Transgender Orthodox Jews

August 6, 2015

by Rabbi Dr. Zev Farber

 

An analysis of the challenges–both halakhic and social–faced by transgender individuals in the Orthodox Jewish world, with some suggested resolutions. 

 

INTRODUCTION – THE COMPLEX NATURE OF GENDER

One of the most stable identity markers for most people is their gender. We live in a world that divides itself neatly into categories of “male” and “female.” This is true of our language, our bathrooms, our sports teams, etc. For many of us, this reality is perfectly comfortable and intuitive. For those who feel that they were born the wrong sex or who don’t feel comfortable with either of the most common gender identities,[1] this dichotomy can feel isolating.

As challenging as being transgender already is in the larger world, Orthodox Judaism poses some unique challenges. In this essay, I will outline some of these challenges and suggest ways of ameliorating or solving the problems. My goal is to stimulate thought about how to integrate transgender Jews who wish to be part of the Orthodox world, into our shuls and our communities in as seamless a manner as possible.[2]

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The Missing Question: How Do We Experience Authority? – By Rabbi Josh Feigelson

January 16, 2015

This past fall, the Orthodox/halakhic community experienced the most honest public conversation about itself that I think I’ve ever seen. The arrest and investigation of Rabbi Barry Freundel opened up a series of powerful conversations. Husbands and wives talked about gender roles in Jewish law; friends talked about their feelings about rabbis and Jewish law at kiddush, at Shabbos meals, and walking to and from shul; and, most remarkably, the Jewish press, from the blogosphere to Facebook to the Times of Israel to the New York Times, openly and publicly discussed these questions. In my lifetime, I can’t remember anything like it.

While I welcome all of this discussion, I think that much of it has missed a central, big question, which has to do with a couple of central words, namely 1) authority, and 2) authenticity. To put the issue in the form of a question, I would raise it this way: 1) In what, or in whom, do we place authority? 2) When do we feel authentic? And 3) What do the two have to do with one another?

In some ways, the second question really comes Read the rest of this entry »


IRF Supplement for Tisha B’Av 5774/2014

August 1, 2014

IRF Supplement for Tisha b’Av 5774/2014

Guide to the observance of the fast with reflections on the day’s meaning from our friends at the IRF


Pew, Continuity and Conversion – Guest Post by Prof. Zvi Zohar

July 31, 2014

Precis

The findings of the recent Pew survey teach us, that the Jewish community in the United States as a whole is in a state of crisis (aka she’at ha-dhaq) with regard to the simple – but crucial – issue of numeric continuity. This fact has halakhic consequences: we can (and should) apply be-di-avad rules, follow minority opinions etc. to the utmost of whatever halakha can allow, with the goal of overcoming or at least ameliorating the she’at ha-dhaq situation.

In this paper I argue that Orthodox rabbis should shoulder halakhic responsibility for preventing numerical decline of American Jewry as a whole (i.e., they should make halakhic decisions not only caring for the future of Orthodox Jews, but for the future of all Jews).

Concretely, this means that they should be warmly encouraging towards all persons who seek to become Jewish, and follow the most lenient options for giyyur extent in halakhic literature with regard to what is the minimum required be-di-avad for a giyyur to be valid. In doing so, they can rely upon the views of the three great scholars I cite, whose halakhic stature is objectively no less than that of rabbi Moshe Feinstein. (The fact that they are less well known in the U.S. basically reflects the quite insular world of many American Orthodox rabbis.) Even were it the case that these rabbis express a minority opinion, that is of no consequence here, because we are not discussing what is the most correct position in an ideal world le-khathila but rather what options exist that can be employed in a be-di-avad situation.

Prof. Zvi Zohar is a Senior Fellow at the Shalom Hartman Institute in Jerusalem and teaches at the Faculty of Law and the Faculty of Jewish Studies at Bar Ilan University. He has written extensively on the history and development of halakha. His most recent book is Rabbinic Creativity in the Modern Middle East (Bloomsbury Academic Press, 2013).

Introduction

The October 2013 Pew Report underscored the fragility of the Jewish future in North America and has led to anguished discussions and debates regarding “continuity”, i.e., how to reduce the number of Jews relinquishing Judaism and Jewish identification in favor of other options.

But given the nature of the American religious scene, as I will present below, it is simply impossible to assure Jewish continuity by such a strategy alone. Rather, only if a strategy of easing the path of conversion is joined with current educational efforts and programs do we stand a chance of achieving continuity.

Such a strategy is of course at odds with the notion that conversion should be discouraged and difficult. However, that notion itself was not the primordial position of our tradition but rather historically conditioned. Encouragement of would-be converts and the intentional application of   the more  lenient positions found in our sources  can be fully justified from within the halakhic tradition — particularly in times of crisis such as ours.

Stating the Problem Honestly

Even if 100 percent of all children born to Jews in the United States were to remain Jewish, the Jewish population would decline significantly over time, because of the simple fact reported by Pew that Jewish adults aged 40-59 have an average of 1.9 children – while 2.1 children in a family represents the minimum fertility replacement level, that is, the level at which births equal deaths in a society with good health services. Although I am Orthodox, the fact that Orthodox Jewish families have an average of 4.1 children is no consolation to me. My concern is for the future of the entire community and not for any particular sub-group alone. Indeed, I believe that religiously and morally, such horizons of concern are befitting all Jews – and especially the Orthodox.

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Kol Kallah- The voice of a Kallah teacher

May 2, 2014

Guest post by Sarah Robinson

 

Almost as soon as I was married, I was asked by other women to study with them in preparation for their marriages as observant Jewish couples. The Kallah classes nightmare scenario outlined by Dr Maryles Sztokman was in my head for sure. The separation between spirituality and pleasure, brain and belief, personhood and obedience. I was sure it didn’t have to be that way.

Rejecting the role of teacher, I have preferred to form a learning partnership with the brides I have taught where each has her area of expertise. My expertise being my experience of marriage and relationships and hers of her self awareness and understanding of herself in relation to Jewish Law and to her relationship with her husband to be. It would seem that an insightful and informative one on one discussion between a married woman and one whose marriage is imminent cannot possibly be lecture format. How do you know where she is starting? Does she have positive or negative impressions, experiences shared by friends or family, a conflict right there already in the room?

Suffice to say I am not alone in this approach. I was extremely fortunate to attend an intensive seminar in March 2011 run and staffed by Jofa in conjunction with Yeshivat Chovevei Torah and Yeshivat Maharat and incorporating presentations by Dr Batsheva Marcus the clinical director of the Medical Center for Female Sexuality and renowned sex therapist. collected like minded educators committed to both hunanising halacha and demystifying the sexual relationship in order to communicate honestly and in an educated way about both.

The greatest benefit of the course by far, was the creation of a group in that room which would stay in touch with each other, help explore sensitive issues, share knowledge, insight and understanding, and radically change the face of transmitting a unique, ancient and value filled approach to marriage much in demand by couples in our community. Many of us teach couples together and while both halacha and sensitivity can be effectively taught, the challenges of bringing each of the people truly into the room and attending to their sensitivities regarding halacha knowledge and self awareness is immense. This is the task undertaken by those who have participated in training and who continue to discuss and struggle with the tensions implicit in this area of living.

