Defining Equality in Judaism – by Rabbi Mark Goldfeder

October 25, 2012

The entire debate surrounding the ‘treatment of women in halacha’ seems to me to start with a rather questionable premise, namely that rabbinic law in general is hostile towards women. Take a step back; Jewish Law from the beginning enacted new religious legislation to improve the condition of women. (Just see Babylonian Talmud, Vilna Edition, Kesubot 47a, giving married women additional rights). Some of the grand advances that can be attributed to this legal system include the concept of divorce, the forbidding of marital rape, the idea that women could own property, and mandatory prenuptial agreements specifying a large alimony in the event of divorce. For hundreds if not thousands of years religious convictions were at the forefront of the development of rights for women. Even if you argue that our tradition is no longer at the forefront of democratic development, without the tremendous groundwork that Judaism laid it is very possible that these debates would not exist at all, and so any of these conflicts should be
approached with a sense of humility, giving the benefit of the doubt to the ultimately progressive nature of religious morality instead of immediately labeling particular practices discriminatory or unfair. When religious mores conflict with modern perspectives, we must think carefully and decide to what extent human rights are culturally and historically contextual, and therefore to what extent they should be culturally and historically imperialistic; that is, in what situations should modern ideas prevail over existing religious ideas.

The arguments I have read about women in Halacha more often than not seem to define the equality they strive for by simply requiring the removal of barriers to the rise of women to the same status as men and ignore the social and legal structures that have given rise to those different roles in the first place. They seem to accept the general applicability of a male standard and promise a very limited form of equality – equality defined as the ability for women to be just like their male counterparts. What we should really be striving for, ala Catherine Mackinnon, is a separately defined equality wherein women are given the ability to fully express themselves solely as women, without having to also compete for status in a male-centric structure. Women need their own standard, and while the phrase “separate but equal” may not be politically-correct in a post segregation society, when we ask for a standard that is different we by definition are asking for a standard that is in some ways separate. And yet, phrased differently, the application of a separate but equal doctrine in regards to gender is far from controversial. We might wish for a race-blind world, but we do not really want an entirely gender-blind world. Race separate restrooms, for instance, are of course taboo, but gender separate are de rigueur. On a practical legal front, family court judges consistently make custody decisions that favor mothers over fathers. The mere fact that a practice discriminates in some way between the sexes does not always have to imply inequality; it can sometimes be simple recognition of legitimate and appropriate difference. That difference when applied to men and women may sometimes be desirable, which is unlikely to ever be the case when applied to race.

I believe that rabbinic law is not just resisting a single canonical form of gender equality, but instead is expressing an alternate vision of equality, a sincere attempt to ensure that in being handed their equality women are being valued as women, not simply being given the permission and ability to go out and act like men.

The idea has been deeply ingrained in Western societal thought that there are very specifically gendered role definitions for the sexes. It is fair to say that, at least until recently, the idea that a woman’s ideal place was in the home and as a mother was a commonly held sentiment. No one can deny that in some areas, such as maternity, in order to combat unfair or discriminatory practices we cannot just ignore the difference between men and women, allowing women to be men. Here we must ask men to make a positive change in how they think and how they act; we need to tell men that having and raising children is not just the responsibility of the mother. Society should recognize that common responsibility and, to the greatest extent possible, share in that task while compensating instead of subtly punishing (and/or holding back) women for the time and the work that they put in.

Jewish Law has recognized this idea for well over two-thousand years. One particularly striking aspect of Jewish law (as defined by the Torah, the Talmud, and the Shulkhan Arukh) is the very noticeable and deliberate absence of a specific role definition for women. Had the Law intended to preclude for women all roles but that of mother, it could easily have done so; just as the Law clearly prescribes the obligations of a husband to his wife and vice-versa, and the obligations of parents to children and vice-versa, it could have also made mandatory for women not only marriage and procreation but also the entire range of household duties which would have defined an exclusive role for them. The law as it stands though is that women are not obligated to marry or procreate, nor to perform any household duties if they choose not to do so.

On the other hand, while Jewish law does not then define a “proper” or “necessary” role for women, it does assume that the continuation of a people depends upon the voluntary selection by at least some women of that role of mother. Recognizing that women could easily be disadvantaged by that position, the Law attempts to even the playing field somewhat and encourage the exercise of that choice. It does so by religiously incentivising motherhood, making sure that women who choose to enter motherhood are societally appreciated and socially compensated to the greatest extent possible. In practice the civil and religious demands made upon Jewish women by Jewish law are relaxed in order to assure that no legal obligation could possibly interfere with a domestic role; if a woman does in fact elect to discover some aspects of her own personal fulfillment in the act of becoming a mother, no law or policy will stand in the way of her performance of that sacred trust.

