Today is November 20, 2019 / /
By Rabbi Dov Linzer
I was pleased to read the teshuva by Rabbi Ysoscher Katz, shlita, on the issue of women leading selichot, a topic that I addressed in a teshuva last year. Rabbi Katz’s halakhic argument appears in the third and final section of his teshuva. The first section of his teshuva is devoted to laying out a methodological approach to halakhic rulings on this and similar issues, and the second section to a presentation of how the meaning of the relevant Talmudic text changed over time. Following Rabbi Katz’s order, I will first look at his methodological and historical arguments, and then turn to the halakhic argument itself.
Methodological Argument – What is a Posek’s Point of Departure?
In his opening section, Rabbi Katz states that given the many decision points of psak in terms of how to weigh and interpret various sources, a posek must determine his point of departure. Does he assume that something is permitted unless it can be proven otherwise, or the reverse? He goes on to state that if we find regular psak in a certain area to always be that something is permitted, then we need to start with that as our default position. Thus, he states, since in the recent generations when issues have arisen regarding women’s participation, we have regularly paskened that the matter at hand is permissible, when it comes to any issue relating to women’s participation, we should assume that something is permissible unless proven otherwise, and that the threshold for proof is a “very high one”:
ריבוי המקרים מייצר עמדה תקדימית מחייבת, שמחייבת כל פוסק הדן בנושא דומה לגשת לדיון בנקודת פתיחה מתירה ולהעמיד רף מאוד גבוה למבקש לטעון שבמקרה הנדון ההלכה אוסרת בניגוד לכל השאלות האחרות
Rabbi Katz makes it clear that this does not mean that everything is permitted, but rather that anyone coming to forbid, must prove his position with “incontrovertible proofs”:
אבל כשאנו דנים במקרה ספציפי אנו צריכים להתחיל בהנחה מתירה, עד שהאוסר יוכיח בראיות בלתי מופרכות שהדבר אכן אסור
Rabbi Katz does not give any supporting evidence to this methodological approach, and I find myself disagreeing with it both in general and in particular. To start with the particular application: to demonstrate that we have consistently ruled permissively regarding women’s issues, Rabbi Katz presents three examples – women learning Torah, a woman reading megillah for women, and a woman saying kaddish. While these are all good examples of cases where there exists a relative consensus amongst the poskim to rule inclusively (at least within the Modern Orthodox community), there are many more issues which remain highly debated and contentious – women reading megillah for men, women receiving aliyot, women’s prayer groups with birkat ha’torah, and more. There is no established precedent regarding how women’s issues in general have been ruled upon. Second, I don’t understand how a psak in the question of a woman reading the megillah creates precedent or sheds light on the technical issues involved in another psak, such as aliyot for women. Perhaps the point is that we should be skeptical of the assumption that just because we don’t have the practice for women to do something does not mean that it is forbidden, and that we should approach every issue with a clean slate. I could not agree more, but this does not create the demand for the “high bar” and “incontrovertible proof” to which Rabbi Katz is referring.
Turning to the more general point, in my experience, poskim do not begin with saying: I am assuming that something is permitted until it can be incontrovertibly proven otherwise. This is a peculiar structural argument, taken from the world of monetary disputes – המוציא מחבירו עליו הראייה – that the one who comes to extract money from another person has the burden of proof. Now, when a certain practice has already been well-established, some might treat it as the default and status quo position, and argue that those who would challenge the practice would have to prove that it is incorrect. But even here, some reasonable argument has to be made to defend the current practice, and outside of such cases, poskim do not state that they need not prove or argue their case or that the burden of proof is on the other side.
It is without a doubt that poskim will often start with an intuition of what they think the halakha should be, or with a particular worldview or orientation to the issue at hand. In addition, poskim will often explicitly or implicitly make it clear that they need to work to come up with a heter because of what is at stake. So, for example, Rabbeinu Tam famously wrote נראה בעיני היתר גמור ומצוה מן המובחר לתת מחיה לבני ברית, “it is a mitzvah to make sure that a Jew can earn a living” (Mordechai, Bava Metzia 388), and this compelled him to find a way to permit a certain practice. More relevant to us is a teshuva of Rav Moshe Feinstein, who rules that although it would seem that a ger cannot be a Rosh Yeshiva because of a concern about s’rarah, taking positions of authority, nevertheless, the mitzvah of loving the ger compels the posek to limit the scope of s’rarah as much as possible (Iggrot Moshe, YD 4:26).
