May Women Run for Public Office?

At a discussion with his students at the Jerusalem Yeshivat Ateret Yerushalayim, R. Shelomo Aviner ruled recently that on the grounds of “modesty” women may not run in Israeli elections to the Knesset.

His position was challenged by Rabbi Yuval Cherlow: “I don’t understand where this perspective came from, that a woman serving in a public office is not modest.” [Jerusalem Post, 2012-Oct-24]

Rabbi Aviner claims that:

  1. Women should be private and not public figures, based upon Psalms 45:14, the entire glory of the King’s daughter is in her interiority.”
  2. Politics, being public, is a male enterprise.
  3. Serving in the Knesset is immodest, and therefore a forbidden activity for women.
  4. There is basis for this ruling is found in the writings and thought of Rav Avraham Isaac Kook.
  5. R. Aviner grudgingly allows women to vote for people to serve in the government. Since other, non-religious women are voting and having their vote count in the allocation of political power, the Nationalist Religious camp must, under current circumstances, allow its women to vote if its ideological voice is to be heard.
  6. There is social mingling of the sexes at political events, which is forbidden according to R. Aviner‘s version of Jewish law.
  7. The case of Deborah the “judge” is to his view not a precedent for female leadership. Hers was a special, emergency case, as there was no one else to do the job of leadership.

In Yeshiva settings, the head of the yeshiva is also the heart, mind, conscience, and mouth of the yeshiva. His truth is hierarchically superior and challenges the official ideological and theological line leading to expulsion and a bad reputation as a dissident, troublemaker, and an unworthy person for the community of the elect. One is supposed to learn Torah in order to receive the recovery of truth as explained by the Yeshiva head, and Torah learning may not be undertaken in order to engage in the discovery of Torah truth as that truth is encoded in the Torah book, philologically parsed. Rabbi Aviner is both religious and Zionist, but his world view is Harda”l, as he finds ultimate Jewish normative propriety in the rulings of rabbis and not in the Judaism that is actually encoded in the canonical Jewish sacred library.

Jews who are both modern and Orthodox would alternatively contend:

  1. First, the Psalms passage, which maintains that the King’s daughter, the Jewish female, is to be a private and not a public person, has been expanded by culture and not by Torah law. The passage might also be read to forbid women to leave the house or to earn a living by being a salaried professional. How else could a precious Jewish daughter earn a livelihood that feeds herself, her children, her unemployed ever learning husband, cover the rent, and religious day-long education. Second, Jewish laws are not derived from non-Pentateuchal Biblical books. How R. Aviner knows/intuits the actual normative valence implied by his spin of the Psalms passage is not explained; the claim, that women may not run for office because office holding is immodest if the office holder is a woman, is boldly asserted and Scripture is cited as if R. Aviner knows God’s secret intent, which just happens to be the ethos of parochial Orthodoxy’s street culture. As long as the Written and Oral Torah do not explicitly forbid an act, that act is implicitly permitted. [R. Joseph Karo, Bet Yosef to Yoreh Deah 1:1, citing mEduyyot 2:2. R. Shabbatei Cohen’s opposing view, that what was done is what is to be done, reflects and anticipates R. Aviner’s alternative approach.] In order to forbid an otherwise permitted act, a rabbi must persuade his community on the basis of a reasoned reading of the Oral Torah canon. To appeal to the rulings of great rabbis of Yom Kippurs past will not do, because the world of modernity carries a different mindset than the social world of yesteryear; to affirm Daas Torah is invalid, because the Daas of Torah resides in the public Torah book, and not in the individual intuition of any rabbi, however great he may be; and to invoke Tradition/Masorah is illegitimate, because a real and authentic tradition that carries with it the soul of Sinai may be found—at least according to Maimonides’ introduction to his Code—in the Talmud of Babylon, and not in the pronouncements of latter day saintly would be and wannabe Masorites.
  2. According to R. Aviner, politics, being public, is a male enterprise. Deuteronomy 17:15 rules that Israel is commanded to appoint a king over its sovereign polity. bYebamot 45b unpackages the passage and rules that all power appointments [mesimot] are made by men. It is indeed a plausible, but not necessary, reading of this passage that women may neither hold public office nor vote for male holders of public office. Sifre Deuteronomy 157:15 maintains that a man may lead and a woman does not lead. Note well that the syntax of this passage is descriptive and not prescriptive. It is true however, that Midrash Tannaim 17 glossed this passage and ruled that women may not serve as leaders. At stake in this conversation is whether God’s covenant with Israel requires obeying God’s commands alone or preserving the sociology of yesteryear, as well. Recall that R. Aviner is prepared to derive Jewish law by attaching his ideas to canonical comments; since to be binding Midreshei Halakhah require a sitting Sanhedrin for approval, R. Aviner is constrained to adjust the parameters of Jewish normativity in order to preserve what he takes to be traditional Jewish sociology. Pisqei Uzziel 55 reads the norm as literally as forbidding the appointment of a king. God’s will is not more and not less the sacred recorded law. Not forbidden by the Oral Torah’s sacred statute is the acclamation or election of the king. Since the normative valence of a statute is limited by the semantic field of its words, Rabbi Uzziel’s reading is also plausible. Recall that R. Uzziel disagrees with his older, more established colleague, R. Kook. At stake in their disagreement is how to accommodate social change to halakhic statute. Rav Kook believed that social change should be avoided, and read the restrictions expansively; R. Uzziel contends that we take God at God’s literal word as recorded in the canon, so whatever is not forbidden by statute may, if the reality on the ground so requires, be permitted in practice.
  3. R. Aviner did not reference the rule regarding women not holding the power of office; he instead raised the issue of modesty. R. Aviner’s rulings parallel R. Kook’s faithfully and accurately. But he marginalizes women by viewing them as bundles of sexual energy that tempt men to sin. How does Rabbi Aviner know that women serving in public [a] violates the canons of modesty and [b] is indeed forbidden by Jewish law? For his version of Orthodoxy, the opinions of contemporary great rabbis carry covenantal valence because these rabbis claimed this right, power, and authority because these rabbis acted as if the Oral Torah affords them this authority. And they get rather testy when their divinely inspired intuition is called into question, when they are held to peer review by those whom they do not regard as peers, and regard all criticism as bashing by people, who cannot understand because great rabbis alone understand. According to authentic Oral Torah Judaism, the ethos of faith is co-terminous with the ethic of the statutory norm. There are no hidden or secret heavenly laws known only to R. Aviner, no axiological axioms or meta-halakhic concepts [a Greek rather than Jewish idea] that are imputed to Judaism but not recorded and encoded in Judaism’s sacred library, and there are no values or binding norms that carry valence because post-Talmudic Rabbi X said so. For an act to be determined to be Jewishly immodest, it is, with all respect to Rabbi Shabbatei Cohen, insufficient to claim “we never saw the act being done.” We are required to show that there is indeed a rabbinic law that creates the legal mandate. Rabbi Aviner fails to cite the Talmudic norm that without question disallows women running for office or voting; invoking the magic words of Masorah or Minhag is Jewishly inappropriate. The Masorah that is legally binding ends with the Talmud, which is the benchmark by which post-Talmudic Minhag and Masorah are evaluated. By assuming, but not demonstrating, that it is a concern for “modesty” that the Talmud is taken to outlaw for all time women leadership, R. Aviner is constrained to dismiss the Scriptural evidence of Deborah, he makes out of “modesty” a catch-all category that imputes to God, the Lawgiver, all the anthropomorphic qualities of a man who sees women as gendered objects of sexual energy, a perspective that this writer regards as immodest in and of the extreme.
  4. Rabbi Kook was a very great man and a wonderful rabbi; in Israel he is called “the Rabbi,” or ha-Rav. And he is by all accounts worthy of this title. And I make it no secret that I learn from R. Aviner, who continues this revered Tradition. But R. Kook dressed the old world dress and it is that world and its time conditioned ethos that provided R. Kook with his normative benchmarks, over, above, and even in the face of Torah. Specifically, R. Kook would disapprove of female suffrage and the use of chalk in education. However, God’s will is revealed in the Torah of Sinai and not the folkways of yesteryear. As stated above, it is a human bias and not a divine mandate to deny women the right to vote or to use chalk in teaching. Similarly, R. Adin Steinsalz was criticized for not studying the Talmud with Tsurat ha-Daf, the [culturally] “traditional” format that is by convention to be used. Convention may not be confused with covenant; chalk is by no means forbidden by Talmudic law so its non-use is unworthy of the “tradition” designation, and by opposing women voting and running for office on the grounds of “modesty,” we have created an innovative new Orthodoxy. It is a religion where halakhah is not the Law of the Jewish people; it is the trove that is ritually reviewed by the masses and is normatively defined by great rabbis of socially conservative inclination.
  5. By grudgingly allowing Orthodox women to vote and to serve in the Knesset, R. Aviner grants what might be termed a “dispensation,” as he is, after blow-back, dispensing what he suggested is a law of modesty. Since non-Orthodox women are both voting and holding office as politically active persons, the modesty “law” may be suspended [See Maimonides, Mamrim 2:4] because, by forbidding women to vote and hold office, the Orthodox diminish their hold on the perks of power. It should be recalled that “dispensation”, i.e., the right of an authority person to suspend a law, is found in Catholic law but not in the Law of the Written and Oral Torah.