Sarah Hass Robinson is a licensed clinical social worker and Jewish educator in Manhattan


IRF Passover Supplement 5774

April 10, 2014

With Contributions by Rabbi Yitz Greenberg, Rabbi Barry Dolinger, Rabbi Jon Kelsen, and Rabbi Menashe East

https://drive.google.com/file/d/0B1xGwp0vdYtgTnhzTXdfd3kxckFvUk0tQ1hXczV3dWZHTk9z/edit?usp=sharing


Crowd-Sourced Bibliography on Tefilin, Partnership Minyanim, and the Future of Orthodoxy

February 28, 2014

Will Rogers once quipped, “I don’t belong to an organized political party; I’m a Democrat.”  To which I would respond, “I don’t belong to an organized Jewish denomination; I’m Orthodox.”

Dozens of scholarly articles, essays, and blog-posts, have been published in the past month exploring the question of women and mitzvat tefillin and the phenomenon of Partnership Minyannim. This may all be a “tempest in a teapot” or this may become a milestone in the history of our community and its self-definition. To help record and organize all that is being written on this topic, I am creating a crowd-sourced bibliography. Please post links in the comments to articles/blog-posts/essays and I will add them to the bibliography once each week or two.

Reflecting the mission of this blog, priority will be given to articles that focus on how these issues percolate within the Orthodox community. I will also prioritize those writings that contain original analysis of primary sources. But, if there is something that you have read which you think should be part of this bibliography, paste a link in the comments and make a case (please also list which section the source belongs).

Part I: Girls Wearing Tefilin at Orthodox High Schools

The Jewish Week: Ramaz Would Permit Girls to Wear Tefilin

Rabbi Josh Strulowitz: It’s Not About Tefilin But Embracing School Choice

Rabbi Tully Harcsztark: SAR Principal Explains Decision to Allow Girls ot Wear Tefilin at School Minyanim

Rabbi Haskel Lookstein: Much Ado About Something: Women and Tefillin

Rabbi H. Schachter: Transcription of a letter by Rabbi H. Schachter on Women Wearing Tefilin, transcribed by Rabbi Josh Yuter

Rabbi Jonathan Rosenblatt: Reflections on the Tefilin Debate

Part II: Analysis of Women and the Mitzvah of Tefilin

(With a strong representation from Harvard Hillel in the 1990’s…)

Rabbi Ethan Tucker: Gender and Tefillin: Possibilities and Consequences

Rabbi Aryeh Klapper: Gender and Tefillin: Assumptions and Consequences

Shira Fischer, MD: In Pursuit of Intellectual Genorisity: A Rejoinder to R. Aryeh Klapper on Gender, Tefillin, and Normativitiy

Rabbi Shlomo Brody: Women and Tefilin: A Response to Ethan Tucker

Rabbi Shlomo Brody: Women, Tefilin, and the Halakhic Process

Rabbi Jeff Fox: The Truth About Women in Tefilin

William Friedman: Why Women Can – And Must – Wear Tefillin

Rabbi Dr. Zev Farber: Tefillin and Clean Bodies Part I

Rabbi Dr. Zev Farber: Tefillin and Clean Bodes Part II

 

Part III: RCA Documents on Partnership Minyanim and Reactions

Partnership Minyanim in the Pages of “Tradition.”

Rabbi Ysoscher Katz: A Response to Rav Herschel Schachter shlita

Rabbi Ysoscher Katz: A Resposne to Rav Herschel Schachter shlita (English Translation)

Professor Aaron Koller: Women in Tefillin and Partnership Minyanim: A Response to Rav Schachter

Rabbi A. Goridmer: The Boundaries and Essence of Orthodoxy: A Response ot Aaron Koller

“Menachem Mendel” Partnership Minyans in Israel

Rabbi Dr. Yoel Finkelman and Professor Chaim Saimon: A Next Step in Debating Partnership Minyanim and Women in Tefillin

Part IV: Opinions and Advocacy

Dr. Elana Sztokman: Orthodoxy Must Not Reject Its Most Committed Women

Rabbi Avi Shafran: TefillinGate Unraveled: In Orthodoxy Women Just Don’t Wear Tefillin

Avigayil Halpern: You Say I don’t Need Tefillin: Here’s Why I Do

Eden Farber:  Not-So Blurred Lines

Professor Aaron Koller: On Submissiveness


Olympic Judaism

February 23, 2014

by Maharat Rachel Kohl Finegold

I know we’ve moved on to Pikudei, but I hope you enjoy my Drasha from this past Shabbat.

A bit of Olympic history for you:

When the modern olympic games were founded in 1894, only amateurs were allowed to compete. It was forbidden to play for any monetary gain. In fact, the 1912 Olympic decathlon champion Jim Thorpe was stripped of his medals when it was discovered that he had played semi-professional baseball before the Olympics.

Over the course of the 20th century, this idea slowly eroded, on mostly practical grounds. Athletes obviously needed to be funded in order to spend the time practicing and competing. They would avoid breaking the rules by having money deposited into trust funds rather than being paid directly. But slowly through the 1970s and 80s the rules were relaxed. In 1988, professional athletes were formally permitted.

It’s hard to imagine a world without baseball players on million-dollar salaries, or your favorite hockey player being paid to appear on a box of cereal. But in the beginning, there was a sense that the ideal athlete was an amateur, not a professional.

Why this fixation with the amateur player?

The word athlete comes from the ancient greek for “one who competes for a prize”. Ancient Greek athletes did, in fact, play for prize money. The word amateur, however, comes from Latin “amator”, or love. An amateur is someone who does it for the love of the game.

Our culture values the idea of the amateur, the person who acts out of love or commitment. Even when someone does something nice for me, I don’t feel as appreciative it if I think they did it out of a sense of obligation. We prefer good deeds that are done by choice. We consider it more noble to do the right thing because you WANT to, not because you feel you HAVE to.

It’s this tension between “have to” and “want to” that emerges from within our parsha.

We read about the beautiful and luxurious materials that were donated for the building of the Mishkan.

קְחוּ מֵאִתְּכֶם תְּרוּמָה, לַיהוָה, כֹּל נְדִיב לִבּוֹ, יְבִיאֶהָ אֵת תְּרוּמַת יְהוָה:  זָהָב וָכֶסֶף, וּנְחֹשֶׁת.

“Take from yourselves an offering for the Lord; every generous hearted person shall bring it, [namely] the Lord’s offering: gold, silver, and copper.”

The verses refer over and over to nediv libam – the people gave whatever they saw fit, out of the generosity of their heart; there was no prescribed amount. And in fact, they were so moved to give that Moshe had to do something that has never happened in any Jewish fundraising campaign ever since. Moshe had to ask them to stop donating! They had given too MUCH. (Devarim 36:6)

Rashi, however, reminds us that not all these materials were voluntary donations. Here, he refers back to a comment he made in Parshat Terumah, when we are first commanded with regards to the building of the Mishkan:

“[The materials]  were all given voluntarily; each person [gave] what his heart inspired him to give, except [for] the silver, which they gave equally, a half-shekel for each individual.”  (24:3)

The only material that came through obligatory collection was the silver. A tax of one half-shekel coin was levied from each person, and these coins provided the silver for the Mishkan.