I would fully understand an argument – one that Rabbi Katz alludes to later on – that the issues around human dignity and membership in the community should compel a posek to find a heter in these matters wherever possible. Considerations such as these can legitimately push a posek in a certain direction, and can even give added weight to an argument and make us more receptive to forced or questionable readings. But they do not absolve the posek of the need to make a cogent argument, nor allow him or her to put the burden of proof on the other side.
In terms of the role of values and other religious mandates, it should be noted that the amount of latitude that these considerations give a posek vary from case to case. Issues of established psak in the community – where to rule stringently would be to claim that the entire community is sinning – weigh heavily. Issues of agunah weigh heavily. Issues of minor financial loss have much less weight. There is also the question of the weight of the violation that is at stake on the other side. Torah matters weigh more heavily than rabbinic, and so on. In the case at hand, there is a complex of issues at stake. On the one hand, almost all issues that relate to synagogue matters are rabbinic and not Biblical in nature. Added to that is the fact that for some communities, these matters are deep concerns of human dignity and membership in the community. On the other hand, a permissive ruling changes current practices and norms, and for many, touches on identity and boundary issues. A particular posek can state that he or she is compelled by a religious mandate to maximize inclusion, and that this drives him or her in all areas of psak even when it entails some changes in the current communal practice. But this is not the same as saying that every psak in this matter is right until proven wrong.
Establishing the Original Meaning of Texts
In this teshuva, as well as in his teshuva on women’s aliyot, Rabbi Katz puts forth his readings and analyses of texts central to his halakhic arguments without providing sufficient evidence for his readings. In the matter at hand, Rabbi Katz states that it is obvious that the Gemara which describes the power of the recitation of the 13 Divine Attributes gives no weight to a communal recitation, or to the requirement for a שליח ציבור. He quotes a number of Rishonim who assert this point, but this alone does not make this reading objectively correct. An even greater number of Rishonim think that the Gemara is referring specifically to a communal recitation, and the position of these Rishonim should carry at least as much weight in establishing the original meaning of the text. To my mind, the pshat of the text is the reading that Rabbi Katz rejects. The Gemara speaks about God teaching Moshe a סדר תפילה, an order of prayer – indicating a liturgical recitation; of “Israel” – a unified entity, not individuals, reciting this order; and that God, as it were, wrapped Godself in a tallit like a shaliach tzibbur. All of these parts of the description indicate that the Gemara is referring to a communal liturgical, recitation with a prayer leader. Rabbi Katz understands the phrase “this order” to refer only to the wearing of a tallit, but the phrase סדר תפילה certain seems to indicate the text of the prayer. In fact, the use of this phrase might be intended to suggest a parallel to Shmoneh Esrei, which was “ordered” – הסדיר – by Shimon HaPakuli, in the proper order, על הסדר (Berakhot 28b). If it refers to more than the text alone, it would most likely refer to something that is central to the halakhic definition and structure of prayer, namely, a minyan and שליח ציבור. The assertion that the central concern of this text is the use of a tallit seems quite out of place.
The Geonim and Rishonim who read this text to require a tzibbur for the recitation are making a well-founded argument and I do not understand how Rabbi Katz can assert in definitive terms that this is not the original meaning of the text. Rabbi Katz does cite a number of teshuvot of various Rishonim and Achronim whom, he argues, support his understanding of the Gemara (although I disagree with some of his readings of these teshuvot), but he does not demonstrate why these teshuvot are right and the others are wrong. I would have no problem with Rabbi Katz stating that his reading appears to him to be the original intent of the text, but unless he makes a persuasive argument, he cannot ask us to treat his reading as correct and any other reading as a deviation from the original meaning.