    Jewish law forbids [Maimonides, Laws of Forbidden Intercourse, 21] lustful inter-gender physical contract by Torah law, lustful non-contract gestures, by rabbinic law, and the clandestine unions regardless and independent of other behavior between a man with either one or two women who are not his wife/wives. There were occasions when due to anticipated loose behavior, the rabbis segregated the sexes. It is Jewish convention and not conviction that requires gender segregation. Tosafot to bShabbat 125b, s.v. ha-kol modim, sees the gender partition as “conventional modesty” and not as an undocumented allegedly Biblical mandate. The segregation of the sexes reflects the Hareidi sexual ethic; and this community has a right to its style and its folkways. R. Aviner grudgingly allows women to vote for people to serve in the government. Since other women are voting, the Nationalist Religious camp must allow its women to vote if its voice is to be heard.

  6. But the moment that this Orthodoxy claims that its folkways and its style are in fact the will of God and the Torah of all Israel, with declaration but without demonstration, then this Judaism’s very Orthodoxy may be held to review, revision, and if needed, rejection.
  7. The Biblical idiom shofeta et Yisrael, [Judges 4:4. Psalms 82:8 may reflect this idiom, to be explained below, as well] describing Deborah’s judging Israel, may be a synonym for ruling Israel as a king. The Semitic root is also found in Akkadian, as shapitum, a Northwest Akkadian epithet for “king.” How R. Aviner magically knows that Deborah is not a precedent for leadership [or women singing in the presence of men, see Judges 5:1 and R. Yehiel Weinberg, Seridei Esh 3:8] is also unstated. As an authority person, R. Aviner assumes the legal power to privilege precedent intuitively. Canonical textual evidence is superseded by the inspired rabbinic intuition of the great rabbi.

 

At http://shlomoaviner.net/index.php?title=%D7%A2%D7%9E%D7%95%D7%93%D7%A8%D7%90%D7% [last checked, it is a dead link], Rabbi Aviner clarifies his position. It is argued by R. Aviner’s spokesman that:

  1. A reporter went and found the talk on our website, listened to it and misunderstood it and created news. Incredibly immoral. He should have called Rav Aviner and asked him about it. Rav Aviner is probably the most accessible Rabbi in the world. His number is everywhere.
  2. He began the talk by quoting Rav Kook that women should not in involved in politics since it is immodest. Rav Kook‘s article is in Maamrei Ha-Reiyah.
  3. Even Rav Kook never said it was forbidden but rather a guideline.
  4. Rav Aviner said that the current reality is that women are in politics and many lists save a spot for women, so we should vote and support the women who will bring the greatest blessing to our Nation.
  5. People see everything as black and white. Rav Aviner often points out the grays in the world, the ideal and then how to deal with the reality.

