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Book Review-Gender Equality and Prayer in Jewish Law
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Book Review-Gender Equality and Prayer in Jewish Law

Their book is genuinely intended to show those whose commitments on issues of gender are a priori that there is space for them within halakhah.

JOFA Journal
JOFA Journal

Gender Equality and Prayer in Jewish Law

Ethan Tucker and Micha’el Rosenberg

K’tav/Mechon Hadar, 2017, $24.95

In Gender Equality and Prayer in Jewish Law, Rabbis Ethan Tucker and Micha’el Rosenberg have produced a book that is noteworthy for its integrity, accuracy, and clarity. The authors worked for many years to refine the book’s content and responded to critiques with thanks and openness to revising their arguments, if not their conclusions. (Full disclosure: I am thanked for my “sharp and serious critiques and criticisms” [p. 9], ongoing from when I was a stripling Orthodox rabbinic adviser at Harvard Hillel while they were undergraduates.) The formal elements of their arguments are consciously crafted to fall within traditional and contemporary Orthodox halakhic parameters. The quality and humility of their work can serve as a model for private and public halakhic conversations about such issues.

This hard-earned and well-deserved praise does not mean that the book ought to succeed in directly affecting the davening practices of halakhic communities, nor that it successfully justifies the gender-identical practices of current prayer communities that otherwise follow the halakhot of prayer. It is vital to understand why, even if the explanation is lengthy.

In Talmud Sanhedrin 17a, Rav Yehudah, citing Rav, states that only scholars who know how “to declare the sheretz pure from the Torah” may be seated on the Sanhedrin. In other words, membership on the High Court was limited to those who were able to construct intellectually plausible halakhic arguments with results that contradicted explicit Torah verses. This does not mean that such scholars were entitled to walk into the Temple with a dead sheretz in hand. On the contrary: It means that intellectual plausibility cannot be a sufficient basis for halakhic action, because intellectually plausible halakhic arguments are available to justify any action. Supple and open minds are necessary for halakhah to respond effectively to reality; authority is necessary for halakhah to mean anything at all.

Put differently, where there is inadequate halakhistic will, there is no halakhic way. This is true whether or not one believes that there ought to be such will and way. The key questions are what constitutes adequate halakhistic will, and what—beyond intellectual plausibility—is necessary for an argument to gain authority.

Rabbis Tucker and Rosenberg perform a valuable public service by clearing away the claim that halakhic change to the intersection of gender and prayer is theoretically impossible. (Claims of theoretical halakhic impossibility almost always reflect the intellectual horizons of the claimant rather than those of Torah.) They also make a prima facie case that no one has successfully articulated a convincing modern rationale for Orthodoxy’s gender-differentiated practice.

This leaves them in the following position: They acknowledge that past halakhah has always had—and required—gender-differentiated prayer roles. (Here they implicitly exclude American Conservative Judaism from the live halakhic tradition). However, they find continuing that differentiation to be a morally intolerable signal that women are not full citizens of the Jewish polity.

To resolve this tension, they propose that communities endorse one of two halakhic moves:

  1.    Asserting that the rationales offered in the past for gender-differentiation would yield different or even opposite results today. Excluding women used to be a way of maximizing the honor of God or the community in a prayer context; today it diminishes honor.
  2.    Asserting that biological women living in progressive contemporary societies do not fall under the category of “nashim” found in past halakhic texts. (This would likely entail saying that such biological women are bound by mitzvot aseh she-hazman graman.)

Each of these moves is halakhically conceivable, but neither of them is halakhically compelling in and of itself. The real issue is whether these proposals have enough authority to legitimate action on the part of those who buy into the underlying analysis. (The book’s claims about citizenship, honor, and womanhood require separate treatment; here I am addressing those who are unalterably convinced of these claims.)

Arguments about authority tend to be inherently arrogant, circular, and off-putting. Asserting the need for great scholarship, for example, implies that the level of one’s own scholarship is sufficient to judge that of others. Claiming that community X isn’t frum enough to self-legitimate its idiosyncratic practices invites a recitation of one’s own community’s all-too-evident flaws. I have little expectation from the attempt, and yet I cannot simply concede the field.