What does Judaism more greatly value – a voluntary act of commitment, or one that is done out of a sense of obligation?

Our Sages assert Gadol hametzuveh v’oseh m’asher eino metzuveh v’oseh – It is greater to be commanded to perform mitzvot and to do them, rather than to do mitzvah out of choice or religious fervor.

This concept famously plays a central role when discussing the many mitzvot from which women are exempted. A woman is not obligated in a host of mitzvot – sitting in the sukkah, hearing the shofar, and wearing tzitzit to name a few. But a woman may choose to do these out of her own volition, and we know that Jewish women en masse have taken upon themselves some of these very central mitzvot – hearing the shofar is the most widespread example. And, of course, there is a very interesting discussion happening right now in the Orthodox community with regards to women who might choose to don tefillin. (Another conversation for another time; find me at Kiddush – or on a future blog post…)

We do admire people who go the extra mile, who do a mitzvah out of nedivut generosity of spirit. My husband Avi and I named our second daughter Nedivah as a nod to this concept – Nedivah means generous, or giving. Avi and I deeply value this characteristic of nedivut, and we wanted to impart it to our daughter.

But ultimately, Judaism places a greater value on the idea of obligation, commandedness – Metzuveh v’oseh. This is symbolized by the fact that although most of the Mishkan was built using materials that were given from a deep and overwhelming sense of zeal and generosity, it also contained in it the machatzit ha’shekel, the obligatory donation that each person was required to give.

The voluntary donations clearly provided all the materials needed, even more than enough. Why was it important to also utilize the half-shekel coins in the building of the Mishkan?

For this, we return to our Olympic athletes.

We may admire amateurs. Their sheer love and passion is what drives them. But ultimately, that is not sustainable en masse. The Olympics had to recognize the need for the professional athlete.

A pro athlete may feel exhilarated during his time on the rink, or on the ski slopes. But if he wakes up one day and doesn’t feel like getting on the ice, he still has to do it. He has committed himself to this, and he must rise to meet that commitment.

Ideally, we should all be amateur Jews. We should live the values of the Torah out of sheer joy and love for it. We hope that our fire of religious fervor is lit constantly.

But we also recognize that sometimes we may lose our motivation, or the challenges of a Jewish life may be too great. We may not always be internally motivated to make the decision to do what is moral and right. It is then that we might become “professional” Jews. We might recognize that we each have a responsibility to contribute that half-shekel to the world. We are obligated to uphold Jewish values and to participate in Jewish life, even when our internal drive is not as strong.

It is that sense of obligation that is gadol – that is greatness. Metzuveh v’oseh, it is our commandedness that keeps us active and committed, that keeps our community going.

Ideally, even when we act out of a sense of obligation, this will lead us to rekindle the fire, so that we can become Jewish amateurs, and do it simply because we love it.


Guest Post by R. Ysoscher Katz: Translation of a Letter to Rav H. Schachter shlita

February 21, 2014

In response to numerous requests for a translation of my response to Rav H. Schachter’s letter on Partnership Minyanim, I am posting a translation

When translating from one language to another one runs the risk of losing some of the specifics; the nuance of an argument, and the intricacies of a line of thought oftentimes get lost. Therefore, if at all possible, I urge you to read the original Hebrew version.

כבוד הרה״ג ר׳ צבי שכטר שליט״א, ר”מ בישיבת יצחק אלחנן

אחדשה״ט כראוי לכבוד תורתו.

I read your Teshuvah on partnership minyanim and with your permission I would like to respond to some of your arguments.

Kevodo [your honor] wrote, “In my opinion not all who have learned in yeshiva, in kollel, or even those who have been ordained with the title Rav are permitted to give legal rulings.  To be considered a “sage who has attainted the ability to give rulings” one needs not only to have knowledge of the entire corpus of Torah, but also to be a person who is level in his learning.”

Clearly, one who is not trained to adjudicate cannot give halakhic instruction. Chazal (Sotah 22a) have already warned about the damage that can result from this in their reading of the verse Ki rabim halalaim hapilah/for she has felled many victims (Proverbs 7:26), which refers to a student who has not achieved the ability to give halakhic instruction. However, it is important to remember that by the same measure they also warned against the opposite, a student who has been ordained to give halakhic instruction, but doesn’t rule.  Regarding such a situation, the sages interpreted the second half of the above verse: Ve’atzumim kol harugaha/the number of her slain is great – “this refers to a student who has achieved the ability to give halakhic instruction but doesn’t.”

It is interesting to note that the Maharsha in his commentary Chidushei Agadot, explains that the word atzumim is from the language of greatness and importance.  It would seem, at first glance, that he agrees with Kevod HaRav’s [your] position, that a judge is permitted to issue rulings only if, in addition to being ordained, he is also “great and important.”  However, Rashi disagrees with the Maharsha.  Rashi explains that atzumim is from the language of “shuts his eyes” (otzem ainav, Isaiah 33), that they close their mouths and do not give halakhic instruction to those in need of such instruction.  It is clear that Rashi does not agree with the Maharsha and that according to this opinion one who “has knowledge of the entire corpus of Torah”, even if he is not “great and important”, is allowed, and even obligated, to give halakhic instruction.

The halakha codified in the Shulchan Arukh follows Rashi’s opinion, not the Maharsha’s. The Mechaber writes (Yoreh Deah 242:14) “Any scholar who has achieved the ability to give instruction but does not, stands in the way of Torah and places stumbling blocks before the masses. And of such a person it is said, the number of her slain is great (Prov 7:26).” It is important to pay attention to the fact that the Beit Yosef (the author of the Shulchan Arukh) is careful in his language and writes “any”, which appears to exclude from his view the opinion of the Maharsha who teaches that only the elite few are permitted to issue rulings.  So too, the Pitchei Teshuva writes (ibid seif katan 8): ” ‘Any scholar’ – Refer to the Maharsha in the Chiddushei Agadot of the third chapter on Sotah who writes that in our generation those who give halakhic rulings straight from the Shulchan Arukh, without knowing the reasons behind the issue – if they have not first looked into the sources of the Talmud – err in their rulings and are considered amongst those who destroy the world and therefore it is proper to ridicule them.  It is possible that this was true at the time of the Maharsha, when there wasn’t a single commentary on the Shulchan Arukh, but today, after the Taz, Shach, Magen Avraham, and other commentaries have been written, and every halakha’s reasons and sources have been discussed, it is perfectly fine to issue a ruling from the Shulchan Arukh and later commentaries.”