On one hand, due diligence would have required clarifying R. Aviner’s position. But the claim that women are to be private people and how anyone can say that women’s running for office– or voting– is immodest– is a legitimate issue for discussion. Do rabbis have a right to define positively and apodictically what God really asks of Israel without discussing the actual meaning of the sacred text of the canon. And no, Kitzur Shulhan Aruch presents an opinion and not “the” law. Since Rabbi Aviner and other great rabbis forbid what the Oral Law requires, i.e. women serving in defensive wars of Israel [bHullin 44b], the opinion is subject to review.

By choosing to opt for “traditional culture” when the Torah need not be read the way Jewish culture, by dint of social inertia reads the Torah library, R. Aviner and Haredi/Harda”l rabbis assume a power that is not, at least according to Maimonides, possessed by post-Talmudic rabbis, which is the power to define the will of God with the rhetoric of midrash halakhah and divinely inspired intuition. According to official religion Orthodox Judaism, the Torah and its divinely Authored benchmarks are not given to change but are engraved forever, never to be effaced. The Torah was given to every tribe and an authenticating master copy was placed in the sacred ark, to insure that Israel is ruled by God’s accessible published word law and not by a subjective human whim, by a public law and not by a secret society of charismatic leaders, and by an exoteric revelation and not any esoteric mystical intuition. Real Torah empowers the judges who judge the judged to themselves be judged by those whom they judge, and woe to the judges who are found to be in need of judgment.

Sucking the Life out of God’s Law: A response to a blog post, “Metzitzah and the Halachic Process”

The author of this thoughtful, candid, and intelligent paper, “Metzitzah and the Halachic Process” by Rabbi Yerachmiel Seplowitz [posted at Cross-Currents, October 19th, 2012], reflects the world view of a Haredi rabbi with an open mind, a yeshiva trained, sincerely committed rabbi with an eye and ear trained upon the reality of the contemporary Jewish street, both Orthodox and not. He thinks for himself with a Torah inspired passion.

Nevertheless, the contours of his thought are not congruent with the mind, method, and mission that animates the modern Orthodox position:

The Metzitzah controversy [does Jewish law require or merely authorize using oral flesh to flesh suction to clean the circumcision wound – Editor] is nothing new.

In the 1800’s, in Germany, the elements of Reform sought to ban circumcision entirely, attacking the “barbaric” practice of Metzitzah b’peh (MBP), where a Mohel would suck the blood away from the circumcision site.

A little earlier history is in order. The Talmud requires that after a Bris is performed, the blood must be suctioned away from the wound. The reason given is for the safety of the baby. Presumably, the purpose of Metzitzah is to cleanse the wound area of any germs and prevent infection.

A trained mohel, R. Seplowitz is aware of the problem. Is this suction an instrumental requirement, which is done for the well-being of the neonate, or is it a time honored and therefore obligatory tradition that must be maintained? Indeed, Rabbi Samuel Kamenetzky, whose views will be defended by Rabbi Seplowitz because he is a great man, or godol, a leading ultra- Orthodox or Haredi rabbi, in “Rav Shmuel Kamenetsky Statement On Metzitzah B’Peh at the Matzav Network, April 1, 2012 8:22 AM, he argues that…

The practice [oral flesh to flesh suction at the circumcision wound site] is indeed time honored and is followed by the majority of the Orthodox Jewish community today around the world, as it has been for thousands of years.”

