaning” of the text. Yet no commentary or code understands this term in this “simple” way. Moreover, his assertion that this is the “simple meaning” is rather surprising. As we point out at length (Frimers, note 19b), in the vast majority of all other cases where the phrase “aval amru hakhamim” appears, it clearly means that the rabbis prohibited such action – and this is how it is cited in the codes. ^[13]In Chapter 8 of “Aliyyat Nashim la-Torah,” note 11d supra, R. Yonatan Rosenzweig discusses the phrase “aval amru hakhamim” at length and concurs with our conclusions delineated herein. R. Katz acknowledges this, but argues that in the case of Megilla 23a, aval amru hakhamim “obviously” means advice. Why this is so – is totally beyond us. ^[14]R. Dov Linzer, has similarly commented: “[I]n his teshuva on women’s aliyyot, Rabbi Katz puts forth his readings and analyses of texts central to his halakhic arguments without providing … Continue reading Indeed, the Tosefta ^[15]Note 1, supra. states “We do not bring a woman to read to the public,” which is a clear language of prohibition. R. Katz’s consequently proceeds to suggest that this phrase means that we do not bring her from outside the synagogue. He fails, however, to explain why? Can’t it equally mean that we do not bring her from the ezrat nashim (women’s section)? And why should there be any difference between outside or inside the synagogue. ^[16]R. Dov Linzer, note 11c supra, writes: “Similarly, R. Katz gives us a novel interpretation of a Tosefta; to wit, that the concern of having a woman read from the Torah was that it would have … Continue reading This novel proposal contradicts “the simple meaning” of Megilla 23a and runs contrary to the understanding of the Tosefta by its acknowledged master, R. Saul Lieberman. Under such circumstances, R. Katz needs to galvanize significantly stronger support for his interpretation than merely the term “obvious.”

Further evidence that the term “aval amru hakhamim” does not “obviously” mean advice can be deduced from the commentary of the 13^th century Provence Rishone, R. Menachem haMeiri. ^[17]Meiri, Kiryat Sefer, Ma’amar 5, sec. a. The latter writes with regard to the baraita in Megilla 23a: “All are eligible for an aliyya among the seven – even a woman and a minor…; however, the Rabbis strongly objected (mihu) to a woman [receiving an aliyya] because of kevod ha-tsibbur.” In addition, R. Joel Sirkis, the noted 16^th century author of the Bayit Hadash (Bah) and one of the acknowledged pillars of halakha, as well as a host of other leading scholars, ^[18]R. Joel Sirkis, Bayit Hadash (Bah), Tur, O.H. sec. 53, s.v. “ve-Ein memanin.” This also the view of the many other leading posekim, see: Aryeh A. Frimer and Dov I. Frimer, note 7a, supra, n. 254 … Continue reading maintain that a community cannot opt to set aside its honor. This school opines that when the Rabbis of the Talmud forbad certain actions because of the “honor of the community,” they were setting universal congregational standards by which all had to abide. This is apparently the opinion of Maimonides and Semag (Frimers, notes 259-260) regarding women’s aliyyot. This certainly rules out the suggestion that mere “advice” is involved. What is surprising is that R. Katz himself cites the Bah. Yet rather than rethink his unbridled support for the unsubstantiated “advice” proposal, he turns around and challenges the validity of R. Sirkis’s pesak and that of the other sages who concurred with the latter’s ruling. One can only conclude that what is “obvious” to R. Katz was not so evident to many of the leading Torah scholars of past generations.

It would seem that R. Katz has either not read our article fully, or has simply misunderstood it. Thus, in a recent short popular publication for JOFA’s “The Torch,” he summarizes our article by writing: ^[19]R. Ysoscher Katz, “Contextualizing the Conversation about Women’s Aliyot in the Orthodox Community,” The Torch (JOFA); available online at: … Continue reading “They believe that the person getting the Aliyah is doing so on behalf of the community; the community fulfills their obligation through them. Therefore, since women are not “obligated” with the “mitzvah” of reading from the Torah they cannot fulfill the mitzvah on behalf of others.” In fact, this is not at all what we wrote. . Contrary to R. Katz’s misunderstanding, we emphasize the critical interaction between the oleh and the ba’al korei – not the oleh and the congregation – as mentioned in point (1) of sec. II, above. In addition, there are two other major points in our paper (numbers 2 and 3 of sec. II, above) which R. Katz totally fails to address – which is rather surprising if he indeed took the time to read our paper fully before preparing his response.