The primary category of commandments from which women were exempted for this reason were those which would either require or make urgently preferable a communal appearance on their part. (See Saul J. Berman ‘The Status of Women in Halakhic Judaism’ Tradition, Volume 14:2 1973.) As noted, the underlying motive of exemption is not the attempt to unjustly deprive women of the opportunity to achieve religious fulfillment. Rather, these exemptions are a tool used by the Law to achieve a particular social goal, to assure that no legal or social obligations would interfere with the selection by Jewish women of a role which was at least temporarily centered in the home. Male members of the community are required to pick up the slack by ensuring that there are in fact quorums that regularly meet, and that the communal responsibilities in general are constantly being fulfilled. It is vital to emphasize that despite the exemptions discussed above, the mother role, although a protected role, is not the mandated or exclusively proper role, and that women are also free to participate communally if they choose to do so.

Do not for a second think that Judaism alone as a legal or social system struggles with these questions. The American lawyer, for instance, who is given optional maternity leave, can exercise that right, but because they have only nominal equality and the role of motherhood is not really a common responsibility for which they are compensated instead of subtly punished, they may then still be forced to watch as their male coworkers, who do not have two sets of responsibilities, advance without them. Article 5(b) of CEDAW, the Convention on the Elimination of All Forms of Discrimination against Women (perhaps the most prominent international normative instrument recognizing the special concerns of women, insofar as it goes further than simply requiring equality of opportunity and also demands equality of result) tasks member states ‘To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.’ Judaism understood the importance of Article 5 a long time ago.

Which leads us back to the uncomfortable technicalities of dealing with an internally consistent system of law. In Jewish law, any exemption (male or female) from religious obligation necessitates a balancing loss in religious power.   The exemption that women have from the commandment to participate in certain forms of communal service, for example, results in their disqualification from being counted towards the quorum necessary to engage in such worship.  Similarly, in civil matters, the fact that women are relieved in certain situations of the obligation to testify results in their inability to be part of the pair or team of witnesses who bind the fact-finding process of the court. (Note, however, that women are believed; it just does not fall under the technical category of halachic ‘testimony.’ Most of what we colloquially call ‘testimony’ in Beth Din nowadays is also not technically testimony, and women are able to participate there as fully and completely as men). Such exemptions and disqualifications are not limited to women; for example a Jewish king may not participate in judicial proceedings since he is exempt from being prosecuted by a religious court.  The exemptions that women are given from religious obligations are meant to foster women’s ability to productively choose their roles and to spread responsibility more evenly as opposed to simply telling to be men as well as women, to give birth and not miss a day of work or worship. However, whatever the motivations, an internally consistent Jewish law system cannot avoid the technical legal consequences of exemption. The inability of the court to compel a woman’s presence results in the correlative loss on the part of the woman (in certain situations) of the power to compel the court to find the facts in accordance with her testimony, or to serve as a judge and compel others to appear.

Seen in this light, the lack of mitzvot for women in the public sphere is not intended to discriminate; on the contrary, it arises from a particular religious vision of separate but equal gender norms – a vision that allows women the freedom to be fully effeminate and not just occupy male space with identical male communal responsibilities. This is a vision that is likely different than that of the some female members of society, but it cannot be called inherently biased. It is practically impossible to construct a realistically gender neutral society. Gender equality, unlike race equality, must inherently involve some aspects that are separate and unequal, and which must then be balanced carefully against each other. As we noted above, almost everyone agrees to some level of gender discrimination. Halacha is and always has been a prescribed set of values, which defines itself in terms of duties and obligations, not rights. What halacha does, by telling us what is and is not a mitzvah, what we are and are not commanded to do, what is and is not a fulfillment of God’s will in a particular situation such that we receive reward for doing it, is to show us where Jewish law really thinks that line of difference ought to be drawn, rather than just enforcing a canonical vision of equality. This line, in regard to the equality of men and women, cannot be compared at all to other minhagim, where we are more likely to add or subtract non-essential, non prescribed, or non proscribed ritual actions based on new ideas; unlike almost any other accepted minhag, this is a line that is central to halacha’s understanding of the family, and to halacha’s vision of Jewish life.