Rabbi Kamenetzky gives three arguments for maintaining the oral suction practice as a religious rite:

  1. it is honored or sanctified by time usage
  2. it is followed/practiced by the majority of Orthodox Jews today
  3. the practice, being old, is implicitly proper.

What R. Kamenetzky does not say is enlightening. He does not say the act/rite is a commandment; he only affirms the rite/act enjoys the inertia of incumbency. In official religion Orthodoxy, only commandments – not folkways – command compliance and only commandments confer sanctity. The practice may be observed – out of pressure – by ultra-Orthodox Jews today. But Orthodox Judaism is not what Jews just happen to do; it is about what Jews ought to do. We can and do get Judaism wrong. See Leviticus 4:13. Just forty days after getting a Torah that outlawed idols, ancient Israel was praying to and dancing around a golden calf. Doing an act/rite for a long time does not make the right rite; it makes the rite into a habit.

To my knowledge, it has not been proven that the practice leads to contraction of illness. The halacha is extremely sensitive to health concerns, and it is wrong to insinuate that Jews, who are very particular in the care of their children, would be engaging for thousands of years in a practice that is inherently dangerous.”

The learned rabbi is not a learned medical doctor. Indeed, he heads the venerable Philadelphia Yeshiva, that according to its graduates, does not endorse secular, academic education because it takes away time from Torah and because the probing academic environment conditions its students to critical, or judgment making thinking, which is subversive to faith in God and in the infallibility of the gedolim/great rabbis. R. Kamenetzky’s claim is not based upon empirical evidence; it is based on a particular view of Masoreh/Tradition. Since Jews are doing an act, since our kind a.k.a. the right [some would say very right] kind of Jews are doing the act, the act/rite cannot be wrong. Note well that for R. Kamenetzky, the locus of religious right is found in the habits of the community and not in the right reading of the revealed canon.

We have a sacred responsibility to protect our children from danger and that responsibility is paramount. However, in the absence of an inherent danger in performing mitzvos or following our traditions, we must follow them. In my view, there has been no demonstration of an inherent danger associated with metzitzah b’peh.”

This exquisite statement requires unpackaging. R. Kamenestky first affirms that his version of Orthodoxy protects children from danger. However, in the article “Ultra-Orthodox Shun Their Own for Reporting Child Sexual Abuse” [by Sharon Otterman and Ray Rivera, New York Times, May 9, 2012], it is reported that reporting sexual abuse of children to the secular authorities seems to more objectionable than the abuse itself. Unstated and unaddressed is HM 425:1, gloss of Rabbi Moses Isserles, who requires telling authorities about sexual abuse. It is a fact of post-Emancipation Jewish life; when Jewish and secular law converge with common sense, we do well to obey that law. Jewry is led by law and not rabbis with agenda.

The statement, “I don’t think there is a response to them,” referred specifically to those who allegedly said that it would be invalid to use a tube where there are demonstrable health issues present regarding either the mohel or the child.

If the oral suction is a commandment clear and simple, we have to obey God and the conversation ends. But R. Kamenetzky’s claim is that we have to preserve our “traditions.” If by “tradition” he means the law of the Talmud, he would be right. But if he means that we do what our ancestors did, which included building a golden calf, and the prophet Jeremiah did not approve, as per Lamentations 5:7, R. Kamenetzky would, heaven forfend, sound more Reconstructionist than Orthodox.

R. Kamenetzky contends that the danger to the neonate that oral suction presents has not to his satisfaction been demonstrated. I wonder if he would ever opt for science over the “old time religion” that is “blowing in the wind,” that is “good enough for him.”

Jews have made tremendous sacrifices over the millennia to properly observe our religious obligations and traditions. It would be a shame to return to the days when parents and circumcisers feared performing the hallowed bris, which enters every Jewish male into a covenant with G-d.”