We should note that in our attempt to understand Megilla 23a, we too treat at length (Frimers, Section IV) the fundamental question raised by R. Katz. To wit: how does the Talmud permit a woman (absent kevod ha-tsibbur) or a minor – who are free of a keri’at ha-Torah obligation – to receive aliyyot and read for themselves and the community. Having the unobligated assist others in fulfilling their obligation contravenes an explicit Mishna: “Anyone who is not obligated cannot assist others in fulfilling their obligation.” ^[20]“Kol she-eino mehuyyav ba-davar, eino motsi et ha-rabbim yedei hovatam.” Mishna, Rosh ha-Shana 3:8 (29a); see also Berakhot 20b. See also “Berakhot,” Encyclopedia Talmudit, IV, 291-316, at … Continue reading However, as the reader of the article will see, this issue is not at all new; it has already been extensively discussed by the commentaries of earlier generations – and satisfactorily resolved.

Oblivious of our analysis, R. Katz argues that there can’t be any fundamental problem with a woman receiving an aliyya or alternatively reading aloud from the Torah – since the Rabbis themselves permitted this in Megilla 23a. But as we have demonstrated above [section II, point (1)], this was only true if the olah does both tasks incumbent upon her – namely, to recite the benedictions and read aloud from the Torah. Under the presently bifurcated system, however, where the oleh does not read aloud and the ba’al korei does not recite the benedictions – women are fundamentally (me-ikar ha-din) forbidden to receive aliyyot. Furthermore, as the baraita makes clear, even were a woman to do both tasks (as described in Megilla 23a), an aliyya would still be prohibited – at least le-khatehilla, if not be-di-avad – because of kevod ha-tsibbur. ^[21]R. Katz makes this error repeatedly, most recently in his summary of our position in his response to the crtiticism of R. Aryeh Klapper. See R. Ysoscher Katz, note 11i, supra.

R. Katz cites the minority view of Magen Avraham who seems to imply that Torah reading is obligatory on women. R. Katz writes: “The Frimer brothers’ (shlita) argument, in note 80, that the word ‘obligated’ does not necessarily imply an obligation is so baffling that it does not call for a response.” This is yet another example of many in which R. Katz lacks the requisite humility. Firstly, as cited in our Tradition paper, this suggestion is not that of the Frimer Brothers but rather of many outstanding halakhic authorities including, inter alia, R. Hayyim Joseph David Azulai (Hida), R. Jehiel Michel Epstein (Arukh ha-Shulhan) and R. Ovadiah Yosef. ^[22]See: Aryeh A. Frimer and Dov I. Frimer, note 7a, supra, n. 80 therein. In addition, R. David Tamar cites more than seven cases where “hayyav” in halakhic sources clearly does not refer to “obligatory” but “righteous” behavior (minhag hasidut). ^[23]Ibid. That R. Katz nonetheless feels it unnecessary to respond, is in and of itself baffling – and telling.

R. Katz then goes on to discuss whether the benedictions for Torah reading are birkot ha-shevah (benedictions of praise), birkot ha-mitsva (blessings prior to fulfilling a mitsva) or of some unique character. This too is thoroughly treated in our paper (Frimers, Section Vb), and once more, R. Katz ignores or is totally unaware of what we have written. He apparently thinks that we are objecting to women reciting birkot ha-Torah because they are not obligated. Had he read our article carefully, he would know that that is not the case. Kevod ha-tsibbur aside, our objection is to a woman who only recites the berakhot, or only reads the Torah aloud as would a ba’alat keri’a [see above sec. II, point (1)]. If she does both tasks, namely, recites the benedictions and reads from the Torah aloud for herself, her benedictions would then not be for naught. As for the practical permissibility of an aliyya under such circumstances, that would depend on an analysis of kevod ha-tsibbur (Frimer’s, Section VII).

IV. R. Katz’s Methodological Comments: The Authority of “Rov Posekim”

Towards the conclusion of the article, R. Katz turns from issues of substance to those of halakhic methodology. Firstly, R. Katz repeatedly posits that we discuss the various issues without carrying out any fundamental, let alone creative, analysis. Not only is this accusation astonishingly erroneous as noted above, it supports our contention that he barely read our piece. What is more, as we carried out our multi-step analysis, we carefully documented our arguments and buttressed our conclusions by demonstrating that they represent the overwhelming position of the codifiers over the generations, and the judgement of the acknowledged posekim of the modern period (rov posekim).

