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“The books, the compositions, and the commentaries are our teachers, and all is according to the understanding of the intellect and reason.” R. Sh’muel ben Moshe di Modina

Sunday, February 5, 2017

S'rara again??

It's been a long hiatus. But, given the latest ruling from the OU on the matter of women clergy, I figured I'd use this platform - it's as good as any - to upload a piece that I wrote a bunch of years ago, commissioned by an "Orthodox Feminist" organization, to respond to the RCA's prohibition of having women serve as synagogue presidents. After I completed it, the organization decided not to use it - too provocative, not diplomatic enough, whatever.

I didn't bother to change it now for the purpose of "women as clergy" (rather than lay leaders). It is not an identical matter, though not much less obvious as to why it is not problematic, but interestingly, the OU chose to raise the matter of s'rara - positions of authority - as a reason to prohibit women from serving as clergy (just as they did to prohibit women lay leaders).

Therefore, my examination of the matter of s'rara, and, in particular, a careful discussion of the approach of the Tosafot, in contrast to Maimonides' ruling, is totally relevant, and I have not seen anyone explain the approach of the Tosafot completely, as I believe I do (while keeping it short).

Women as Lay Leaders in the Jewish Community

Debby Koren

When Eldad and Meidad began prophesying in the Israelite camp, Joshua saw this as a threat to authority, and suggested to Moshe: “restrain them! (k’la’em)” (Numbers 11:28). Rashi explains that by the word k’la’em, Joshua is suggesting to burden them with community service, and they will cease (kalim, thereby proposing a shared etymology) by themselves.  Rashi’s commentary is drawn from Tractate Sanhedrin 17a, and the Tosafot (ad loc. at the incipit v’hem kalim me’aleihem) explain that they will cease prophesying because the Sh’khina does not rest upon someone in sadness, but only out of joy.  Perhaps the community service that Joshua had in mind was the position of synagogue president, certainly a burden and responsibility that one does not agree to do for the joy that it brings those who hold this position.

Considering the thankless burden that is any such communal position, one must wonder why many people are not amenable to enlarge the “camp” of those special individuals who are nevertheless willing and able to take such tasks upon themselves, by including women as potential lay leaders.  In fact, their inclusion could bring innovative perspectives.

Several quite thorough articles have appeared since the question of women as lay leaders first arose a number of decades ago.  The articles cite rabbis who find no halakhic objection to women serving in positions on synagogue boards, or as synagogue president, and rabbis who find hakakhic objection.  And then there are rabbis cited who admit that there is no technical halakhic objection, but, nevertheless, state that for public policy reasons they oppose the idea.  This short article would be superfluous if its intent were to reiterate what has already been written; neither is its short format suitable for that task.

Rather, the goal of this brief article is to point out some ideas to consider, while studying the issue in greater depth; clarifications, if you will, that shed perspective on the halakhic discourse and on the non-halakhic public policy concerns.

Before the question of women serving in lay leadership positions arose, two related issues were extensively debated in responsa literature in the first half of the twentieth century:  women’s suffrage in the Jewish yishuv in Palestine, and, later, the matter of women serving in public positions, such as (civil) judge, Knesset member, police commander, etc. in the State of Israel.  Often, these responsa are presented as precedent in discussions of the question of female laity. 

However, if the question of women’s suffrage or their assuming public positions were precedent, then I could conclude this article now.  In the Modern Orthodox community, I do not believe that there is anyone who would refuse to make aliya because there are Jewish women serving in the Knesset, because they might have to face a female traffic judge, or because the president of the Supreme Court in Israel is a woman.  (Outside of Israel, one could claim that s/he is subject to dina d’malkhuta, the prevailing government law.)  Nor do I believe that the Modern Orthodox community would agree with R. Moshe Feinstein’s declaration (Igrot Moshe Yo-re De’a 2:45) that the Israeli government is in the hands of heretics and apostates (kof’rim u-mumarim), who are responsible for the presence of women in government positions of authority.

