September 4, 1976 by admin

Women’s Liberation & Jewish Law

Traditional elements of all communities have tended to favor the status quo regarding women — indeed, to shy away from anything which might rock the ancient boat. The Jewish community has an extra anchor for this attitude; all that has happened in our collective past has been codified into the religious legal system known as halachah (Jewish law and way of life), where the human input and the Divine source are mystically fused. The beauty of such a system is an ever-present sense of the Divine calling in all our actions (thus, observing the rules of kashrut — dietary laws — is a way of sanctifying our appetites even as we satisfy them). On the other hand, such a system is highly resistant to change, as in matters relating to women.

In many areas central to the life of a Jew, such as prayer and Jewish education, the Jewish woman has been poorly trained and negatively conditioned. Furthermore, in legal areas — such as status in the religious courts and in divorce proceedings — Jewish law, despite its overriding ideals of justice and equality, discriminates in favor of men. If we are to believe that prayer and knowledge are means of establishing a genuine relationship with God and the community, women must be encouraged to fulfill themselves in these roles and not depend on vicarious satisfaction through the males of the community.

Although there has been much improvement through the ages regarding their legal, educational and liturgical status, Jewish women of this generation will have to exert pressure to achieve an upward levelling, for halachic change will not come of its own. Thus if woman is to realize her full potential as a Jew, she must aim for nothing less than a blend of personal growth and political action. During the last few years, growing numbers of Jewish women have understood this and have addressed themselves to the fundamental issues of halachah and change vis-a-vis women’s role.

Before we examine some specifics in the areas of education and prayer, it is important that we understand the underlying philosophical assumptions that enable us to call for change while remaining fully within the halachic framework. In a traditional system, one must ask, what is the law? What has been done before us? These questions are important for they contain within them the search for Authority, for Divine sanction, and also a sense of rootedness and of community.

Some would answer that every detail of halachah was fleshed out at Sinai, fixed for all time. Yet one must be aware that great changes have taken place in halachah as it has grown over the generations. Indeed, by combining a sensitivity to contemporary needs with a passionate desire to remain faithful to the Torah and Revelation, rabbis in every generation succeeded in preserving a love for the tradition, a sense of its continuity and its binding quality even as they responded to new societal conditions.

It is important to emphasize this process because contemporary resistance to change has cloaked itself in a mantle of Biblical authority and rabbinic immutability. That claim simply does not hold up under an analysis of halachic development. In the Talmud there is a remarkable honesty about the reasoned analyses of human minds, pressures and counter pressures, majority decisions over miraculous proofs, even disputes between political parties with their vested interests on issues as theological in nature as Temple worship.

The status of women is but one area where tremendous changes have taken place from Biblical to Talmudic to medieval and modern times. For example, a Jewish male in ancient times could divorce his wife simply by driving her out. In Talmudic times, he at least had to show cause; in medieval times, he could not divorce her under most circumstances unless she gave consent. In the area of education, it was at one time forbidden for a man to teach a woman Torah, let alone Talmud. Today, even the most right-wing yeshivot approve of teaching women Torah and Mishnah, and many teach Talmud to women.

Certainly the religio-legal system was not frozen at one period of history, as some today would have us believe, and surely most of these gains were achieved because of human needs and pressures. Rabbinic leaders of today who are waiting for divine sparks to help them overhaul the discriminatory laws regarding the agunah (a woman who is not free to remarry because her husband never gave her a divorce or because his death was not proved) are breaching the divine and human trust placed in them.

Let us note here five specific patterns of change that are built into the halachic system and are found in abundance in the Talmud and later rabbinic literature:

(1) Deliberations in the abstract: Generally, these lead to additions in the area of ritual, reflecting a society which loved the tradition and tried to embellish it by assembling more and more ritual responsibility. Giving women new responsibility in prayer could well fall into this category.

(2) Hora’at sha’ah (a law relating to the needs of the times): Historically, such changes involved something which openly violated existing halachah but were promulgated because of an emergent and pressing need. Rabbis could use this category today to correct social injustices in divorce and agunah situations. Many individual rabbis throughout medieval and modern history have granted an agunah a divorce by a rather extraordinary stretching of halachic limits because they understood the dire need of the woman. It would take only a little more collective maturity to reformulate the law once and for all as a measure of hora’at sha’ah.

(3) Takkanah (a new ruling because of a sociological or economic need): Sometimes a takkanah was enacted by the consensus of the Bet Din (Law Court); sometimes it was the individual action of the main religious authority of the generation. The ketubah (marriage contract), for example, was created (sometime during the Second Commonwealth, fifth through first centuries B.C.E.) because of the growing need to protect individual women from an abusive marriage or divorce. Today, too, takkanot could be used to grant women participation in the marriage ceremony, to ameliorate their status in divorce law and in the religious courts, and to make prayer a binding mitzvah upon women.