Secondly, R. Katz accuses us of adopting “a unique and innovative approach, what I refer to as the quantitative, or ‘Sinai’ method, as opposed to the more widely-accepted, conceptual ‘oker harim’ method (see Berakhot 64a and Horayyot 14a).” Once again, this statement is fundamentally inaccurate – as is obvious to anyone who is acquainted with halakhic literature. While R. Katz cites the Talmudic sources for these colorful terms, he fails to inform the reader that the topic under discussion is the appointment of a Rosh Yeshiva. “Sinai and Oker Harim, which takes precedence?” The Talmudic debate is whether it is better to appoint a Yeshiva Head who is a ‘Sinai’, i.e., one with wide-ranging knowledge and an expert in the sources; or perhaps, an ‘oker harim,’ one who is less knowledgeable but has strong analytic skills, is to be favored.

R. Katz’s presentation would lead one to think that it is the later approach which is preferred and more widely-accepted. Nonetheless, the Talmudic conclusion is to the contrary: “Sinai takes precedence, for everyone has need for he who gathers the grain”. Thus the Talmud specifically prefers the methodology that R. Katz negatively dubs “unique and innovative”. This is not merely the conclusion of the Babylonian Talmud, but the Jerusalem Talmud as well. ^[24]Jerusalem Talmud, Horayyot, 3:5 – “ha-Sodran kodem le-pilpilan”, see: Penei Moshe and Mareh Panim ad loc. Interestingly, the noted 19^th century Galician scholar R. Solomon Kluger maintains that this preference for Sinai was true only in Talmudic times, but not so in the modern period. ^[25]R. Solomon Kluger, Glosses to the Pri Megadim, O.H., Eshel Avraham, sec. 136 [end]. However, Rabbi Ovadiah Yosef convincingly documents that R. Kluger’s view was rejected by scholars throughout the generations. ^[26]Rabbi Ovadiah Yosef, Resp. Yabi’a Omer, I, Introduction, no. 7. Either way, it is clear that the Sinai methodology is neither unique nor innovative. To the extent that R. Katz’s characterization of our halakhic methodology as “Sinai” is correct, we were merely following the dictates of the Talmud. We, however, believe that our presentation combined both methodologies; that of “oker harim” reinforced with the strength of “Sinai.”

R. Ysoscher Katz then quotes at length sources demonstrating that one is not bound by the majority position of decisors unless the disputants thrash out their arguments face to face and vote – as was done in the Sanhedrin or in the Jewish courts. ^[27]See also Encyclopedia Talmudit, IX, Halakha, note 236. Otherwise, the debate is not closed and anyone is free to adopt the minority view should he so desire. Consequently, argues R. Katz, the concept of “rov posekim” bares no significant force in pesak halakha; our presentation of the view of the majority of authorities on a particular issue carries little compelling weight, if any at all.

But R. Katz’s argument is problematic for many reasons. Firstly, he is remiss in not mentioning that leading posekim, such as Radvaz, ^[28]R. David ibn Zimra, Resp. Radvaz, IV, sec. 116 (1187). Also cited to this effect by R. Zvi Hirsch Chajes, Mishpat ha-Hora’ah, Chap. 5. Shakh, ^[29]R. Shabbetai Kohen, Siftei Kohen, Y.D. end of sec. 242, “Hanhagat Hora’ot be-Issur ve-Heter.” Also cited to this effect by R. Zvi Hirsch Chajes, Mishpat ha-Hora’ah, Chap. 5 and Encyclopedia … Continue reading and others ^[30]Encyclopedia Talmudit, IX, Halakha, note 234 suggests that Rashi, Bava Kama, 116a, s.v. “Ein hakhra’a,” also maintains this view. maintain – contrary to the sources cited by R. Katz – that the majority opinion holds halakhic sway, even if the disputants do no argue face-to-face. In addition, even were we to accept that face-to-face debate is required for the majority view to be conclusive, ^[31]R. Ovadiah Yosef, Resp. Yehaveh Da’at, V, Kelalei Maran ha-Shulhan Arukh, p. 306, indicates that this is not the general view of the codifiers. nevertheless, the consensus view of scholars (rov posekim) is repeatedly invoked throughout the halakhic literature as a very strong indicator of the more compelling and controlling view.