Yes, any attempt to foster a particular social goal through class legislation, lumping together and defining the status of an entire segment of the community universally and extrinsically by law rather than by contractual agreement is going to be unduly restrictive of some individual self-expression. But that is part of buying into a system and its vision. Regardless, the anger and accusations in this debate are just sad. Genuine and committed people are rushing to conclusions, missing the subtleties of well-reasoned religious analysis. Whether you think that the line should be halachic recognition of a practice as positively good by its definition as a mitzvah, or halacha’s recognition of a practice as an acceptable possibility by virtue of the fact that it is not forbidden, I would hope that people can approach this discussion with an open mind, recognizing that each of these are sincere (and each undoubtedly to some) imperfect attempts to draw a line and find a balance wherein men and women are both able to live their lives and their Judaism to the fullest.

Rabbi Mark Goldfeder, Atlanta

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Women’s Participation in Ritual: Time for a Paradigm Shift – by Rabbi Zev Farber

October 15, 2012

Today, the baseline in any Orthodox community is that women do not participate in public ritual at all. In the average Orthodox synagogue, there is not one thing that women do which is part of synagogue performance. Their presence is not felt and their voices are not heard. The paradigm for women’s ritual participation in the Modern Orthodox world must change.

Although what I described above is standard, in some Orthodox shuls women have complained that they feel excluded and marginalized. In the best of shuls there has been an attempt to accommodate their feelings and various solutions have been offered. Some synagogues are unwilling to accommodate the women in the actual prayer space, but allow them to have a separate women’s prayer group, often based around a Torah reading ceremony of some kind. Others have passively recognized women in the synagogue, e.g., meḥitza down the middle, carrying the Sefer Torah into the women’s section, etc. or allowed some active participation, e.g., opening the ark, saying a mi-she-beirakh, reciting qaddish, etc.

Instead of focusing on specific solutions, I wish to describe what I see as the overall problem with the process of coming to solutions. As described above, we begin with the assumption that women currently lead no prayers and play no public role in the synagogue service. If a group of women in a given synagogue feel that this is insufficient for them, they can come to the rabbi with a complaint and he will think about what he may be willing to do to accommodate them. In my opinion this process is seriously flawed, even if in a given case the outcome is satisfactory for the women. Why is it that we have no expectation that the rabbi will work actively to expand opportunities for women? Why is it that the synagogue automatically assumes that the baseline should be no participation and that women need to put themselves out there, at a real risk of humiliation and disappointment, before even the smallest action will be taken on her/their behalf?

I would argue that the reason the impetus for change has fallen so squarely on the shoulders of women stems from the fact that we are still living under an antiquated and obsolete paradigm. Although there are a number of Talmudic pericopae (sugyot) that discuss technical questions surrounding differences between men’s and women’s obligations in prayer and related halakhot, this does not really explain the stark difference between the place of men and women in the synagogue. The larger issue, I believe, is sociological in nature.

In the Rabbinic period, as well as throughout the Middle Ages, the place of women in the social hierarchy was very different than it is now. Women were rarely public figures and were discouraged from receiving too much education, taking visible public roles, participating in the power structure, and generally from being around men. If any woman were to express superior learning or knowledge than a man in front of a group it would have been a serious breach in etiquette. This is why, according to Tosafot (b. Sukkah 38a, s.v. “be-emet”), women do not lead the Grace after Meals for men or read the Megillah for men, since it would be insulting to them (zila milta). For the same reason, R. Israel Meir Kagan, in his Mishna B’rurah (281:4) argues that women should not say Qiddush for men, at least in public. The Talmud offers a similar reason why women do not read from the Torah in synagogue (b. Megillah 23a), although they are apparently eligible to do so, as it would offend the honor of the congregation (kavod ha-tzibbur). This sociological stance, typical of the classical and medieval periods, goes a long way in explaining why the common practice is not only that women do not lead the repetition of the amidah (which requires a man who is obligated in this prayer service) but they do not even participate in p’tiḥah (taking out the Torah) or lead p’suqei de-zimrah (the pre-prayer psalms), neither of which has any halakhic requirements for who should lead it at all.

The sociological realities nowadays are entirely different. In our world, women hold every position of respect and power in the public sphere as men do. Women serve in Congress and the cabinet, women are judges, doctors, lawyers and police officers. The idea that a group of modern Western men would feel offended if a woman were to perform a public function in a synagogue should be laughable, except for the fact that they may think it a religious violation. But it is only a religious violation since the rabbis believed that the men would be offended. It is a vicious cycle that continues nowadays only due to the unfortunate combination of inertia, obliviousness to halakhic sources, and paternalism.