(4) Minhag (custom): Many a minhag was woven into the halachah of succeeding generations. During the past few years, some women and men have begun to develop new minhagim for women, such as a ceremony welcoming a baby girl into the Covenant. There are many today who do not understand these new minhagim as they should be understood, i.e. as a sign of the revitalization of the tradition. Yet these new ceremonies and customs will in time undoubtedly be woven into the system, part of that marvelous Jewish quality of weaving Divine and human together for generations to come.

(5) The last pattern of change might be simply called “disuse,” Maimonides describes this process as the basis for annulment decisions of a Bet Din of a later generation which takes into account the fact that previous generations were lax in observing a particular halachah. Certainly as one reads through Biblical and rabbinic literature, one becomes aware that there are certain procedures which have simply dropped out of sight, even as new ones developed. To a great extent, we can see this process at work in the area of Jewish education and rabbinic studies for women, where the restrictions that existed for many generations are being ignored o^ nullified.

Although these patterns should not be applied lightly, it is well to be aware of the power of individuals and of the community to effect changes in halacha without endangering the validity of the system as a whole. Indeed, all changes concerning woman should be subsumed within one or another of these categories in order to preserve the fidelity to system and process, and strengthen our awareness of the continuity of tradition as we move ahead.

Beyond these categories, we must also bear in mind that much that pertains to woman in Jewish law is not necessarily religious or theological in origin (i.e., in no way serves the Creator) but stems from sociological, psychological or political roots. Cultures in the past, as today, continually interacted and influenced each other, and women were generally at second level in all cultures. There is not a religious or theological value to women in particular being excluded from a minyan, from testimony in the religious courts, from a fair divorce, from rabbinic training programs. My belief in the perfect God does not allow me to think that the Lord would favor one sex over the other in anv area of life. This does not mean that everything must be identical and interchangeable; it does mean that where inequity or abuse exists, it is a result of human imperfection, not God’s preference.

It is true that in many cases disabilities are pegged on scriptural statements; I would, however, argue that in many instances, custom or sociology preceded rabbinic enactment. An asmachta (support in scriptural text for rabbinic enactment) was found to endow a rabbinic position with authority and the important feeling of being continuous with the tradition, from Revelation onwards. New osmachtaot can and must be found to validate new realities.

Learning is crucial in the attempt to effect a change in women’s position in Judaism. The role of the individual in Judaism is related to the performance of mitzvah (obligation); thus women, who arc bound by fewer mitzvot, play a lesser role. The status of the individual within the community is related to learning; thus women, who arc limited in Jewish learning, have a lesser status. However, in great measure, performance of mitzvah is also related to learning. Jewish literature is replete with the theme of “greater is the one who learns for the sake of performance (of mitzvah) than one who learns for the sake of learning.” This means two things: one, that women must learn in order to know how to perform mitzvot; two, is that both role and status are functions of learning.

Women’s learning is crucial for a more significant reason. There is something inherent in the Jewish intellectual process that is intensely spiritually and emotionally rewarding, that binds a Jew more closely to the Jewish past and present. It is not simply an intellectual exercise, rather it is a genuine means of encountering God and experiencing a rootedness in the community. Women must be able in ever greater numbers to avail themselves of this rich nurturing process. In the best traditions of our people, women should schedule time for Jewish learning — even a quarter of an hour daily can be fruitful. It is difficult to do this alone, therefore one should form a hevruta — set aside a special time with a friend or neighbor or husband to study texts.

As Jewish women begin to study rabbinics, exegesis, history and theology in greater numbers, an educated laity and leadership of Jewish women will emerge and, hopefully, pave the way for eventual acceptance of women as authors of scholarly works, teachers of Talmud and rabbinic literature, judges in the Bet Din, rabbis,poskim (religious arbiters), and even heads of yesblvot. The best way to counter ridicule of this concept is to provide a few models as precedents. And the best way to generate these models is to educate ourselves.

Admittedly, it is very difficult and costly these days to become well-educated. Women must pressure institutes of higher learning to meet their needs. We must duplicate in many places the kollel system in which young men by the thousands are able to study Talmud intensively, full time, over several years while receiving a stipend to cover living costs. We must learn to approach foundations, federations, and philanthropists in our own communities to underwrite such facilities for women. We must also revamp our elementary education curricula to encourage young girls along these paths early in their lives.

The question of women rabbis is perhaps the most difficult and crucial in woman’s striving for equality within Judaism. I must admit that, having been nurtured in the Orthodox community, my initial reactions to the thought of a woman rabbi were negative. I have since come to believe that if a woman wants to serve the Jewish community, to teach and to lead, and has the necessary education and commitment to serve as a model, we should be willing to learn from her. It is learning, diligence, a mastery of the sources and personal piety that qualify one to become a rabbi — not any physical or sexual characteristics. The rabbinate has been an exclusively male domain because only men were welcome in the house of study. The denial of the title “rabbi” to women also closes many other doors to them; many Jewish educational and communal institutions consider for top executive positions only persons with a rabbinical title.