Halakhic legitimacy for a given position, as I understand it, requires that it be supported by scholars with some degree of some or all of communal recognition, personal character, personal scholarship, relevant experience, sociological responsibility, intellectual persuasiveness, moral persuasiveness, and spiritual persuasiveness. (This list may not be exhaustive.) All these are evaluated within the boundaries of those who accept the authority of current halakhah as binding Divine Law.

This seems intuitive to me, but I recognize that my intuition is not universally shared. So here is a preliminary and inadequate effort at explication.

A fundamental assumption at the heart of Torah is that the Jewish people constitute a political community bound by religious law. Like any constitutional republic, halakhah limits formal political influence to those who accept the authority of the constitution and its authorized interpreters.

Those interpreters may well get it wrong; the existence of the sacrifice brought when the Sanhedrin errs demonstrates that the Torah assumes the fallibility of its authorized interpreters, and that the Law has meaning independent of their interpretations.

As an analogy: I believe that the Supreme Court has often gotten the U.S. Constitution wrong. But I accept that its interpretations are binding law until I succeed in getting the Supreme Court to rule differently.

Of course, halakhah has no Sanhedrin nowadays. No one should consider granting the Rabbanut, the Moetzet Gedolei HaTorah, the Rabbinical Council of America, the International Rabbinic Fellowship, Beit Hillel, Tzohar, or any other existing body anything resembling that sort of authority. These groups are not representative of the halakhic citizenry as a whole, and often they are not accountable to anyone but themselves.

But we can and must maintain a middle ground between oligarchy and anarchy, or between the ideology of da’as Torah and the belief that everyone can decide the legal meaning of the Tradition entirely and unaccountably for himself or herself.

I acknowledge with shame that the battle, as it stands, is largely lost. The halakhic citizenry is a small percentage of the Jewish people. The overwhelming majority of Jews do not see themselves as bound by Jewish law (except perhaps, to some extent, on some issues of personal status, where the secessionists are correspondingly more impassioned). Most halakhists make their decisions in total disregard of the interests and values of the Jews who reject their own authority, let alone of those who reject the authority of halakhah entirely; this generates a vicious cycle of alienation. Despair would not be unreasonable, and allies are desperately needed.

There is no question that Rabbis Tucker and Rosenberg are such allies.

Their book is genuinely intended to fortify halakhah, and to show those whose commitments on issues of gender are a priori that there is space for them within halakhah. In this I wish them all success.

However, I believe that the currently appropriate space is that of loyal opposition. The loyal opposition is entitled to keep agitating for change, but must recognize the authority of the legal status quo. But for the role to be meaningful, and therefore psychologically tolerable, it is vital that those who support the status quo genuinely listen to those who seek change, acknowledge that change is not inconceivable, and indicate that they would themselves become a loyal opposition should change happen legitimately. Failure to do these things breeds cynicism, and then disengagement and/or rebellion.

Furthermore, if it were likely that eliminating gender distinctions in prayer would engender a mass return to general halakhic loyalty, or prevent a mass exodus, I think a way would be found. For exactly such purposes, the category hora’at sha’ah (emergency decree) was instituted, even if all other halakhic mechanisms were found too implausible.

But I see no evidence that existing gender-identical services attract large numbers of Jews to recognize the authority of the rest of halakhah, although Rabbis Tucker and Rosenberg strongly encourage and very much wish this. We are fooling ourselves if we believe that prayer issues are all that keep large segments of American Jewry from embracing kashrut, taharat hamishpahah, endogamy, and the biblical prohibition against certain male homosexual acts as binding Divine law, to list just a few issues.

We are equally fooling ourselves if we expect that creating gender-identical prayer services in response to sociologically based critiques will bring peace to those who already love and practice halakhah but have moral difficulties with its positions on gender, for whom prayer is often a secondary issue. More often, by making it evident that halakhah cannot stand against.

Rabbi Aryeh Klapper is the dean of the Center for
Modern Torah Leadership and rosh beit midrash of its
Summer Beit Midrash program. More of his Torah and
information about the center can be found at www.torahleadership.org.

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