The great sage the Maharsham elaborated on this topic in the introduction to his book Mishpat Shalom on Choshen Mishpat.  According to his opinion, not only is it prohibited for a rabbi to restrain himself from issuing a ruling, but he is also obligated to respond to halakhic questions as quickly as he can, and to do otherwise would be considered “delaying justice.” (See Mishna Avot 5:11.) He even tries to claim that it might be forbidden for the rabbi to take an afternoon nap out of a fear of causing an unnecessary “delay of judgement.”

In Sefer Chassidim 530 (Margaliot edition) Rabbi Yehuda HaChasid writes, “Anyone to whom God has revealed something, but who refuses to write it down even though he is capable of writing it, steals from He Who Has Revealed it to him, because He revealed it only to be written as it says:  God’s secret is with those who fear Him and His covenant to inform them (Psalms 25:14). And it says, Your springs will spread outwards(Proverbs 5:16).” Rabbi Chayyim Palagi, in his book Chikekei Lev (Yoreh Deah Siman 42), writes that a scholar cannot refrain from issuing a psak, for doing so is tantamount to one who suppresses prophecy whose punishment is death (Rabbi Ovadia Yosef zt”l quotes his words in responsa Yechave Daat 1:13). And according to the Gemara in Gittin (56a) the Beit HaMikdash was destroyed because of a judge who didn’t have the courage to speak his mind.

(Tangentially, perhaps it is important to point out the disagreement between the Rama and Rabbi Chayyim Loew, the brother of the Maharal, in his book Mayyim Chayyim.  The brother of the Maharal strongly disagrees with the Rama’s position supporting a centralized judiciary.  In the introduction to his book, he fiercely refutes the Rama using as a support the concept that “a judge rules only according what his eyes perceive” (Sanhedrin 6b) and is therefore opposed to the notion of a centralized authority which decides from a distance what should be prohibited and what should be permitted, what is correct and what is incorrect)

Kevodo continues: “Compare what Rav Yosef Dov Soloveitchik z”l wrote in the year 5720 (in his book Divrei Hashkafah, p 243) “From the yeshivot emerged students who were punctilious in Mitzvah observance down to the very edge of the yod of the tradition…Bnei Torah who slept in the depths of halacha…  I am troubled by three negative phenomena… We have yet to educate great Torah giants of whom we can be proud of.  We have people who are immersed in Torah and even Torah scholars, but no men of great Torah stature. The buds can be seen in the land, but the vine has not flowered in all its glory… On the one hand, American youth tend to veer towards an extremism that is shocking in its braziness.  On the other hand, often they will tilt in the oppisite direction and agree to compromises, choosing the paths of least resisitence.  In a word, they are confused in the paths of yidiskheit and this confusion is the consquence of a flimsy word view.”

The alert reader will notice that Rav Soloveitchik z”l complains as much about those who are too strict as he does about those who are too lenient.  When I was a student of Rav Avraham Yehoshua Soloveitchik Shlit”a in Yeshivat Brisk in Jerusalem, I would often hear him quote Rav Baruch Baer Leibowitz z”l who would say in the name of Reb Chayyim zt”l (basing himself on the verse in Proverbs 17:15) that to condemn a righteous person is no less an abomination than to exonerate an evil person.

Teshuvat Meimonit (Kedusha 15) quotes the Yerushalmi (at the end of the fifth chapter of Terumot) that just as it is prohibited to permit that which is prohibited, so too it is prohibited to forbid that which is permitted.  And this is how the Shach rules in his Guide To Pesika (Yoreh Deah 242:9). Similarly, it says in the Yerushalmi (Nedaraim 9 halakha 1), “Is what the Torah itself prohibited not sufficient for you?!”

In particular, in our generation, one should be cautious not to be excessively strict, when any stringency can become “a stringency which leads to a leniency,” since needles stringencies can cause many to leave a life of Torah and Mitzvot.  And these are the words of Rav Kook zt”l (Orach Mishpat, O”C 112) “I understand clearly the character of our generation, that only by virtue of seeing that we permit all that can be permitted according to the depths of the law will they come to understand that that which we don’t permit must be because it is the truth of the law.  We will find that as a result of this approach, many will attach themselves to Torah and will listen to the voices of legal instructors.  This will not be true if it were discovered that there are matters that, according to the rule of the law, should be permitted, but by not being sensitive to the struggles and pain of Israel, rabbis allow these things to remain prohibited.  And through this, God forbid, God’s name will be defiled, and more people will say regarding certain areas of Torah that if only the rabbis wanted to they could permit.  And through this, a corrupt judgment will emerge.” Although the Chatam Sofer famously wrote to the Maharatz Chayut that “we need to elevate the prohibited,” this is a singular opinion. Throughout hundreds of years of halakhic rulings, not a single decisor advanced such an idea, and after the Chatam Sofer, nearly no other decisor supported this approach.

Kevodo continues: “It is known that during the period of the vaad of Arba Arzot there was a decree not to publish any halakhic books without the approbation of Torah sages.”

Kevodo is correct, the sages of Hungary, who followed in the footsteps of the Chatam Sofer, were careful not to publish any books without an approbation.  However, a cursory glance will reveal that the the same was not true of the sages of Lithuania and many of the sages of Poland.  Many of them printed their collections of responsa without approbations. (For example: the Achiezer, Iggerot Moshe, the Seridei Aish, and many others) It is clear that, in their opinion, the ordination and permission to issue halakhic rulings that they received from their teachers or rabbis is sufficient enough approbation.

Kevodo: continues “One who wishes to demonstrate his love for their parents or wife does things for their benefit even if unasked; this is also the case with God.  In Song of Songs it is written, “your beloved is better than wine”.  Commenting on this, the Gemara states that the words of the scribes are better than the wine of Torah, with scribes refering to the rabbinic commandments, and these are all under the category of “your beloved”.  This is to say, in order to demonstrate our love of God, we perform acts that we were not commanded, acts that we understand, on our own, to be pleasing to God, as it were.”

I was surprised since these words buttress, rather than undermine, the very claim that Kevodo is criticizing. If I understand correctly, this is precisely Kevodo’s analogy: If one who loves someone does more than is requested by the beloved out of their own will, does it not follow from here that those who are not obligated in a particular Mitzvah should find ways to perform it nevertheless?

Related to this: I was surprised that Kavodo Shlit”a derides those who seek additional ways to express their yearning for connection to God, when our Sages praise them. Chazal say (Makkot 10a): R. Simlai gave the following exposition: What is the meaning of the verse, one who loves silver shall not be satisfied with silver, nor one who delights in multitude, with increase?  One who loves silver shall not be satisfied with silver- this refers to Moses, who, while knowing that the three cities beyond the Jordan would not harbor refugees so long as the other three in the land of Canaan had not been selected, nevertheless said: The charge having come within my reach, I shall give [partial] effect to it, now.” One who loves silver shall not be satisfied with silver- this refers to Moses. Rabenu Chananel (ad loc) writes: “Moses loved Mitzvot and, therefore, felt that the ones he was obligated with were not enough, he wanted more of them. “

The Mordechei, in Bava Metzia, went even further. In his opinion, there are cases where one is obligated to act beyond the letter of the law, and the requirement to do so has the full status of the law, so much so that, at times, according to his opinion, it is possible that we can even coerce someone to act beyond the letter of the law. In my opinion, the two stories that are found at the end of the chapter “Hasocher et Ha’omanin” (Bava Metzia 83a) clearly support this opinion (see the Ritva ad loc)

We also find in the achronim a positive approach to those who seek extra-halackic opportunities to serve God. One opinion that particularly stands out is the Chatam Sofer. In his famous responsa to the Matesdorf community (O”C 191 and in other places) he writes that the “Matesdorf Purim” that the citizens of the town added according to their own opinion to commemorate the miracle that they experienced has the status of a biblical law. (His ingenious opinion is based on the Gemara in megillah 14a that Israel sang praise when going from slavery to freedom, all the more so when going from death to life).