Ordination is currently attainable only in Reform and Reconstructionist seminaries. The (Conservative) Jewish Theological Seminary rejected such a suggestion in 1974 and again in 1976 on grounds that the community was not ready for it. No woman has tried to enter the rabbinic program of Yeshiva University or any other modern Orthodox yeshiva, and such thoughts have not even penetrated the consciousness of the right-wing yeshivot.

Despite this obstacle, the initial process of education of women must begin. Beyond its own satisfaction, rabbinical studies are a fine preparation for the teaching of Jewish studies, an expanding field at secular institutions. Moreover, there is a great likelihood that a growing body of women readied at different levels of training will have a great effect on opinion regarding ordination. Many halachic decisions are made bedayavad — in full consideration of existing realities. And finally, if all else fails, one can seek out the few sympathetic rabbis (even in the Orthodox community there are some) who, without fanfare, would be willing to ordain a qualified woman in the face of their colleagues’ wrath and censure.

Gradually, the model of serious, successful and devoted women rabbis will speak volumes louder than the endless debates on both sides. (Space does not permit a discussion on the issue of marriage and divorce and the religious courts. I would simply note here that rabbinic and halachic input from women, particularly women rabbis, would have great effect in removing some of the legal disabilities. Short of that, the same approach used in seeking ordination could be used to pressure for change in these areas. Jewish women should compile and circulate a list of such rabbis sympathetic to their needs. This would reinforce the development of halachah in the right direction.)

The second area where change must take place is the realm of worship, both within and outside the synagogue. The 1973 Rabbinical Assembly (Conservative) decision recognizing women as part of a minyan (quorum of worshippers) sparked considerable controversy. But what was striking was the relative absence of discussion about a fundamental question, namely that women are asking for a greater role and responsibility in prayer.

To some extent, the disregard of this central issue can be explained historically and sociologically. Men did not and do not have expectations of women in this area. The woman was relieved of the obligations of prayer, because of her duties at home, and because of the desire to keep her out of the public sector, where organized prayer took place. As she was relieved of mitzvah-obligations bound to time, she suffered a loss of mitzvah-rights. Even when she grew out of her limited sociological role, began to function outside the home and to have many more years of life not involved in child-raising, the halachic tradition served to keep her incomplete and immature vis-a-vis liturgical responsibility.

In truth, the notion of time-bound mitzvot recognizes a real situation that many a woman confronts during the early years of caring for babies, when it is often difficult to find a few moments to brush her teeth, let alone free herself for prayer (although there are many mothers of large families who have never skipped the morning prayers in their lives). One can, however, conceive of a halachah that would require women to pray daily, yet exempt them during certain periods of their lives, perhaps between the birth of the first child and until the youngest child is 7, or 1 0, or possibly Bar or Bat Mitzvah and assumes the responsibility of prayer himself or herself. I also suspect that if she developed the habit of prayer many a woman would manage to find time to continue even during her active child-bearing years. Prayer doesn’t need holy space to legitimate it, and the truth is that more Jews pray daily in their homes than in shuls.

I have sometimes suspected that if I, as a woman, were not bound to keep Shabbat and kashrut, I would do everything in my power to see that my husband and sons were able to fulfill these mitzvot — but I personally would feel free to sample non-kosher restaurants, eat hot-dogs at a baseball game, and probably not hesitate to expand my enjoyment of the Sabbath by ignoring certain restrictions. Yet the beauty of the halachic system is that it recognizes this inherent inertia in human beings. We do what mitzvot are required of us. We do not normally actively seek out additional obligations. I do keep Shabbat and kashrut because I am bound by Jewish law. In turn, I cherish and am drawn to these mitzvot, and I grow as a Jew in observing them. If we feel that prayer is an important part of the l-Thou relationship, that it is important for the identification of the Jew within the community, then women, too, should be fully obligated in this area. We are not a praying generation to whom prayer comes naturally, and unless we are bound by halachah, it is unlikely that inner motivations will bring us to it. What has not been a mitzvah for women should now become one; until that time, women should begin to act as if it already were a mitzvah.

As these obligations are established, so should concomitant rights be restored. Those women who experience prayer primarily within the context of a community, can do much to prepare for their increased participation in the synagogue, even before individual rabbis learn to “count” women as members of a minyan. We must call for classes in prayer — the understanding of the content and the practice of the ritual forms. We should begin to attend a woman’s minyan — and learn how to organize one; begin to say kaddish for a deceased parent; ask — or pressure — for an aliyah (being called up to say the blessings before and after the Torah reading); and learn to read the Torah with the correct cantillation.