This methodological issue came up in an earlier teshuva of Rabbi Katz regarding women reading from the Torah. In that teshuva, Rabbi Katz asserted that the Gemara did not mean to forbid women to read from the Torah but only to advise against this practice; however, he provides no evidence for this reading. Similarly, he gives us a novel interpretation of a Tosefta; to wit, that the concern of having a woman read from the Torah was that it would have necessitated calling her to come in from outside, since at that time it would be rare for women to attend synagogue services. In fact, the evidence from multiple sources – inscriptions, and contemporaneous literature, both Christian and Jewish – demonstrates convincingly that women did attend the synagogue in the Talmudic times and paid attention to the reading of the Torah and the prayer service. Here is how one scholar summarizes the evidence: “[C]onsidering the not inconsequential evidence cited above that they (i.e., women) regularly attended synagogues, there can be no doubt that their presence in this setting was a recognized and widespread phenomenon throughout Late Antiquity.”
A posek is entitled to put forward his understanding of a Gemara or central text, but for his reading to carry weight in a halakhic argument it is necessary for him to adduce evidence and make a persuasive argument that such a reading is indeed correct.
The Halakhic Argument
As far as the substance of Rabbi Katz’s argument, I have already spelled out my position at length in a teshuva that I wrote on this matter last year, where I ruled that a woman may not lead the recitation of the 13 Divine Attributes for a minyan. At the time, I recognized that it would be possible to rule leniently if one were prepared to treat the group gathered for selichot as a collection of individuals rather than as a minyan, and to recite the 13 Divine Attributes as if one were reciting them in private (although I questioned if the very presence of a minyan prevented such redefinition by the participants). Doing this would require one to drop the recitations of the kaddish that accompany selichot and to accept that one was forfeiting the value of reciting selichot as communal prayer.
I would – and did – disagree with such a psak, as I do not believe that we can give up tfillat ha’tzibbur and the weight that is assigned to it in the Gemara, in exchange for a tfillat yachid for the purpose of allowing women to lead the service. Although I share the imperative to maximize women’s leadership and participation in the synagogue, I do not think that the tradeoff in this case can be justified. I would understand someone who ruled otherwise and argued that for the sake of כבוד הבריות and full membership in the community we could either (a) rely on the Tur and those authorities who do not treat this as a communal prayer or devarim she’bikdusha at all or (b) decide that the gains of כבוד הבריות would outweigh the value of tfillah bi’tzibbur. But Rabbi Katz argues neither of these.
Rather, Rabbi Katz claims, that while the recitation with a minyan is a form of devarim she’bikdusha, when one chooses to recite selichot without a minyan, making it a tfillat yachid, very little is actually lost. He bases this on two arguments:
הרי, סוף כל סוף, כפי שראינו, הקריאה שעליה מדברת הגמרא היתה קריאה מקראית, לא קריאה תיאורגית. וכן הוא מעמדו של קריאה שהציעו הראשונים, השולחן ערוך והאחרונים. ניגון קריאתו שונה, אבל תפקודו התיאורגי אינו נחות כלל מקריאה ליטורגית
He argues that according to the Gemara, the recitation of the 13 Divine Attributes is not a liturgical reading, but rather a simple reading of pesukim. His point seems to be that if it is merely a reading of pesukim, there is nothing to be gained from a communal recitation. Rabbi Katz then states that according to the Rishonim and Shulkhan Arukh, the two recitations have the same metaphysical power despite the fact that the recitation of an individual is done in a different way than that of the tzibbur. But neither of these arguments seems correct. If the Rishonim and Shulkhan Arukh treat one recitation as a tfillah bi’tzibbur and one as a tfillat yachid, and hence require the individual to recite it in a different fashion than the tzibbur, then halakhically the tefillah bi’tzibbur has more weight. Moreover, these poskim assume that the Gemara’s case is one of a recitation of a tzibbur and it is for this reason that they give the recitation the status of devarim she’bikdusha. If that is the case, then according to the Gemara this is a liturgical reading and a tefillah bi’tzibbur and, by necessity, has more weight than the recitation of an individual.
וכן כתב להדיא הגאון ר’ עובדיה יוסף (יחוה דעת חלק א, סי’ מז): “שעל כל פנים גם היחיד שקוראם בטעמים, ניכרת מחשבתו שעיקר מטרתו להזכיר מדות הרחמים דרך תפלה ובקשה”. היינו, שגם אמירת המידות כ”קורא בתורה” היא אמירה תיאורגית שבכוחה להפוך מידת הדין למידת הרחמים
But this ruling is not relevant to the matter at hand. Rav Ovadyah is merely stating that if a verse is recited as a tefillah, the rule of not breaking it in half does not apply. Similarly, Rav Ovadyah rules that when one is reading a verse quoted in the Gemara, she does not have to read the whole verse since this is not a standard reading of a Biblical verse (Yabia Omer, OH, 3:14.6). The issue of when one who is reading a Biblical verse may or may not end his reading mid-verse bears no relevance to the question of the relative weight between a communal and private recitation of the 13 Divine Attributes.