In fact, even the hareidi community has apparently accepted the presence of women in public leadership positions, and though they do not permit women on their own party lists, they will enter coalitions with parties who do.  And if the Speaker of the Knesset is a woman and she orders a disorderly hareidi Knesset member to leave, he would obey, rather than resign his seat.

Therefore, notwithstanding the commonality of the primary sources that are used in both discussions - that of women’s suffrage or women holding public positions, and that of women as laity – it stands to reason that there must be some distinction.  The opinion of those decisors who permitted women’s suffrage and participation in public life has prevailed, hands down, in no small measure due to the desire on the part of the religious community to be part of a modern state rather than to withdraw into a self-imposed ghetto, as did the Neturei Karta.

What, then, is different about the synagogue setting that cultivates a more conservative attitude?  Before offering a response to this question, let us consider the primary sources that are at the core of every discussion on suffrage and the inclusion of women in positions of leadership, public or religious.

The source that is invariably presented as the primary limiting halakhic factor is Maimonides’ ruling: “One does not appoint a woman as a monarch, as it states ‘[you may set] over yourself a king’ - but not queen.  Similarly, with all assignments in [the nation of] Israel, only a man is appointed to them.” (Laws of Kings, 1:5)  Maimonides’ commentators point to the Sifrei’s halalkhic midrash on Deuteronomy 17:15 as the source for his ruling, as we do not find this ruling in either the Babylonian or the Jerusalem Talmud.

However, a number of questions about Maimonides’ ruling immediately arise.  The midrash only refers to a monarch.  On what basis does Maimonides extend this restriction to other positions?  Further, the midrash continues its exegesis on the portion of the verse that states “one chosen by the Lord your God”, and explains “by the word of a prophet”.  Even if the intent of this Tannaitic midrash is to include all positions that are appointed by the word of the prophet, received from God, what positions would this include, other than a king?

A variety of solutions to these questions are found in the literature.  Possible explanations for Maimonides’ extension of the restriction to all assignments include a reasonable suggestion that Maimonides had a different version of the Sifrei (e.g., a different version is found in M. Y. Kahana, Kit’ei Midrashei Halakha min HaGniza, Jerusalem, 2004, p. 375), or that Maimonides’ ruling regarding women is parallel to another, similar ruling about gentiles and converts (Laws of Kings 1:4), for which textual basis is found in the Talmud (Y’vamot 45b).

We also find a range of interpretations regarding the types of assignments that Maimonides had in mind.  In his ruling on gentiles and converts, he uses the term s’rara, which refers to positions of authority, and this has become the term that is used in the halakhic discussions about women, as well.  But exactly what types of positions are considered s’rara and how they are appointed are subjects of debate. 

We find poskim who rely on Maimonides’ ruling to prohibit women from assuming leadership positions, and those who maintain that Maimonides’ ruling is irrelevant to positions that people attain via a democratic process, rather than via appointment by a king or by a Sanhedrin, or by inheritance, and irrelevant to positions where the appointee does not have the ultimate authority.  A synagogue president or board member answers to a congregational rabbi and to the synagogue membership, and, in some cases, even the synagogue rabbi does not have the ultimate authority in his congregation, but rather is answerable to a national organization, of which the synagogue is a member, by choice.  And, of course, he is answerable to the board, which might not renew his contract.

In addition to the claims that Maimonides’ ruling does not apply to appointments to public positions in our time, all discussions on the question of women in leadership positions present the view of the Tosafot as a dissenting view.  It is essential, therefore, to clarify the view of the Tosafot and its implications.

The arguments that are offered in the name of the Tosafot in opposition to Maimonides’ ruling include commonly known rationalizations of the fact that Deborah was a judge.  Bear in mind that Deborah was not just a “judge” like those others in the Book of Judges who functioned as rulers and military leaders – Targum Yonatan uses the word nagoda, i.e., ruler, in those cases.  Rather, she was, in addition to that, a real judge, as in court or a beit din, as we are told in Judges 4:5 that B’nei Yisrael came to her for mishpat, for judgment – Targum Yonatan uses the word dina, and the word dayna to translate verse 4:4, “she was judging Israel at that time.” 