(With your permission, I will say that I know from personal experience that Kevodo’s appraisal of those “innovators” is not correct.  Many of my friends and acquaintances pray in these minyanim and nearly all of them are completely God-fearing; their intention is to dwell in the house of God, to behold His graciousness, and to visit His sanctuary.  Their goal is to increase commitment to God’s Torah and to worshiping Him in a way that decreases the dissonance between what happens inside the synagogue and how they experience life outside of it.

Additionally, as a general principle, it is impossible to judge the intentions of another, for, “Man looks into their eyes, while God peers into their hearts” (Samuel 1:17) The Mishna is Avot (2:4) is well known: “Do not judge your friend until you’ve stood in his place.”  The Gurer Chassidim quote a saying in the name of the Chiddushei Ha’Rim who adds on to the mishna: And you will never reach their place, therefore never judge. Insightful words)

Kevod HaRav continues: It is known that this claim was the claim of the Sadducees against the Sages in the time of the Tanaim: that the Torah discriminates against the rights of women regarding issues of inheritance.  Therefore the Sadducees claimed that a daughter is to inherit with the daughter of the son (Bava Kama 115b).  And the Tanaim had strong words for them.”

With apologies to Kevod HaRav, the Sadducees were not the first to complain about discrimination against women in issues of inheritance; they were preceded by hundreds of years by the daughters of Zelaphchad who complained (Num 27:4) “Why should the name of our father be lost among his family because he had no son?  Give us a possession among the brothers of our father.” And in the language of the Sifre “Their eyes saw that which Moses’ eyes did not see” (that is that there are times when women can see something that even someone as great as Moses, who spoke with the Shechina “mouth to mouth,” did not see.) And God consented to their words unequivocally: “Correctly have the daughters of Zelaphchad spoken.”  God listened to their claim (“God conceded the truth!” Avot D’Rebbe Natan Ch. 37) and changed the laws of inheritance to make them more egalitarian (relatively, as should be understood)

Further on Kevodo describes the excessive responsiveness towards women as a reason for the downfall of Christianity.  Kevod HaRav writes: “It is stated in the Gemara Shabbat (117b) that the first Christians would make legal decisions counter to Torah Law (that a son and daughter would inherit as one, which has already been discussed (the connection of the Sadducees to the Heretics and first Christians) by the author of the Tzafnat Paneach (in his responsa 313), that the Christians inherited their approach from the Sadducees. And this type of motivation, to create new practices, is certainly prohibited, as is known to us from history.  Go and see just what the end was for the Sadducees and the early Christians.”

I was surprised by these words, since the Sages say exactly the opposite. The Gemara at the end of Gitin (90a) says: “It has been taught: R. Meir used to say: As men differ in their treatment of their food, so too do they differ in their treatment of their wives. Some men, if a fly falls into their cup, will put it aside and not drink it. This corresponds to the way of Papus b. Judah who, when he went out, used to lock his wife indoors. Another man, if a fly falls into his cup, will throw away the fly and then drink the cup. This corresponds to the way of most men who do not mind their wives talking with their brothers and relatives. Another man, again, if a fly falls into his soup, will squash it and eat it. This corresponds to the way of a bad man who sees his wife go out with her hair unfastened and spin cloth in the street with her armpits uncovered and bathe with the men. Bathe with the men, you say? — It should be, bathe in the same place as the men. Such a one it is a religious duty to divorce.”

According to this Gemara, Papus Ben Yehuda is the negative example of what happens to one who behaves in an extreme manner with his wife.  Rashi, as printed in Chisronot HaShas writes that Papus Ben Yehuda is Miriam Magdalin’s husband, the father of Jesus. What emerges from this is that, according to the Sages, Miriam, Jesus’ mother, became pregnant because of the extremism of her husband.

In my humble opinion, the message of this Gemara is exactly the opposite of what Kevod HaRav writes. The Sages are claiming that Christianity came into the word as a result of extremism and discrimination against women and they warn us about the detrimental consequences of such an extreme attitude towards women- heresy (Christianity) was born from this behavior.

Kevodo continues: “Even according to the achronim who think that the consent of the community helps permit publicly reading from the Torah, here, regarding women reading from the Torah, the essential concern begins from the woman’s perspective – that she shouldn’t have to compromise her modesty, from which it follows that it isn’t proper for her to serve as a Shaliacha Tzibur for Pesukei D’Zimra or Kabbalat Shabbat or to read the Ketuba under the Chuppah.”

The Torah, Prophets and Chazal all write the opposite, that, at times, it is permitted to give into the desire to do God’s will, even if this leads, in a specific manner, to the breaching of bounds of modesty.  Two examples of many that stand out are the story of David when he returns the Ark of the Covenant (Shmuel II 6) and the incident of the mirrors of the women who had set up the legions that were used in the Tabernacle.

When David returns the Ark of the Covenant, he becomes so enthusiastic, to the extent that he forgets the bounds of modesty.  He wife, Michal, criticizes him saying: How did the king of Israel get himself honor today, who uncovered himself today in the eyes of the handmaids of his servants, as one of the vain fellows shamelessly uncovers himself”.  David ignores the criticism and justifies his immodest behavior by saying that he acted this way to serve God (ibid ver. 21).  As is known, this story serves as the Rambam’s source (The final halakha in the laws of Lulav) that there is an “additional” obligation to rejoice during the performance of a mitzvah (as Rabbi Yerucham Fishel Perlow expounds in his book on the Sefer HaMitzvhot of Rav Sa’adya Gaon).

We find a similar idea in the story of the mirrors (Ex 38:8) And this is how Rashi explains its importance.  “From the mirrors of the women who had set up the legions” – Israelite women owned mirrors, which they would look into when they adorned themselves. Even these [mirrors] they did not hold back from bringing as a contribution toward the Tabernacle, but Moses rejected them because they were made for temptation [i.e., to inspire lustful thoughts]. The Holy One, blessed is He, said to him, “Accept [them], for these are more precious to Me than anything because through them the women set up many legions [i.e., through the children they gave birth to] in Egypt.” When their husbands were weary from back-breaking labor, they [the women] would go and bring them food and drink and give them to eat. Then they [the women] would take the mirrors and each one would see herself with her husband in the mirror, and she would seduce him with words, saying, “I am more beautiful than you.” And in this way they aroused their husbands desire and would sleep with them, conceiving and giving birth there, as it is said: Under the apple tree I aroused you (Song 8:5). This is [the meaning of] the mirrors of those who set up legions]. From these [the mirrors], the washstand was made.”