We are obliged to observe our obligations, a.k.a. commandments. God did not command us to keep traditions that are folkways. The modern Orthodox R. Joseph Soloveitchik both rightly and precisely did not recite the Hallel blessing on the new moon because the recital is a custom/tradition and not a law. Commandments and not customs generate commandment blessings according to documentary official religion Orthodoxy. It seems to me that when there is a conflict between a folkway as opposed to a legal tradition and medical science calling an act a danger, medicine wins according to Torah as opposed to Reconstructionist law. See Deuteronomy 4:15 and bBerachot 32b.

We now turn to R. Seplowitz’s position:

It is easy to understand the claim that using the Mohel’s mouth to clean the wound is counterproductive. Some children were becoming ill in the 1800’s and Metzitzah was being blamed. Due to the controversy over Metzitzah b’Peh, many of the Sages of that time permitted the use of a tube to suction the blood.

This innovation was controversial, but many of the greatest authorities of that time and more recent times accepted it.

The Chofetz Chaim quotes the opinion of the Yad Eliezer, who permitted blood to be pressed out of the wound with an absorbent cloth, such as a gauze pad. (Biur Halacha 331:1) This opinion has also been attributed to the Chasam Sofer. The Chazon Ish opposed that practice, preferring the use of a tube, which he considered to be the Halachic equivalent of MBP. (Told to me by Rav Eliyahu Glucksman, ztz”l, Dayan of K’hal Adas Yeshurun (Breuer’s), a student of the Chazon Ish, whose son was circumcised on the Chazon Ish’s lap, with the Mohel using a tube.) Rav Moshe Feinstein considered the tube acceptable. My colleagues and I have performed Brisses, using a Metzitzah tube, in the presence of many contemporary Halachic authorities, with their acceptance, and sometimes encouragement. The Rabbinical Council of America has encouraged its members to follow the rulings of those authorities who permit the use of the tube.

Over the years, my use of a tube has occasionally put me at odds with parents who had requested my services. When they have insisted upon actual MBP with direct oral suction, I have suggested that the father do it. Sometimes that has happened, and sometimes they have opted to use a different Mohel.”

However, such cases represent the exception, rather than the rule. Most of my Bris clientele are Modern Orthodox or non-orthodox. Both of those groups are very happy to utilize the services of a Mohel who uses sterile instruments and gloves, and who doesn’t do MBP. As well, most ‘Yeshiva’ families who ask me to be their child’s Mohel accept my policy of doing Metzitzah with a tube.”

R. Seplowitz’s position in practice contrasts with R. Kamenetzky’s and comports well with modern Orthodox sensibilities. He cites the many authorities who allow and endorse changes in usage. Furthermore, these authorities do not see “tradition” in the same way that R. Kamenetzky does.

My use of a sterile tube is not a Halachic compromise. It is the tradition that I have received from my teachers, and it is acceptable to the Poskim — Halachic authorities to whom I turn for guidance. So for me, it is a non-issue. The use of the tube is 100% acceptable.”

This message seems to contradict R. Kamenetzky, who affirms ancient practice, appeals to “tradition,” and who makes no mention of the great sages who do not require flesh to flesh oral suction. However, R. Seplowitz is not arriving at a position because of his own research; he has a tradition from gedolim that what he does is proper. It is not the Tradition of text, it is the opinion of revered men that is central to his Judaism. Note well that R. Seplowitz does not explain the reasoning of the great men; it is their person, their standing, their reputation and their charisma that is authority laden. R. Seplowitz adopts the modernist view because there are ultra-Orthodox great rabbis who allow him that option; were they not to allow the option, R. R. Seplowitz would not and could not take the position that he does. He is not prepared to say that the ultra-Orthodox position is wrong.

R. Seplowitz’s rhetorical questions are indeed in order:

So why have I not joined the call for the abolition of Metzitzah b’peh? Why do I not congratulate the New York City Health Department for getting involved in Bris Milah? Why have I not contacted the non-Jewish and non-orthodox press to express my opposition to MBP? Why do I applaud the RCA and Agudath Israel in their opposition to the actions of the NYC Health department?