Therefore, Deborah’s position, both as a judge and as a leader, would appear to be problematic in light of Maimonides’ ruling.  The explanations that are based on the Tosafot’s commentary (from several places in the Talmud) that are typically presented include the suggestions that Deborah was a judge in the sense that the people accepted her authority, or that Deborah was not really a judge, but taught the laws, or that Deborah was a judge by some kind of divine word, or because she was a prophet.  However, none of these explanations actually contradict Maimonides’ ruling, because they all function as qualifications to our initial understanding of Deborah’s position.  She wasn’t really like a male judge, after all, either because of how she functioned or because of how she was appointed.

It happens to be that these qualifications work as arguments for the case of public positions today, but if this is all we learn from the Tosafot, then we are missing some essential points.  The above qualifications are actually stated by the Tosafot from a perspective of acceptance of women in leadership roles.  It does not occur to them that there is a problem with women holding positions of s'rara; only, perhaps, with her holding a position as a judge.  That is why all of the explanations relate to Deborah’s position as a judge, i.e., a judicial figure, but not to her functioning as a military leader.  In fact, it becomes quite clear, when examining the Tosafot in five locations in the Talmud, that not only didn’t the Tosafot have a problem with women holding positions of s’rara; it didn’t even occur to them that anyone had such a problem. 

Rather, the Tosafot are trying to grapple with whether women are disqualified specifically from being a judge.  A mishna in Nidda (49b) states that “whoever is qualified to judge is qualified to be a witness”.  Now, it is known from midr’shei halakha that appear in several places in the Talmud (Sh’vuot 30a, et al.), that a woman is generally disqualified as a witness.   Using the deductive reasoning of “A implies B, therefore not-B implies not-A” (called the rule of “transposition”), it follows that since women are disqualified as witnesses, they must also be disqualified as judges.

In Nidda (50a at the incipit kol hakasher ladun kasher l’ha’id) the Tosafot raise the problem of the contradiction between the logical conclusion of that mishna and the fact that Deborah was a judge.  But they also raise another contradiction with that mishna.  In Bava Kama (15a) we learn, from scriptural exegesis, that men and women are equal before the law, and the Tosafot point out that, according to another midrash halakha, the verse refers to both the litigants and the judges, implying that women should also be permitted to be judges!  Not only does the case of Deborah have to be reconciled with the mishna in Nidda; what is learned in Bava Kama also needs to be reconciled with that mishna in Nidda.

The Tosafot suggest something remarkable, and yet, it is not what we most frequently see cited in their name in response to Maimonides’ ruling.  In Nidda (ad loc.), after presenting the above question, the Tosafot write v’yesh lomar, “it should be said that this is what it [the mishna] states: “any man that is qualified to judge is qualified to be a witness”, so that this statement in the mishna is referring only to men – the rule of transposition can therefore be applied only to men.  Women may be judges, even though they are disqualified as witnesses.  The Tosafot offer the same explanation of that mishna in two other places (Bava Kama 15a at the incipit asher tasim lifneihem and Gittin 88b at the incipit v’lo lifnei hedyotot).

As we know, the Tosafot frequently offer several solutions and opinions to reconcile contradictions.  The qualifications of Deborah’s judgeship that were mentioned above are offered as alternative suggestions to reconcile Deborah’s case, according to a view that equality before the law only refers to the litigants, but not to the judges.  (Tosafot Y’vamot 45b at the incipit mi lo tavla and Sh’vuot 29b at the incipit sh’vu’at ha-edut also suggest the qualifications of Deborah’s judgeship, in somewhat different scenarios.)