These women merited for their mirrors to be fixed in the Tabernacle precisely because of their immodesty, since their actions all along were done to fulfill God’s will.

Kavod Toratoh HaRamah concludes:  In addition to all the above it also appropriate to recall what I wrote an article Tzei lach in Ikvei HaTzon (11) in the name of the Rav “That anything that becomes a symbol of destroying religion, even if, in truth, according to halakha it doesn’t inherently violate any prohibitions, since it has become a symbol of breaching the bounds and of destroying religion, this causes it to become prohibited [and this has already been written about in the book Nefesh HaRav (page 233)].  And it is well known that the Reform and Conservative Jews breached the bounds in including women in a minyan, and counting women as rabbis, and calling women to the Torah.  It is clear, then, that it is forbidden to imitate the heretics (See the Mishna in Chulin 41a)

Astounding! What is the difference between this and Modernity and Zionism? Modernity and Zionism are also, at their core, impure. The intention of their founders was “to destroy religion” (modernity: the Maskilim and Reformers; Zionism: Herzl, Gordon and the like).  Nevertheless, they were purified through Rav Kook z”l (Zionism) and Rav Shimshon Refael Hirch z”l and Rav Soloveitchik z”l (modernity) (See Bechorot 6b: “an unclean animal born from a clean animal is not Unclean, but clean.”)

In conclusion, in my humble opinion, all of the above arguments are secondary to Kevodo’s innovative twofold claim: 1) That what Kevodo calls the spirit of the law has halakhic standing equal to that of what you call the letter of the law. 2) That adjudication of the spirit of the law can be done only “with the agreement of giants of Torah who have knowledge of the entire corpus of Torah, and who can understand what is the spirit of the law”.  Kevodo bases his claim on the verse in Isaiah (59:21)

It is clear to me that this verse was brought as eisegetical support.  Certainly, Kevod HaRav has solid proofs for such broad claims.  As one who still struggles with the concept of partnership minyanim and who attempts to present a position that fits with what I understand to be the correct “spirit” and “letter” of halakha on these matters, I want to ask if Kevodo could graciously elaborate on the topic.  Personally, I would also like to hear more specifics about the criteria for successfully deciphering the true “spirit”: who, how, and what establish what is the correct “spirit” in any event?  What are the parameters that we need to establish for ourselves in our search for the “spirit” of halakha generally and specifically, when we come to adjudicate a topic as difficult and complicated as ours, one that has far reaching ramifications for our future?  If the “spirit” is essential to judgment, it is important that both sides of the argument strive to articulate their approach to “the spirit” of the topic “clearly and with meaning” (Nehemiah 8:8).

May it be His will that the Shechina rests in the deeds of our hands and that God’s name shall be sanctified by our work.

11 Adar 1, 5774

Sincerely,

הצב”י יששכר כ”ץ


Tefillin and Clean Bodies – Part 2: Women Wearing Tefillin – by Rabbi Zev Farber

January 31, 2014

See: Tefillin and Clean Bodies – Part 1: Elisha’s Wings

Women are Exempt from Wearing Tefillin

According to the Mishna (Berakhot 3:3), women are exempt from wearing tefillin.

Women, slaves and minors are exempt from reciting the Shema or wearing tefillin, but they are obligated in prayer, mezuzah and reciting the grace after meals.[1]

Why are women exempt from wearing tefillin? Rashi (ad loc.) suggests that it is because tefillin are a positive commandment tied to a particular time (a category of mitzvot that women are generally exempt from performing), since tefillin are not worn at nights or on Shabbat and holidays. The discussion in the Babylonian Talmud (Eruvin 96a), which assumes that this is the reason for the exemption, supports Rashi’s position.

The Jerusalem Talmud (Berakhot 2:3), however, offers a different reason.

From where do we know that women [are exempt]? ‘Teach them to your sons’ (Deut. 11:19) – not your daughters. Whoever is obligated in learning Torah is obligated in tefillin; women who are exempt from learning Torah are exempt from wearing tefillin.[2]

According to this source, women are exempt from wearing tefillin because they are exempt from studying Torah.

The Mekhilta of R. Ishmael (Pasḥa 17) offers the same reason.[3]

‘So that the Torah of the Lord be in your mouth’ (Exod. 13:9). Why was this said? Because it says (ibid): ‘This should be a sign [upon your arm].’ I would have assumed that women are included, and this would make sense since mezuzah is a positive commandment and tefillin is a positive commandment, if we assume that women part of the mitzvah of mezuzah shouldn’t we assume that women are also part of the mitzvah of tefillin? Thus the verse comes to teach us, ‘so that the Torah of the Lord be in your mouth,’ I am only referring to someone who is obligated in learning Torah. From here they said: “All are obligated in tefillin except for women and slaves.”[4]

Rambam codifies this reason in his Sefer Ha-Mitzvot (Positive Commandments, 13), referencing the Mekhilta.[5]

The Michal bat Kushi Story

May a woman wear tefillin voluntarily? The Babylonian Talmud (Eruvin 96a) records a story about this.

Michal daughter of Kushi used to wear tefillin and the Sages didn’t object. Jonah’s wife used to come [to Jerusalem] for the holidays and the Sages didn’t object.[6]

According to this source, it would seem that women may wear tefillin if they wish.

The Mekhilta records the same story.

Michal daughter of Kushi would wear tefillin. The wife of Jonah would come [to Jerusalem] for the festivals. Tabi, Rabban Gamliel’s slave would wear tefillin.[7]

According to this account, which is the same as that recorded in the Babylonian Talmud, it appears that women may wear tefillin if they wish.

There is an alternative version of this story, however, which appears in the Jerusalem Talmud (Berakhot 2:3) and is included in the Pesiqta Rabbati (22). The passage follows the previously quoted the lines of the Jerusalem Talmud, where it was established that women are exempt from wearing tefillin.

A contradiction was offered: ‘But Michal daughter of Kushi would wear tefillin and the wife of Jonah would [come to Jerusalem] for the holidays, and the Sages didn’t stop her.’ R. Hezekiah in the name of R. Abahu: “The Sages sent Jonah’s wife back and objected to Michal bat Kushi.”[8]

The first version of the story included here assumes that Michal wore tefillin without any objection from the Sages. Moreover, the Jerusalem Talmud assumes that if she wore tefillin, she must have been obligated. (The Babylonian Talmud makes a similar assumption, suggesting that maybe she followed the opinion that tefillin should be worn at night and on Shabbat.) Hezekiah in the name of R. Abahu, to solve this problem, offers an alternative version of the story. The Sages did, in fact, object to what she was doing.