Many sources, including the very ones cited by R. Katz, ^[32]For additional sources, see: R. Jacob Chaim Sofer, “be-Shel Soferim Halakh Ahar ha-Meikel, u-Sefeka de-Rabanan le-Kula,” Zekhor le-Avraham (Holon), 5751, pp. 202-218. explicitly emphasize the important role played by rov poskim in pesak. Thus, R. Moshe Isserles (Rema, 1520 – 1572), ^[33]Rema, to Shulhan Arukh, H.M. 25:2. based upon the responsum of R. Solomon ben Abraham Aderet (Rashba, 1235 – 1310), ^[34]R. Solomon ben Abraham Aderet, Resp. Rashba, I, sec. 253) rules as follows:

One should not say: “I will rule in accordance with whomever I want in a matter of dispute, and if one does so it is a ruling which is a lie. Rather, if he is a great scholar and can make a determination based upon proof, he is permitted to do so. And if he is not a person of such stature…when it is a ruling concerning matters of the forbidden and the permitted, and it is a Toraidic prohibition, one is to be stringent; and if it is a rabbinic matter, one is to be lenient. But only if the disputants are of equal stature; however, one may not rely on a the rulings of one who is of lesser stature against one who is greater in wisdom and students, even in dire circumstances…Similarly if there is one versus many, we follow the many under all circumstances…. ^[35]See: R. Moses ibn Habib, Get Pashut, klal 5 (beginning) and R. Haim Hezkiah Medini, S’dei Hemed, Ma’arekhet Yud, Klal 35 (Friedman Edition, III, 63), who demonstrate from numerous sources that … Continue reading

This ruling of Rashba and Rema is universally accepted by all halakhic authorities. So, for example, R. Samuel ben Moses de Medina (1505 –1589) indicates that “since the majority of decisors seem to agree to being stringent, it is proper to rule stringently even in Rabbinic matters.” ^[36]R. Samuel ben Moses de Medina, Resp. Maharashdam, Y.D., end sec. 90, s.v. “u-le-Inyan”. R. Benjamin Aaron Solnik (1550-1619), rules: “Even without definitive proof, if we see that the majority in number and weight of the authorities are on one side, we rule like them, for the halakha follows the majority.” ^[37]R. Benjamin Aaron Solnik, Resp. Masat Binyamin, sec. 62. R. Moses ibn Habib (1654–1696) in his Get Pashut (referenced by R. Katz) writes: “When one has a conclusive proof supporting one of the decisors, he can rule like him and not be concerned about those who disagree… But if he can’t bring conclusive proofs, or nowadays … when we do not rely on our proofs to disprove our predecessors…, we determine what is the view of the majority of decisors (rov ha-posekim), pillars of pesak, and rule like the majority – be it lenient or stringent.” ^[38]R. Moses ibn Habib discusses this issue at length in Get Pashut, kelal 1 and 5. This quote comes from kelal 5, s.v. “Amnam.” Also cited by R. Chaim Hizkiyahu Medini, Sdeh Hemed, kelalim, … Continue reading

R. Zvi Hirsch Chajes (1805-1855) in his Mishpat ha-Hora’ah (also brought by R. Katz), drawing upon R. Moses ibn Habib’s Get Pashut, explains: “Nevertheless, where the majority is not in the presence of all disputants in a common session, there is a special rule for deciding the law and that is “Yahid ve-rabim, halakha ke-rabim” – one vs. many, the law is like the many. [Under such conditions] this is not a [decisive] biblical majority, but rather a rule of logic – for it undoubtedly makes sense that the many are more likely [than the few] to approximate the truth.” ^[39]R. Zvi Hirsch Chajes, Mishpat ha-Hora’ah, Chap. 5. See also: R. Raphael Berdugo (1747 – 1821), Mishpatim Yesharim (also cited by R. Katz), sec. 238.

Rabbi Joseph B. Soloveitchik (1903 – 1993) explains that the halakhic principle of following the majority (“aharei rabim le-hatot;” Exodus 23:2) contains two components: one is as a tool to clarify matters of doubt and the other that the view of the majority is determinative. ^[40]R. Josph B. Soloveitchik, Iggerot ha-Grid ha-Levi, Chap. 1 Hilkhot Mamrim, secs. 2-3 (end) ) Even where the halakhic, procedural requirements necessary for a majority view to be deemed determinative are lacking, the majority view still remains compelling for purposes of halakhic clarification. The requirement that the disputants argue face-to-face is a necessary requirement for the majority view to become determinative. Nonetheless, even where the disputants do not argue face to face and, therefore, the majority view is not determinative, the majority view still remains compelling to clarify which is the better view to follow.