The Tosafot’s proposal that the mishna in Nidda does not disqualify women as judges implies that the Tosafot did not even consider it problematic to appoint women to leadership roles.  If they gave any weight to the source from the Sifrei that Maimonides apparently relies on, it would not be possible to suggest that the mishna permits women to be judges.  In fact, if they even considered the source from the Sifrei something worthy of a response, they would have cited it.  It does not enter into the discussion in any of the five citations above.  Given that it does not appear in either the Babylonian or the Jerusalem Talmud, they did not see a need to cite it where the question of women as judges, or Deborah as a judge, arises.

The fact that the source from the Sifrei does not appear in either Talmud is significant.  Portions of that very same paragraph from the Sifrei are cited in both Talmuds, in more locations than is reasonable to list here, to teach several points, but not the point that Maimonides deduces regarding women.  Had the gemara wanted to cite a midrash that would disqualify women in positions of leadership, or to question the role of women who were leaders, there are more than ample places that this could have been done.

It is anyone’s guess, then, as to why Maimonides chose to incorporate a halakha based on this midrash from the Sifrei into his corpus, even though Sages in the Talmudic discussions and the s’tama  (or the redactors of the Talmud) ignored it.  After all, there are many other midrashim in the midrash halakha that were not included in the Talmud, nor did they make it into the halakhic codes.  Likewise, we can’t know for certain why the Tosafot ignored this midrash, though this is more in accordance with usual halakhic methods.

What is of note, though, is that Maimonides’ codification of this midrash is quite compatible with the social order in Muslim Egypt of his time, while the Tosafot’s greater open-mindedness about possible roles for women is more in keeping with some of the positive changes in the role of the Jewish woman that occurred in Europe during the High Middle Ages, 1000 - 1300 C. E., as described by Professor Avraham Grossman (Pious and Rebellious: Jewish Women in Medieval Europe, 2004).  Note that the first generation of Tosafists, such as Rabbeinu Tam and Rashba”m, were active in the twelfth century.  These changes in the role of women are viewed as positive, particularly when measured against Muslim society.

With this background, let us return to the question: what is different about the synagogue setting that would cultivate a leaning towards Maimonides’ view rather than the Tosafot’s view?  Should one suggest that in the synagogue, being a holy place, one should make more of an effort to avoid licentious thoughts, then it should be pointed out that there should be less concern of such problems where there is trepidation before the Sh’khina.  And if one should suggest the commonly heard refrain kol k’vuda bat melekh p’nima (literally: “all the princess’s belongings should be led within,” Psalms 45:14, having nothing to do with modesty) to prevent women from appearing in public or taking public roles, we should point out that people are proud to see their daughters and wives appear in court as attorneys or judges, at academic conferences, or speak on their book tours, before strange audiences.  Should it not also be comfortable for them to hear those same women announce when mina is in front of their own caring and supportive communities?

May I dare suggest that restricting lay positions to men, whether in the synagogue or in Jewish communal organizations is a manner to retain a last stronghold of Maimonides’ vision of male hegemony, in a society where change challenges many traditional values, where religion has become a lifestyle choice rather than an obligation.  It is based on a false hope that conservatism is what will guard Judaism from these challenges, rather than engaging those challenges, the way Judaism had done for centuries in the past.

But is Maimonides’ vision of society what we really wish to strive for or preserve?  We all are witness to what befell those societies that are in the mold of Maimonides’ Muslim Egypt, polygamous (Hilkhot Ishut [Laws of Personal Status] 14:3) societies, in which women are veiled (Hilkhot Ishut 24:12) and are rarely permitted to venture outside of their homes (Hilkhot Ishut 13:11).  Are such societies what we wish to emulate?

Moshe rejected Joshua’s concern about Eldad and Meidad threatening authority.  He did not feel threatened at all, but rather said “would that all the Lord’s people were prophets, and that the Lord would put His spirit upon them!”  Would that all the Lord’s people – including women – assume leadership roles in our communities, and may our communities thus be able to meet the challenges of tomorrow!

Dr. Debby Koren is an independent scholar who is currently working on a book on responsa of the 16th -17th centuries in the post-expulsion Jewish Spanish and Portuguese communities.  She also lectures and teaches Talmud and halakha in informal adult settings.

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