Tosafot and Women’s Fitness for Tefillin

The Tosafot (Eruvin 96a), having seen the source in Pesiqta Rabbati, wonder why the Sages would have objected. Since the Tosafot follows the position of Ri (=Rabbi Isaac of Dampierre) that women are permitted, even encouraged, to take on positive mitzvot for which they are not obligated, they cannot answer that doing that which one is exempt from doing is bad.[9] Thus, in order to answer the question, they turn to the position of Rabbi Yannai analyzed in part one.

It would seem that the explanation for the position that women are not permitted [to wear tefillin] is because tefillin require a guf naqi and women are not zealous enough to be careful about this.[10]

The Tosafot claim that the reason women may not wear tefillin, according to Hezekiah quoting Rabbi Abahu, is because they will not be careful about the cleanliness of their bodies. Since according to the Babylonian Talmud, being careful about “guf naqi” means avoiding flatulence or falling asleep, the Tosafot are saying that women will not be zealous enough about their tefillin to avoid flatulence while wearing them.

Why would the Tosafot say such a thing? Here is where modern readers, I believe, have difficulty accepting attitudes about women that reflect a pre-modern mentality that men are better or more spiritual or more serious about Torah than women. Yet this was a common, even normative belief in the pre-modern era.

In fact, this is the very reason that some sages believed that it is forbidden and a waste of time to teach women Torah.  This attitude was articulated most clearly by Rambam Mishneh Torah (Talmud Torah 1:13)

A woman who learns Torah receives a reward, but it is not like the man’s reward, since she was not commanded [to do so], and anyone who does something [good] which he was not commanded to do receives less reward than one who fulfills a command. Even though there is reward, the Sages commanded a person not to teach his daughter Torah, since most women’s minds are not designed for learning and they will turn the words of Torah into foolishness due to their weak intellect. The Sages said: “Anyone who teaches his daughter Torah it is as if he taught her licentiousness/nonsense.” To what does this statement apply, to Oral Torah, but insofar as the Written Torah, de jure a person should not teach her this, but if he did, it is not like teaching her licentiousness/nonsense.”[11]

Rambam believes that women, because of their weak intellects, would make nonsense out of Torah study, specifically study of Talmud, which is very intricate.

Although it is possible that the Tosafot did not hold as extreme a view as Rambam about women, nevertheless, it is hardly surprising that in the Middle Ages, some rabbis would believe that women could not be trusted to take tefillin seriously enough to hold in flatulence or quickly remove their tefillin if they felt it coming on. Even though the Rishonim state explicitly that any person can hold in their flatulence during the short period of the morning prayers, they were thinking about men, whom they believed would take the mitzvah seriously; they were not (necessarily) picturing women doing this.

A number of other Rishonim expressed the Tosafot’s explanation of the alternative Michal story in even starker terms. For example, in the Kol Bo 21 (the source upon which Rama’s opinion in the Shulḥan Arukh is based), Rabbi Meir of Rothenberg is quoted as being against women wearing tefillin (he may have been the first to codify this position as halakha):

Rabbi Meir [of Rothenberg] wrote: “Women are exempt from tefillin because they are a positive commandment tied to a specific time, for we do not wear them on Shabbat and festivals. If women wish to wear them we don’t listen to them, because they do not know how to keep themselves clean.”[12]

Although R. Meir of Rothenberg may mean the same thing as the Tosafot, that women will not be careful about flatulence, it is possible that he has even more in mind than this. R. Meir may be envisioning the realities that come with women menstruating. Before the advent of feminine projects, it would have been quite difficult for women to keep clean during their cycles. Although such a concern does not appear in the Talmud, perhaps R. Meir is making an a fortiori – if flatulence is forbidden certainly menstrual bleeding should be forbidden—but this is just speculation on my part.

An even clearer expression of how women will not be careful can be found in Ritva’s commentary to Qiddushin 31a. In that text, he is discussing the question of whether women should make a blessing on mitzvot they perform but in which they are not obligated. As part of this discussion, he suggests a possible reason that the Sages objected (according to the source in the Jerusalem Talmud and Pesiqta Rabbati).

…because tefillin require a guf naqi like Elisha with the wings, and women are not clean, they are not clean of body and they are not clean of mind.[13]

Ritva uses an extreme expression in order to get across the point that women, in his view, are not capable of being clean enough or serious enough to wear tefillin.

Although Ritva’s statement is extreme, the majority of the commentaries that follow the position of Rabbi Meir of Rothenberg, forbidding women to wear tefillin, repeat Tosafot’s interpretation verbatim (see, for example, TazMagen Avraham, and Mishna Berurah on the Shulḥan Arukh Oraḥ Ḥaim 38:3), i.e., “they are not zealous enough to be careful.”

Conclusion

In modern times, our attitude towards the intelligence and religiosity of women has changed dramatically. No longer do we claim that women are either not smart enough or not serious enough to learn Talmud. Instead, women’s Talmud programs are flourishing in our times. To my mind, the same must be said about women wearing tefillin.

Although in the past it may have been believable to claim that women should not be trusted with tefillin because they would not take the mitzvah seriously, and they may end up sinning by not avoiding flatulence while wearing them, such a claim must be discarded in our days. It is a relic of a time where attitudes towards women was very different.

In part one, we looked at the unanimous opinion of the Rishonim that any man at all, unless he is ill, can be trusted to treat tefillin properly if worn during prayer. In our day, this assessment applies to any woman as well. To put it starkly, if, as R. Moshe of Coucy said, “there isn’t a person wicked enough that he can’t be trusted with tefillin,” this dictum certainly applies to women as well. In short, the prohibition against women wearing tefillin must go the way of the prohibition against women learning Torah; we must consign it to history.

Addendum: The Arukh Ha-Shulḥan

Rabbi Yeḥiel Epstein, in his Arukh Ha-Shulan (Oraḥ Ḥaim 38:6), offers a novel formulation of the halakha.[14]

Women and slaves are exempt from tefillin because they (tefillin) are a positive time-bound commandment, since we are exempt from tefillin on Shabbat and festivals. If they wish to be strict upon themselves and wear them, we stop them. This is not similar to sukkah and lulav where they are exempt but they may say a blessing even so, since tefillin requires extra caution with guf naqi, as we said in Shabbat, “Tefillin require a guf naqi like Elisha with the wings.” In the Jerusalem Talmud, Berakhot, it says: “They say over there that anyone who is not like Elisha with the wings should not wear tefillin.” Nevertheless, men are obligated so they will necessarily be careful with them during Shema and prayer. For this reason, however, they don’t wear them all day, as I stated in the previous paragraph. Thus, women, who are exempt, why should they put themselves into a situation with such grave concerns? For them, [wearing tefillin] during Shema and prayer is like men wearing them all day. Even though it says in Eruvin that Michal daughter of Saul wore tefillin and the Sages did not object, we cannot learn from that since they probably know that she was a totally righteous woman and that she knew how to be careful. All this applies to slaves as well.[15]

With the greatest respect for Rabbi Epstein, his reading of the Talmudic passages seems to me to be impossible. To return to the analysis in part one: If we interpret the Elisha passage to mean, “immaculately clean and superhumanly careful,” then, as the Geonim said, we don’t follow that position. For this reason, most Rishonim follow the plain meaning of the Talmud’s interpretation, that it means that it is forbidden to be flatulent while wearing tefillin and, therefore, unless one is like Elisha, one should not wear them all day.