Women who attend an Orthodox synagogue with a mechitzhah (partition between men’s and women’s sections) have a right and a responsibility to improve the situation in the women’s section so they can at least feel part of what is going on. A friend recalled that in his shtetl, his mother and her friends used to shout down from the shul’s women’s balcony section and not let the service continue until they could hear every word that was said.

The mechitzah in and of itself does not discriminate; under proper circumstances, it can generate a sense of equality in the presence of God. However, most mechitzot do not have that effect. I have sat behind mechitzot where I could see and hear nothing. It would be worthwhile to suggest switching for just one Shabbat — men in the women’s section and vice versa. Both would gain new insight into the synagogue service and the experience of prayer! I happen not to be opposed to male bars, women’s tea rooms, and the like. The sense of comradeship with the members of one’s sex is not a bad thing. But to use the synagogue as a male refuge is blasphemous. Women must educate the community that the synagogue is the house of God for all Jews.

And finally, we must develop new roles in liturgy to celebrate Jewishly important events in our lives — which is what Jews have always done. Indeed, one of the most powerful elements in Judaism is that we sanctify every act and every important step in life with a ceremony or ritual — so that it elevates its status from a biological or psychological occurrence to an event celebrated in the presence of God and community. The most creative event in a woman’s life is the act of giving birth. Yet it. is striking that we have as yet neither ceremony, blessing or ritual to mark this holy event in a religious context.

The assumption that women can finally mature as Jews, as theological beings, as contributors to and molders of Judaism, is an exciting challenge in terms of its potential effect on Jewish destiny. The possibility that a whole new generation of women might grow up with spiritual expectations other than the lazy ones which we fed upon — that image alone should serve to spur change and neutralize contemporary opposition to halachic adaptability.

With all these helpful suggestions, we must nevertheless recognize the serious gap that still exists between individual needs and community traditions. Becoming learned and groping for genuine experiences in prayer, and pointing out the historical precedents for halachic change will not solve the halachic problems of Jewish women. We are still faced with a largely intransigent establishment and with a community which backs away from visions of confrontation.

Some women who want change badly enough will wrestle with the choice of opting out of the community altogether. I would argue that this is not a solution — neither for the individual, nor for the Jewish community. It is better — more painful, but more fruitful and more Jewish — to be a maverick within the community, than a tzaddik (righteous one) outside it. Furthermore, we have a responsibility to the community; it needs our participation as much as we desire to assume new responsibilities; it needs those who pressure for revitalization from within, as much as every Jew needs a vital community.

I do not wish to flout rabbinic leadership; rather, I would hope it would grow and have greater impact on my life. Yet rabbinic leadership today is still making rules and creating conditions that keep women in a secondary place, and we cannot accept all of these rules passively. Change must be generated by women who are observant, loyal to the halachic system and to the Jewish community. There is a psychological difference between breaking the rules and growing beyond them. The second perspective upholds the integrity of tradition, and maintains continuity with it, as in each generation of Jews in renewing their covenant with God.

It will help us if we view our self-actualization in Heschelian terms — that each Jew should see him/herself ascending the ladder of observance, going higher and higher as he/she gains experience and sensitivity. It will aid us if we remember that we are moving towards equality in a system whose basic tenet is equality; thus, we are helping Judaism live up to its own values by eliminating the liabilities and limitations placed upon one sex. It will help us, too, if we remember and understand that the halachic system is not a house of cards ready to topple if we blow at it. Our long history has proved that faith in Judaism’s ability to mature is well placed.

The accusation has been made that it is not really interest in Judaism, but rather feminism that is the thrust behind the new push for women’s self-actualization within Judaism. I believe that there is some truth to this charge. Yet I see it as a blessing.

What is it, after all, that women are seeking? They are not asking to be released from religious obligations, rather they are asking to enter more fully into the spiritual life. The notion of kiruv levavot (welcoming souls ready to embrace the Jewish tradition, for whatever reason) is a powerful one that is lost on all but a few of the organized bodies within contemporary Jewish life.

If feminism is a way back to Judaism, we should appreciate it, not only in terms of numbers so hard to recoup after the Holocaust, but for the new blood and life it will bring to Jewry today and tomorrow.

Blu Greenberg lectures on Religious Studies at the College of Mt. St. Vincent and is a graduate student in Jewish history at Yeshiva University. She is a faculty member of the Institute for Women Today, an inter-religious feminist organization. She delivered the keynote address to the First National Jewish Women’s Conference in February, 1973. A longer version of this article is part of an anthology on the Jewish woman currently being prepared by Rachel Adler and Aron Hirt-Manheimer. 

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