This is where I believe the paradigm shift must occur. To break out of this vicious cycle, we need to shift the paradigm 180 degrees. Instead of saying that since women have never historically participated in public ritual, so each shul and each rabbi will—upon request—think about creative ways to allow women to participate ritually in things that are permitted, we should be saying that all Jews, men and women, can do or participate in any meaningful ritual unless it is clear that halakha expressly forbids this. How to define what halakha forbids will be a question every shul and rabbi will need to answer, but the inertia factor and the women-don’t-do-these-kinds-of-things factor will have to be taken off the table.

In discussing this issue with others, I have sometimes heard the accusation that women are just trying to copy men. For example, in discussing women’s Torah reading ceremonies, which occur in a number of Modern Orthodox shuls around the world, including the shul where I daven, (thanks to the initiative of a number of women and the sensitivity of the rabbi), I have heard people—not from my community—ask “why would women want to read from the Torah anyway? Is it just because men do it?” I have also heard the related claim: “They are just doing this to make a statement. Women should be more tzanua (modest) about such things.”

These dismissive statements are out of touch with the spiritual and sociological reality of the synagogue service. Women do not want to read from the Torah because men do; women and men both want to be called to the Torah because participating in the reading of the Torah is considered an honor (kavod) due to the great respect all Jews have for the Torah and the Torah scroll. Every man who gets an aliyah receives a myriad of hand-shakes and yeyashar koḥakha’s—and this is true on a regular Shabbat. On Simḥat Torah the average shul breaks out all the Torahs so that every single congregant—male congregant—can be called to the Torah. Afterwards, the real kibbudim (honors) begin.

A year or so ago, I received the Ḥatan Torah honor (the aliyah where the last section of the Torah is read). It was quite an honor. There was a speech about the work I do for the shul, there was a very long and overly flattering Hebrew prayer/song sung by the gabbai, and while he was doing so four men held a ṭallit over my head as if I were getting married. Needless to say, only men get this honor. One can use many adjectives to describe this kavod, but tzanua (modest) is not one of them. It seems rather disingenuous for men who receive these honors and take their access to the Torah for granted to then ask what possible reason could women want to be a part of this. It is totally unfair to create a society in which access to the Torah is considered the greatest honor, bar women from it, and then turn around and ask what their problem is.

Another critique that I have heard of women who want more ritual participation is that “most of these women hardly do what they’re supposed to already; they come late to shul on Shabbat, they aren’t punctilious in their own mitzvah observance, they don’t do any extras like shaking the lulav and etrog or praying three times a day. Why should they get to do extras when they haven’t even covered the basics?” I see two basic problems with this critique.

First, they should be granted access to ritual possibilities because it is their right. Since when is the shaking of a lulav the prerequisite to opening the ark, reciting a mi-she-beirakh or dancing with a Torah scroll on Simḥat Torah? Second, even if a rabbi were to say that in his fantasy world he would only give kibbudim to people who were religiously “up-to-scratch,” I do not believe that he would feel that he could implement such a policy with men. For the life of me I cannot imagine a rabbi taking a Torah scroll away from a man on Simḥat Torah on the grounds that he comes late to shul on Shabbat, or announcing a policy that aliyot in his shul would only be given to men who show up consistently for weekday minyan. However, this is essentially what is being done to women who are told that since they do not daven enough, come to shul enough, do enough mitzvot—what have you—their desire to participate ritually in some way in the synagogue will be denied.

This leads to my final point, which is the issue of power structure. Women are finding it very difficult to make changes in their synagogues because they do not really participate in the power structure. In general, women in the Orthodox world are less learned than the men (due to the structure of yeshiva education), and there are virtually no female clergy in the Orthodox world. Happily, both of the above are changing, but the change is slow, and, therefore, it is critical to have men in our synagogues who understand the significance of changing the paradigm of women’s ritual participation. However, the real work will only begin once women are an integral part of the power structure in the Modern Orthodox world. Only then will the important and difficult conversations about the role of men and women in Orthodox Judaism today take place in a fruitful way. Until then I can only call out with my male voice to my colleagues in the Modern Orthodox world: change the paradigm now and let’s feel the presence of the women in our synagogues and hear their voices—the time is way past due.

Rabbi Zev Farber, Atlanta