Anyone current with the halakhic literature is well aware that posekim of the Eidot ha-Mizrach, in general, and former Chief Rabbi, R. Ovadiah Yosef (1920 – 2013) , in particular, were wont to amass large encyclopedic collections of sources to assist their analysis and in resolving halakhic issues. This approach to pesak finds clear expression in the Hungarian halakhic tradition as well, the very tradition in which R. Katz himself was educated and trained. So, for example, R. Eliezer Judah Waldenberg, author of Resp. Tsits Eliezer (1915 – 2006), like his rabbinic colleague R. Ovadiah Yosef, ^[41]The two sat together for many years as rabbinical court judges both on the Regional Rabbinical Court of Jerusalem and on the Rabbinical Supreme Court of Israel. would cite extensively from the halakhic authorities of the generations in order to demonstrate that his conclusion represents the consensus view. The Satmar Rebbe, R. Joel Teitelbaum (1887 – 1979) invokes the concept of “rov rishonim” and “rov aharonim” almost exclusively in his fervent defense of the Satmar practice to follow the “sunset of Rabbenu Tam,” rather than the sunset of the Geonim and the Gra as practice by most communities. ^[42]R. Joel Teitelbaum, Resp. Divrei Yoel, I, O.H. sec. 18. R. Isaac Jacob Weiss (1902 – 1989), the Rav Av Bet Din of the Bet Din Zedek of the Edah ha-Hareidit of Jerusalem, summarizes the halakhic principle as follows: “This that we rule in accordance with the majority of posekim, constitutes a determination, for they (i.e. the majority) properly ascertained the Halakha. But one who is a great scholar, who knows how to rule based upon proof, may do so even if he rules in accordance with the minority of posekim… Similarly, those who are not of such stature, who follow the majority view…do so because if the majority are of such an opinion they, in all likelihood, properly ascertained the Halakha.” ^[43]R. Isaac Jacob Weiss, Resp. Minhat Yitzhak, V, sec. 51.This responsum was written to R. Weiss’s mechutan, the noted Swiss posek, R. Jacob Breisch.

Consequently, even had we done what R. Katz accuses us of doing – merely tallying the authorities on the subject (which we did not) – it certainly would not justify his dismissal of such an approach, and thus our conclusions, as “unique and innovative”.

R. Katz is certainly correct that there are scholars – primarily of the Lithuanian tradition – who allowed themselves greater independence in their piskei halakha, than many of their peers. Notable examples from recent generations include the world renowned halakhic authorities, R. Abraham Isaiah Karelitz, (1878 – 1953) known as the “Hazon Ish”, and R. Moses Feinstein (1895 – 1986). But one should not be misled into thinking that the Lithuanian tradition did not accept the halakhic principle of “rov posekim”. On the contrary, the noted Gaon of Vilna, R. Elijah Kramer (1720 – 1797), in commenting on the above cited ruling of Rema, writes: “In many places we find that in cases of one versus many, the halakha is in accordance with the many. And one who examines carefully will find that this is correct – be it for leniency or for stringency, for monetary matters or religious matters. And this is what Rema means when he says; ‘under all circumstances’.” ^[44]R. Elijah Kramer Be’ur haGra, H.M., sec. 25, no. 18.

The authoritative Lithuanian posek, R. Jehiel Michel ha-Levi Epstein (1829-1908), in his classical code Arukh ha-Shulhan, Hoshen Mishpat also rules in a similar fashion: “If there is a dispute among the posekim and the judge is not a great Torah scholar so that he is capable of deciding the matter with proofs, and a general consensus in accordance with one particular opinion on the matter has not been established, how should one act?…However, where the many authorities dispute the one, go after the many whether in being lenient or in being stringent”. ^[45]R. Jehiel Michel ha-Levi Epstein, Arukh ha-Shulhan, H.M., sec. 25, no. 12. Rabbi Epstein reiterates this ruling once again in Yoreh De’ah. ^[46]Arukh ha-Shulhan, Y.D., sec 242, no. 63.