The reason is simple. Major Poskim support Metzitzah b’peh, and that reality is not going away.”

“Major Poskim” – ultra-Orthodox decisors all – are the source of Torah authority and they alone determine what the canon means and the applied parameters of pious propriety. If there is a disagreement among the “major poskim,” as there is here in the case of oral suction, then a Jew has a right to pick his godol, and follow whom he/she chooses. Absent from this discussion is what the norms to be applied actually say and what those norms really require. Being a “major decisor” makes one’s opinion by definition a valid and viable option. He writes:

Consider the following:

  • Much has been written about MBP and herpes. Some medical experts, such as Dr. Daniel Berman, writing in the journal Dialogue, have disputed the findings, and claim that the studies have been inconclusive. (Full disclosure: I am not a doctor. I make no claim as to the accuracy of either side of this dispute.).”

Two issues need to be raised here. First, if R. Seplowitz lacks the expertise to express an opinion, then he may say nothing at all. If some doctors claim that oral suction presents a danger and others do not, then mYoma 8:5-7, that to reference R. Kamenetzky’s words, “halacha is extremely sensitive to health concerns and it is wrong to insinuate that Jews, who are very particular in the care of their children, would be engaging for thousands of years in a practice that is inherently dangerous,” applies. Health comes first and trumps traditions that are not really laws.

  • In 1989 a proclamation appeared in various Orthodox publications in support of MBP [metzitsa ba-peh, oral suction]. The proclamation was signed by many of the most respected authorities in the Yeshiva and Chassidic worlds. (Of course, the issue back then was HIV, not herpes. One can only speculate as to whether those authorities, many of whom are no longer living, would sign it today. I suspect that most of them would.”

Speculation aside, R. Seplowitz defers to great rabbis whose stature insures the validity of their views, which are not subject to critical review. There is zero conversation regarding hermeneutic, the cogency of the claim, or what the canonical documents actually mean. If Orthodox lay people are not experts, how do they now know how to respect experts whose expertise is beyond their ability to assess?

  • A few years ago, I attended a speech where a Mohel and Halachic authority who is well respected by the Yeshiva and Modern Orthodox communities stated that he had informed the NYC Health Department that if they ban MBP, he will give them the address and time when he is doing a Bris, ‘so you can come and arrest me.’”

Again, being respected by community’s lacking the expertise requisite to rendering a judgment is a matter of marketing and not halakhah.” The fact that one has a good reputation may mean that one has expertise and it may mean that the person presents her/himself adroitly in popular religion settings.

  • The Chassidic world, by and large, rejected the original introduction of the Metzitzah tube over a century ago. They still reject it today. Whether you or I agree with that opinion is irrelevant; that is their position.”

The Hassidic “world” claps and dances on the Sabbath and festivals. [bBetsa 30a] Being Hassidic does not make one Orthodox unless Orthodoxy stopped being about Law and covenant and more about folkway and franchise. Being Hassidic is being presented as ipso facto a legitimate source of authority. Their norms may not be challenged, their authority may not be questioned, their practices are not subject to review. Normally, I would not like civil authorities to intervene in religious matters in America, the land of the free and the land of the fee. But in this case, lives are at stake and trump the “Reconstructionist” view of Orthodox “tradition,” that Judaism is what Jews do and not what its sacred documents demand.

For R. Seplowitz,

A word about ‘changes’ in Jewish Law. Your average rabbi can’t just wake up one morning and decide to modify religious practice. Questions of this nature must be ruled upon by a Poseik – an expert in all facets of Talmud and Halachah. He must be a very learned person – recognized by his teachers and his contemporaries as qualified to rule on such complex matters. He must be able to insure that his ruling will be consistent with Halachic standards and values. He must carefully weigh every nuance against the backdrop of Jewish Tradition, going all the way back to Sinai. (Don’t try this at home, folks.’)”