Nevertheless, it was unanimous that wearing tefillin only for prayer poses no problem for anyone because it is easy to be careful during that short space of time. The reason this consensus was not applied to women (according to those who forbid them to wear tefillin), is because these rabbis believed that women could not be trusted to take the rule about flatulence seriously or to keep their minds on their tefillin, even for a very short time.

I suspect—and I am just speculating—that what motivates this unusual reading is the fact that Rabbi Epstein was living in a modern world and could not imagine that R. Moshe Isserles thought that women could not avoid flatulence, and that they were less spiritual or serious about Torah than men. In other words, it is possible that R. Epstein is trying to square the circle apologetically, to maintain the prohibition against women wearing tefillin which appears in the Shulḥan Arukh, but to make the reason for the prohibition less offensive and more believable to modern people. Whether or not this was the case, Rabbi Epstein’s interpretation contradicts the simple reading of the Talmud and the Rishonim and should be rejected le-halakha. Certainly, it should not be used in a last ditch effort to maintain a prohibition that is based on obscure sources and Ashkenazi custom, flies in the face of the Talmud, has no applicability or believability in the modern world, and offends the sensibilities of many Jewish women.

See: Tefillin and Clean Bodies – Part 1: Elisha’s Wings 


[1]  נשים ועבדים וקטנים פטורין מקריאת שמע ומן התפילין וחייבין בתפלה ובמזוזה ובברכת המזון:

[2]  נשים מניין? ‘ולמדתם אותם את בניכם’ ולא את בנותיכם, את שהוא חייב בת”ת חייב בתפילין נשים שאינן חייבות בת”ת אינן חייבין בתפילין.

[3] In his excellent article on women and tefillin“Gender and Tefillin: Possibilities and Consequences,” Rabbi Ethan Tucker explores the full implications of this Mekhilta text.

[4]  למען תהיה תורת ה’ בפיך למה נאמר לפי שנאמר והיה לך לאות שומע אני אף הנשים במשמע והדין נותן הואיל ומזוזה מצות עשה ותפילין מצות עשה אם למדת על מזוזה שהיא נוהגת בנשים כבאנשים יכול אף תפילין ינהגו בנשים כבאנשים ת”ל למען תהיה תורת ה’ בפיך, לא אמרתי אלא במי שהוא חייב בתלמוד תורה, מכאן אמרו הכל חייבין בתפילין חוץ מנשים ועבדים.

[5]  הנה כבר התבאר לך קראם לתפלין שלראש ושליד שתי מצות. ושתי מצות אלו אין הנשים חייבות בהן לאמרו יתעלה (ס”פ בא) בטעם חיובם למען תהיה תורת י”י בפיך ונשים אינן חייבות בתלמוד תורה. וכן בארו במכילתא.

[6]  מיכל בת כושי היתה מנחת תפילין ולא מיחו בה חכמים. ואשתו של יונה היתה עולה לרגל ולא מיחו בה חכמים.

[7]  מיכל בת כושי היתה מנחת תפילין, אשתו של יונה היתה עולה לרגלים, טבי עבדו של רבן גמליאל היה מניח תפילין:

[8]  התיבון הרי מיכל בת כושי היתה לובשת תפילין ואשתו של יונה היתה עולה לרגלים ולא מיחו בידיה חכמים ר’ חזקיה בשם ר’ אבהו אשתו של יונה הושבה מיכל בת כושי מיחו בידיה חכמים.

[9] See the addendum in R. Ethan Tucker’s (above referenced) article for a discussion of this point.

[10]  ונראה לפרש דטעמא למ”ד דלא הוי רשות משום דתפילין צריכין גוף נקי ונשים אין זריזות ליזהר.

[11]  אשה שלמדה תורה יש לה שכר אבל אינו כשכר האיש, מפני שלא נצטוית, וכל העושה דבר שאינו מצווה עליו לעשותו אין שכרו כשכר המצווה שעשה אלא פחות ממנו, ואף על פי שיש לה שכר צוו חכמים שלא ילמד אדם את בתו תורה, מפני שרוב הנשים אין דעתם מכוונת להתלמד אלא הן מוציאות דברי תורה לדברי הבאי לפי עניות דעתן, אמרו חכמים כל המלמד את בתו תורה כאילו למדה תפלות, במה דברים אמורים בתורה שבעל פה אבל תורה שבכתב לא ילמד אותה לכתחלה ואם למדה אינו כמלמדה תפלות.

[12]  כתב הר”ם נשים פטורות מתפילין מפני שהוא מצות עשה שהזמן גרמה שהרי אין מניחין אותן בשבת ויום טוב ואם רצו להניח אין שומעין להן מפני שאינן יודעות לשמור עצמן בנקיות ע”כ,

[13]  …משום דתפילין צריכין גוף נקי כאלישע בעל כנפים ונשים אינם נקיות לא נקיות גוף ולא נקיות דעת.

[14] He is inspired by the retort of R. Avraham Gombiner (the Magen Avraham) to Rabbi Meir Perels (the Olat Tamid), who asks that if women should not wear tefillin because they don’t have to be careful, why should the explanation of women being exempt because tefillin are a positive time-bound commandment ever have been offered. Just say that people who cannot be careful may not wear tefillin and that should include a subset of men and all women? R. Gombiner responds by saying that since men are obligated the force themselves to be careful, and if women were obligated they would also have to force themselves to be careful, but since they are not obligated they are not permitted to take that chance. This retort seems to be the jumping off point for Rabbi Epstein, who references Magen Avraham and states that his analysis makes this position work.

[15]  נשים ועבדים פטורים מתפילין מפני שהיא מצות עשה שהזמן גרמא דשבת ויו”ט פטור מתפילין ואם רוצין להחמיר על עצמן מוחין בידן ולא דמי לסוכה ולולב שפטורות ועכ”ז מברכות עליהן דכיון דתפילין צריך זהירות יתירה מגוף נקי כדאמרינן בשבת [מ”ט.] תפילין צריכין גוף נקי כאלישע בעל כנפים ובירושלמי ברכות שם אמרו תמן אמרין כל שאינו כאלישע בעל כנפים אל יניח תפילין אך אנשים שמחויבים בהכרח שיזהרו בהם בשעת ק”ש ותפלה ולכן אין מניחין כל היום כמ”ש בסי’ הקודם וא”כ נשים שפטורות למה יכניסו עצמן בחשש גדול כזה ואצלן בשעת ק”ש ותפלה כלאנשים כל היום לפיכך אין מניחין אותן להניח תפילין ואף על גב דתניא בעירובין [צ”ו.] דמיכל בת שאול היתה מנחת תפילין ולא מיחו בה חכמים אין למידין מזה דמסתמא ידעו שהיא צדקת גמורה וידעה להזהר וכן עבדים כה”ג [עמג”א סק”ג וב”י ולפמ”ש א”ש]: