Understanding Orthodox Halachic Innovation: Rabbi Lopatin’s Tribute to Rav Hershel Schachter, shli”ta

May 5, 2010

Rabbi Shai Held, Rosh HaYeshiva of Yeshivat Hadar in New York,  recently wrote an Op Ed critical of Rav Hershel Schachter’s position prohibiting the ordination of women as rabbis.  Rabbi Schachter, perhaps the preeminent Rosh Yeshiva at Yeshiva University and a student of Rav Soloveitchik, zt”l, was one of many speakers at the recent Rabbinical Council of America convention where the issue of women rabbis in Orthodoxy – and, women’s roles in Orthodox Jewish communal leadership in general – was discussed and eventually voted on.  Rabbi Held mentioned, accurately, that Rav Schachter put the ordination of women in the category of “yehareg ve’al ya’avor” – those things that a person has to give up his or her life for rather that doing them.  Rav Schachter further invoked the ruling of his rebbe, Rav Yosef Dov Soloveitchik, that it was halachically impermissible for a woman to be a rabbi.  Many of the speakers at the convention, some of whom are poskim, halachic decisors like Rav Schachter is, disagreed with this understanding of the scope or application of Jewish law.  Moreover, even Rav Schachter, to the best of my understanding,  is in favor of women’s Torah learning and teaching on the communal level;  everyone at the convention, including Rav Schachter, would agree with Rabbi Held’s view that, “one of the crucial mandates of the hour is to create more opportunities and contexts [within halacha (ed.)]for women’s voices to be heard in Jewish life.”

Where I want to strenuously, and lovingly, disagree with Rabbi Held is in his implication throughout his Op Ed that Rav Schachter, and those of his ilk, are against “chidush bahalacha”, new, innovative ways of understanding the classic texts and traditions.  Nothing could be farther from the truth, especially since Rav Schachter’s speech at the conference delved specifically into the requirement  of every contemporary halachic decisor to examine the tradition and the text based on his (or her) own understanding: “l’fi r’ot eini hadayan” – according to the way the judge – of any era –sees it.  Rav Schachter spoke eloquently and passionately of how all the rules which seem to prohibit a lesser and later court from ruling against a greater and more numerous earlier court did not apply to understanding halacha, but, rather, only to rescinding a “takana” an edict.  When it comes to understanding the infinite word of God, especially in the world of Halacha, Rav Schachter proved beyond a shadow of a doubt that that understanding cannot  be based on “status quo”, as Rabbi Held claims, but, rather, by the most contemporary understanding of the halachic decisor who is examining it.

Rav Schachter gave as examples of this new and fresh approach that is required in learning and issuing halachic rulings, Rav Moshe Feinstein of the 20th century and the Vilna Gaon, the great Lithuanian decisor of the 18th century.  The Vilna Gaon regularly disagreed with Rishonim and Gaonim, authorities of the centuries and millennium before him.  He had no choice: he had to be honest, and if he felt they didn’t read the tradition and the texts (Talmud and Midrash) correctly, he had to disagree with them.  When it came to Rav Moshe Feinstein, Rav Schachter said that Rav Moshe, zt”l, wasn’t even so familiar with many of the opinions of the Acharonim, the big names of the three or four centuries before him,  and that he didn’t feel a loss: It’s always interesting for a halachic decisor to see what others are thinking,  but in the end of the day it doesn’t matter: halachic decisions are not just copied from the past, they are based on the latest, freshest thinking of the individual halachic authority.  Independence and, yes, innovation, where it is called for to bring out the truth of the Torah, are the hallmarks of the Orthodox halachic process, and from what Rav Schechter said at the RCA convention, he was their biggest advocate.

In fact, even though, in general, the authorities of the Gemarra (Amoraim) committed themselves not to take on the understandings of their predecessors, the authorities  of the Mishna (Tanaim), Rav Schachter showed how in some ways the great Amora Rav actually did disagree with Tanaim, as an Amora, not under the guise of a Tana himself, though he is sometimes called a Tana.  The great halachic and aggadic authority, the Netziv (19th century), Rosh Yeshiva of the storied Volozyn yeshiva developed this concept of “chidush bahalacha” – innovation in the halacha – long before any of the later authorities that Rabbi Held quotes, and Rav Schachter is squarely in the tradition of the Netziv, having studied with Rav Soloveitchik, himself a scion of the Volozyn tradition.

The very idea of ordaining women being “yehareg ve’al ya’avor (die rather than violate)” is based on an innovative understanding of the law in the Talmud of “arkesa d’mesana” – “laces (?)of the shoes”.  Rav Schachter explained this Talmudic concept in his talk that even the smallest infraction can become “yehareg ve’al ya’avor” – even how you tie your shoe – if it is in the context of “she’at hashmad” – a time when Jews are being persecuted for keeping Judaism, even down to the smallest detail like how Jews tie their shoes.  The innovative read on this Talmudic concept was pioneered by Rav Schachter’s teacher, Rav Soloveitchik, in taking on what the Rav saw as the “she’at hashmad” in the and ‘50’s and ‘60’s, when the Conservative and Reform movements’ popularity in Jewish circles created an atmosphere of pressure on Orthodox Jews to compromise their halacha and conform to Reform and Conservative styles of Jewish worship.  Thus, even davening in a Reform or Conservative synagogue, with mixed seating and other infractions of halacha (in the eyes of Orthodoxy), while not normally seen as a central violation meriting “yehareg ve’al ya’avor”, in the context of the social pressures and climate of the ‘50’s and ‘60’s were classified by the Rav as “yehareg ve’al ya’avor”.  Wow!  While we may recoil from this ruling, to use Rabbi Held’s term, it is certainly an innovative and revolutionary way of viewing a two thousand year old halacha from the Talmud.  Rav Schachter continues in Rav Soloveitchik’s innovative interpretation, by seeing the act of ordaining women rabbis as Orthodox Jews knuckling under pressure from a climate of feminism in society and amongst the other movements of Judaism.

Orthodoxy believes in a divine, infinite and eternal Torah that was revealed to Moshe at Sinai and through the 40 years in the wilderness.  To understand that Torah properly, requires each Torah scholar and halachic authority, in every generation, such as Rav Schachter, to think for themselves, to figure out what God told us, to understand the texts of our tradition in a way that feels true to the person reading them.  The halachic process, within the theological underpinnings of Orthodox Judaism, thrives on new understandings of the ancient texts and traditions; these new and innovative understandings, “chidushei halacha” are  celebrated as the contribution of each individual mind, in every era, to give us a better understanding of what God commanded Moses and the Children of Israel in the written and oral law so many years ago.  It is ever fresh, ever eternal, and ever open to debate and new challenges.     RAL

Maha – right

June 3, 2009

Los Angeles is a continent away from Sara Hurwitz’ controversial ordination as MaHaRaT by Rabbi Avi Weiss. As a result, almost no one here in the West seems to yet know or care. Perhaps the only advantage of living in this parallel Modern Orthodox universe is that it affords one the possibility of viewing this event, along with the discussions it has generated from, well, a distance. And from a distance, it appears to me that much of the discussion that this event has generated – discussion about the propriety of ordaining women – is actually missing the mark. I see Sara Hurwitz’ quasi-semicha as indeed sparking several important discussions, but none of them about women and ordination  per se.


Chief among the discussions that seems to largely miss the point, is the “halachik discussion”, i.e. the discussion as to whether there is a halachik barrier to a woman serving as a rabbi. To folks who have served in the congregational rabbinate, the question seems almost nonsensical. I have been blessed to serve as a congregational rabbi for the last 19 years.  The sections of  Shulchan Aruch that have governed my work are entirely egalitarian. The laws of visiting the sick and of comforting the mourner, the laws of rebuking people without publicly embarrassing them, and the laws of tzedaka and proper treatment of synagogue employees are not gender-sensitive. The Torah that God has merited me to teach has been drawn exclusively from texts that Modern Orthodox Jews believe are open to everyone regardless of gender. Ninety percent of the answers that I have given to questions of practical halacha have come straight out of the standard halachik literature, and the other ten percent  – questions that I felt truly needed adjudication –  I submitted to people who are formally authorized to render decisions. The laws of Helping Jews Work Together On Committees are not halachikly codified at all. The question as to whether a woman may be appointed to a position of srara (of authority over a community) has been effectively addressed through the halachik recognition that any leader who is freely elected by (and can be fired by) a community, and whose authority is shared with lay-leadership, is not in fact exercising srara.


What are the important discussions that ought be raised by Sara Hurwitz’ ordination? I’d propose there are three:


(1)   Are we as committed as we should be to having the best leaders that we can have?

The American Orthodox community, now as always, is in need of creative, visionary, dedicated rabbinic leadership. (The looming day school crisis underscores this need well.)  Arguably, we have been facing our challenges in recent years with much of one hand tied behind our backs, as half of our population (the female half) has not been encouraged or been given the necessary training to provide the sort of  broadly-impacting religious leadership that is invested in the rabbinate. The discussion we ought be having is not about “can women be rabbis?”, rather “are we serious about having the best possible religious leadership?”  Assuming that we are, I propose that we ought be opening the rabbinate to women not to address feminist concerns, but in order to have the best chance at producing the rabbinic leaders that we need.  This isn’t a “women’s issue”. It’s a leadership training issue.


(2)   Are we prepared to correct a fundamental illogic in our approach to Talmud Torah?

Opening the Orthodox rabbinate to women is also about fixing a glaring inconsistency in our educational philosophy. We are today ideologically committed to the proposition that Talmud Torah is an equal-opportunity value, and that all Jewish people should pursue the study of whatever area of Torah they desire. This obviously includes the kind of intensive study of practical halacha that characterizes a semicha curriculum. We already confer degrees on men or women who have completed courses of study in TaNaCH, Jewish philosophy, or even Talmud. But for reasons more social/political than logical or fair we won’t do so for Jews who have completed the requisite study of practical halacha, when those Jews lack a “y” chromosome. This arbitrary discriminatory practice reflects poorly on us, and for the sake of our communal integrity and the uprightness of our educational system needs to be addressees one way or another.  


(3)   Recognizing Sara Hurwitz’ ordination not as a revolution but as a challenge

A third meaningful discussion that we ought to have is about the twin realities that over the last decades we have created a community in which Orthodox women have become more deeply educated, have taken some leadership roles in educational and communal settings (and for that matter in rabbinic settings as well in several instances though usually without a title), and that our community has changed for the better as a result. Our schools have become infinitely more creative, our homes are religiously much deeper, and our communal stands against sexual abuse and recalcitrant husbands more robust. And these are but a few of the positive changes that have resulted. MaHaRaT Hurwitz’ ordination should not be characterized as – and in fact isn’t! –  a challenge to our traditional ways. It is rather a challenge to us to keep striving for new and better ways to make our community better, wiser, and holier through opening opportunities for all Jews, men and women alike.