R. Abraham Isaiah Karelitz too writes: “For the majority opinion is always the established law”. ^[47]R. Abraham Isaiah Karelitz, Hazon Ish, O.H., sec. 112, no. 10 (end) and Y.D., sec. 150, no. 6 (end). Similarly, The Chief Rabbi of the Land of Israel, R. Abraham Isaac haKohen Kook summarizes the halakhic principle as follows: “In many places we find quoted the great principle: ‘One versus many: the law is with the many’, and this is the full import of the verse ‘Aharei rabim le-hatot’. There are, however, those who say that the essence of the verse is only where the one and the many are together in one place, like the Sanhedrin. Nonetheless in cases where one disagrees with the many, the accepted law is in accordance with the many – under all circumstances.” ^[48]R. Abraham Isaac haKohen Kook, Be’er Eliyahu, H.M. sec. 25, no. 18. See also his Shabbat ha-Arets, Introduction, Chap. 10.

If so, the question arises as to how the Lithuanian posekim, allowed themselves the type of halakhic independence for which they are known? The answer lies in the ruling of Rema himself who – drawing upon Rabbenu Asher ben Jehiel (Rosh, 1250 – 1327) ^[49]Sanhedrin, chap 1, no. 6. and R. Jacob ben R. Asher (Ba’al ha-Turim, 1269 – 1343) – writes the following:

“If based upon compelling proofs, it appears to a dayan and those of his generation, that the law is not like that which is found in the posekim, then they are permitted to disagree with it (i.e. that law) inasmuch as it is not explicit in the Talmud. Nonetheless, one is not to be lenient in a matter which those works which have gained widespread acceptance throughout the majority of Israel are stringent – unless he has received a tradition from his teachers that we do not follow that stringency.” ^[50]R. Jacob ben Asher, Tur H.M., sec. 25, par. 1.

Based upon this position of Rema, R. Jehiel Michel ha-Levi Epstein explains that the rule requiring one to follow the majority view among the halakhic authorities, is controlling only when the rabbi who now needs to decide “is not a great Torah scholar who can determine the law based upon proofs and there is no widespread consensus in accordance with one particular view.” However, “if he is a great Torah scholar and he is capable of deciding the law based upon proofs; and there is no widespread consensus in accordance with one particular view, but rather there are those who rule one way and those who rule otherwise; then, if he is capable of deciding (between the competing views) he should decide.” Accordingly, those Torah giants who can muster compelling proof to demonstrate that the law is not in accordance with the majority view but, on the contrary, in accordance with the minority view, are authorized to do so.

In reality, this explanation of R. Epstein is not novel and is already discussed at length by R. Moses ibn Habib. ^[51]Get Pashut, klal 5. Yet, R. Moses ibn Habib concludes that “in our times, when we are orphans of orphans, we do not rely on proofs to contradict the opinions of the authorities from previous generations…(rather) we generally see what is the majority view of those posekim who are the pillars of halakhic determination (hora’ah) and we rule in accordance with their opinion whether for leniency or stringency.”

Nonetheless, it is apparent that the Lithuanian halakhic tradition allowed its greatest rabbinic scholars the freedom to muster compelling proofs to rule in accordance with a minority view. Thus R. Abraham Isaac ha-Kohen Kook, in commentating on the above cited gloss of Rema, states: “Not only can a scholar of stature (“bar hakhi”) decide between posekim – when the disputants are of equal standing and those who say ‘innocent’ are equal in number and stature to those who say ‘guilty’, but even where the one disagrees with the many, he is permitted to decide in accordance with the one against the many, provided he is convinced that the minority position is correct and he can muster proper proofs to support the minority view.” ^[52]R. Abraham Isaac ha-Kohen Kook, Be’er Eliyahu, H.M., sec. 25, no. 15. Within this context it is important to add that Rashba ^[53]Resp. Rashba, supra. n. 34 and R. Moses Isserles ^[54]Rema to Shulhan Arukh, H.M., sec. 25, no. 2 and commentaries thereto. also explicitly rule that: “One does not rely on the words of a minor authority against one greater than him in wisdom and number (of students).”

Whether or not R. Katz is indeed a great Torah scholar (“bar hakhi”) of a stature that would allow him to dispute the majority view of the Torah giants of both previous generations and the contemporary one, is a question that we cannot answer. We respectfully leave that judgment to those scholars who know R. Katz and his halakhic prowess far better than we. One thing is, however, evident to anyone who is familiar with the halakhic sources and literature under discussion: R. Katz has presented no compelling proofs that would lead one to conclude that the understanding of the majority of Torah scholars throughout the generations – in any of the issues we addressed – is flawed.

Regardless, the above cited halkhic authorities make it clear that R. Katz errs in suggesting that our invoking “rov posekim” to buttress our halakhic position is somehow novel and unprecedented. On the contrary, as the very sources R. Katz himself cites – and others that we have cited, including Rema – make clear, it is the long standing practice of decisors to resolve halakhic issues by relying upon the view of the majority – whether they argued face-to-face or not.