In my view, R. Seplowitz is in error. I do not believe that “heresy” is the default position for mistaken theology, and I remain convinced of his honesty, sincerity, and integrity. I just disagree with his views profoundly:

  • Laws of the Talmud require a Sanhedrin to change. As long as the proposed change does not violate Talmudic law, the change is legitimate. And if the proposed change violates Jewish law, like dancing and clapping on holy days and forbidding the required conscription of men and women on holy days, the change is not legitimate.
  • The claim that a major poseq needs to authorize ‘changes’ is therefore not correct. All that the rabbi needs to do is demonstrate that no law is being violated, like women’s prayer groups that are neither minyanim or pretend to be minyanim. R. Seplowitz merely makes this claim; he does not demonstrate its rightness on the basis of the literary sacred canon. But for R. Seplowitz, the human canons who are gedolim are authorized to change Jewish law. No one I know has explained how Tosafot to bBetsa 30a, s.v. tenan is authorized to claim that the Talmudic restriction does not apply in his time. If I did not know better, it would seem that Tosafot seem to sound like a Conservative rabbi, who today tends not to be very “conservative.”
  • The claim that the changer of Jewish law “be recognized by his teachers and his contemporaries as qualified to rule on such complex matters,” is likewise unfounded. If granted the Yoreh Yoreh ordination, the ordaining rabbi is either vetting the rabbinic candidate to be competent or the ordaining rabbi is a liar. The ordained Orthodox rabbi should be trained to render reasoned and rational readings and rulings regarding Jewish law. As stated above, as long as the suggested ruling does not violate Oral Torah statute, the reading is valid. One could argue that the theoretically permissive is legally valid while being unwise.
  • Halakhic “standards” are recorded in the Talmud. Post-Talmudic standards now bind locally and not universally. I do not know what a halakhic value is if it is something other than a public, recorded Oral Torah legal norm. If I am told that drafting women in the Israeli army violates the halakhic value called tsenius, or “modesty,” then we are challenging the Oral Torah mandate that requires such a draft as immodest. After all, if the Oral Torah requires such conscription, just perhaps the Torah’s view of modesty and the religion of the Orthodox street’s version of modesty are incongruent.

Consider the following plea (R. Seplowitz):

It is well and good that many of us follow the rulings of those authorities who permit the use of the tube. But let us not forget that there are other Poskim who insist that only direct contact will suffice. It is easy for me to say that I have a policy not to do MBP. But do I have a right to tell someone who has a tradition from his teachers to only do MBP that he must follow the rulings of MY Poskim?”

According to Maimonides, “tradition” is passed from a vetted and vetting Great Sanhedrin and not from a teacher to a student. What makes the teacher right? Who checks the checker? For R. Seplowitz, the godol cannot be wrong. For Leviticus 4:13, according to God, everyone might be wrong; the benchmark is the text of the Talmud and not the ghosts of gedolim past.

According to R. Seplowitz, “there is a Halachic process. Poskim take into account the original sources of Laws and Customs. They also take into account the facts on the ground. These factors led many 19th Century Poskim to accept an innovation; similar factors have led many contemporary Poskim to the same conclusion.”

This is how Judaism appears on the Orthodox street. In our view, this is not process, it is not halakhah, and it is not really Orthodox. Process has procedures and this version of Judaism does not. Street culture religion is reified into rules and challenges to leadership are by definition disrespectful. It is not law because Jewish law in canonical version has rules regarding authority. There is no body recognized as “the poskim” who after the end of the Talmudic period have a right to make rules for all Israel. This is usurped power and not legislated power; these rabbis want to preserve traditional society and have to bend the law in order to successfully preside over traditional society. And by changing the way Jewish law is derived, from the local rabbis having the right to rule locally, to great rabbis ruling over communities not their own, permitting the forbidden – clapping and dancing on holy days, and forbidding the mandatory – universal conscription in the Jewish state, this Judaism’s claim to Orthodoxy can, upon reflection, be unorthodox indeed.