This returns us to the final issue (point 4) discussed at the opening of our paper, safek berakhot le-vatala – the prohibition to recite benedictions in cases of substantial halakhic doubt. Such a practice could well involve invoking God’s name in vain. We argued that in light of our many arguments and the overwhelming number and stature of the posekim forbidding women’s aliyyot for the variety of reasons presented, reciting the birkot keri’at ha-Torah under such conditions is forbidden. Thus to paraphrase the Get Pashut ^[55]R. Moses ibn Habib, Get Pashut, end of kelal 5. (cited by R. Katz): when the disputants did not meet face to face, doubt remains because the issue has yet to be conclusively resolved. R. Ovadiah Yosef and others ^[56]R. Ovadiah Yosef, Resp. Yabia Omer, III, O.H., sec. 16, no. 7. go so far as to forbid, under such doubt, the recitation of benedictions, even if it is only a minority of posekim who are stringent. Nevertheless, most authorities permit saying berakhot if the majority of codifiers permit their recitation. ^[57]See note 10, supra and sources cited by Resp. Yabia Omer, note 56, supra. All concur that berakhot would be highly problematic if only a minority do so.

V. R. Ysoscher Katz’s Concluding Comments

R. Katz concludes his rejoinder to our paper with two critical comments. In the first, he notes that in our paper, we mention various posekim who forbid women from receiving aliyyot le-khatehilla (a priori), but do permit such aliyyot be-di-avad (ex post facto) or bi-she’at ha-dehak (under dire circumstances) (Frimers, Section VII.D). R. Katz then cites R. Moses Isserles (Rema, Introduction to Torat Hatat) among others as sometimes permitting otherwise prohibited kashrut cases in dire circumstances. Rema explains that he did so “because, in such instances, I believed the basic law to actually be completely permissible, but the later authorities z”l were stringent. I, therefore, wrote that in a dire or needy case, the original [lenient] ruling should be invoked.” From this R. Katz wants to conclude that all cases, including women’s aliyyot, which are permissible under dire circumstances, are actually permissible by basic law.

Such a stance is simply untenable. Rema is merely explaining that when he believes the basic law to actually be completely permissible – but was stringent because of the strict ruling of other authorities – then, he was willing to be lenient under dire or needy situations. But contrary to R. Katz’s assertion, the converse is not correct. Indeed, Jewish law is replete with instances in which the Rabbis of the Talmud themselves forbad an action le-khatehilla but permitted it be-di-avad or bi-she’at ha-dehak [see: Frimers, Section VII.D]. For example, Hazal say that a dairy spoon that has not been used in last 24 hours (eino ben yomo) should not be used to stir hot chicken soup. Similarly, Hazal indicate that one should not eat out of utensils that have not been previously immersed in a mikveh (undergone tevilat kelim). In both cases, be-di-avad or bi-she’at ha-dehak, if these utensils were used by mistake or where no other vessels were available, the food remains perfectly kosher. ^[58]Regarding a dairy spoon that has not been used in last 24 hours, see Shulhan Arukh, Y.D., sec. 122 forbidding its use and sec. 94, no. 4 indicating that the food is not forbidden post-facto; … Continue reading Hazal’s a priori ruling in both these cases is a clear directive of how one is required to act; under normative conditions, it is asur to act otherwise. In fact, R. Hayyim Benveniste rules in the latter case, based on rishonim and early aharonim, that if such a dairy spoon (that had not been used in last 24 hours) were used to stir hot chicken soup be-mezid (on purpose), the food would be rendered non-kosher thereby for the violator. ^[59]R. Hayyim Benveniste, Keneset ha-Gedola, Y.D., sec. 122, Hagahot ha-Tur no. 26.

As we discuss throughout our paper, the law regarding women’s aliyyot is similar. Hazal forbade women’s aliyyot le-khattehila because they did not want such aliyyot to become a normative situation. Kevod ha-tsibbur is the ab initio obligatory way of communal conduct and of ritual performance. Nevertheless, be-di-avad or bi-she’at ha-dehak the aliyya may be valid. The fact that a sub-optimal version may also be halakhically acceptable after the fact, or in dire situations, does not change the le-khattehila necessity of the proper mode of fulfillment. Proceeding one step further, R. Hayyim Hezekiah Medini ^[60]Sedei Hemed, Kuntres ha-Kelalim, Ma’arekhet ha-Dalet, Kelalim no. 61; Sedei Hemed, Pe’at ha-Sadeh, Ma’arekhet ha-Dalet, Kelalim, Kelal 3 and Kelal 30, sec. 10. discusses one who improperly performed a religious act or ritual be-mezid (on purpose) – despite knowing that it is forbidden le-khattehila and only valid be-di-avad or bi-she’at ha-dehak. He cites the Kenesset ha-Gedola, ^[61]Note 59, supra, citing Rashba, Ra’ah and other posekim. as well as many other rishonim and aharonim, who rule that such individuals do not fulfill their religious obligation whatsoever. The upshot would then be that not only are women’s aliyyot forbidden le-khattehila, but a community who calls women to the Torah knowing that this is a priori forbidden does not fulfill its Torah reading obligation and the benedictions are for naught!

R. Katz’s second criticism focuses on our conclusion (Frimers, Section VIII) that “even if there were grounds to set aside kevod ha-tsibbur, this is precluded by clear longstanding custom and practice.” In this regard, he charges us with being “tendentious” because in our Women’s Prayer Services paper (Section B.4) ^[62]Aryeh A. Frimer and Dov I. Frimer, “Women’s Prayer Services: Theory and Practice. Part 1 – Theory,” Tradition, 32:2 (Winter 1998), pp. 5-118. PDF available online at … Continue reading we maintained that women tefilla groups could not be prohibited on the grounds that they were unprecedented (lo ra’inu ra’aya). In his words: “There, next to footnotes 165–174, they mention a host of Acharonim who rule explicitly that a negative custom has no halakhic validity, that a custom not to do something is in fact not considered a custom. It is hard to think that this is simply a mistake or an oversight. They collected, recorded, printed, and published those opinions. Yet here, in relation to women’s Torah reading, they completely ignore what they had previously written. To the superficial reader, this looks like a tendentious use of opinions, comparable to the ‘clay in the hands of the potter,’ who publishes and conceals at will.”

These unbridled words would seem quite damming, but sadly reveal much about their composer. In our Women’s Prayer Services paper, we actually demonstrate that a community’s passive behavior creates a minhag only when such inaction results from a deliberate and conscious decision. It is not sufficient that the community simply did not act; it had to have decided not to act. Moreover, the reason for the decision to refrain from a particular activity must be rooted in the desire for greater halakhic scrupulousness. Thus the lack of women’s prayer groups in previous generations cannot serve as the basis for a binding minhag. The non-appearance of women’s tefilla groups in previous generations did not result from any form of halakhic ruling. Nor was it the consequence of any deliberate or conscious decision to refrain from establishing women-only tefillot; it was simply not done. And finally, the absence of women’s services in the past had little to do with halakhic stringency, especially in light of the reality that most women rarely attended shul regularly.

However, in the case of women’s aliyyot, we document that dating as far back as the 16^th century, posekim have explicitly recorded that the practice throughout kelal Yisrael was not to call women at all to the Torah. ^[63]R. Samuel Portaleone (mi-Sha’ar Aryeh; 16th century student of R. Menahem Azariah of Fano), Hiddushei Shmuel (unpublished manuscript) cited by R. Meir Benayahu, “De’ot Mahapkhaniyyot bi-Kelalei … Continue reading Thus, for example, R. Samuel Portaleone (16^th century student of R. Menahem Azariah of Fano), indicates that the custom of not calling up women included even minor women – where modesty considerations are minimal – lest it lead to violations among the adults. Similarly, R. Joshua Falk Katz (1550-1614) and R. Jacob Emden (1697-1776) explicitly record this practice of not calling up women as well. We conclude, therefore, that even if – arguendo – there were grounds to set aside kevod ha-tsibbur, this is precluded by clear longstanding custom and practice.

In summary, after studying R. Ysoscher Katz’s criticism in depth, we believe that our conclusions remain correct as presented. R. Katz fails to come to terms with most of the arguments proffered in our article. His paper neither refutes our conclusions nor comes close to challenging the fundamental assumptions of our methodology. If anything, it puts into serious question the reliability of his approach and findings.

Rabbi Aryeh A. Frimer is Ethel and David Resnick Professor Emeritus of Active Oxygen Chemistry at Bar Ilan University.

Rabbi Dov I. Frimer, a practicing attorney, is Adjunct Professor in the Faculty of Law at The Hebrew University and a member of Tradition’s editorial board.