Another argument that Rabbi Katz advances is that there is no metaphysical advantage to halakhic tfillat ha’tzibbur over a prayer recited by an equally large gathering of people who do not constitute a minyan. I do not understand the basis for such an argument. There is no question that from a halakhic perspective, tfillat ha’tzibbur has a special status and is the preferable mode of prayer.
There are other points that I take issue with as well. Specifically Rabbi Katz’s questioning of the role of the kaddish di’rabanan and the chatzi kaddish before selichot, and his assertion that while a number of poskim have noted that the structure of the selichot – Ashrei, Chatzi Kaddish, Selichot, Shema Koleinu (which comes at the end of the request section of Shmoneh Esrei as well), Tachanun and Kaddish Titkabel – parallels that of classic tefillah bi’tzibbur, this is nevertheless no indication that selichot have some degree of a tefillah status. I will leave the discussion of these issues for a later time.
Rabbi Katz’s recent teshuvot have opened up important and necessary conversations in our community around the critical issue of expanding women’s ritual participation. I thank Rabbi Katz for his welcoming of open debate around these topics. It is through such honest and respectful debate that Torah is greatened and glorified.
 For more on the role of established practice and textual justification, see “Rupture and Reconstruction:
The Transformation of Contemporary Orthodoxy,” Haym Soloveitchik, Tradition, Vol. 28, No. 4 (Summer 1994), pp. 65-67.
 Also relevant is the teshuva of Maseit Binyamin (no. 62), who critiques those who would forbid a blind person to receive an aliyah stating, עוד תמיהני על דברי האוסרין דהיאך החליטו הדין לפרוק עול מלכות שמים מעל האנשים, “I remain astounded regarding those who forbid – how have they decisively concluded the law [with the effect] of casting off the Heavenly yoke from people?” This statement has faint echoes of Rabbi Katz’s approach, seeming to suggest that the burden of proof is on the other side given the moral and religious weight of the issue. However, in the larger context this is a rhetorical point and not a methodological one. The author does not start with this and does not claim that he need not prove his case since the burden of the proof is on the other side. In fact, the author lays out his methodology, and makes it clear that any halakhic position must be rigorously proven:
ומעכשיו אבא אל הענין בעצמו ואומר.כי כל הרוצה לפסוק הלכה ולהכריע היכא דאיכא פלוגתא דרבוותא זה לא יתכן כי אם באחד משלשה דרכים:
והנה הנדון שלפנינו בכל אלו הג’ דרכים הלכה כדברי המתירין…
Now I will deal with the heart of the matter itself, and I will say that whoever wants to give a halakhic ruling and to make a legal decision in a case where there is a debate between the great authorities, this cannot rightly be done, save for three ways:
Now in the matter in front of us, based on all three of these ways the rule is like those who permit…
In fact, even after he argues for his position on all three grounds, and after his expressing of shock on those who would definitively forbid the practice, he concludes his teshuva more modestly, not arguing that the practice is unquestionably acceptable, but rather that one should not object to those who have or adopt the practice of giving of an aliyah to a blind person.
 Rabbi Katz states that R”I Migash and Trumot HaDeshen give no weight to a communal recitation, but a close reading of R”I Migash shows that he is only stating that the Gemara does not forbid an individual to recite the 13 Divine Attributes, not that the recitation of an individual is equivalent to the recitation of the tzibbur. The same is certainly true of the Trumat HaDeshen, whose only concern is whether such a recitation is permitted or not, and who argues that it is permitted if the verses are read with cantillation, as this makes the recitation no worse than a simple reading of Biblical verses.
Rabbi Katz also states that Rav Ovadyah expresses doubt as to whether the Gemara requires a minyan for the recitation of the 13 Divine Attributes: גם הגאון רב עובדיה יוסף מגלה גישה ספקנית לגבי השדרוג ההלכתי שנעשה לאמירת שלוש עשרה מידות. But in the teshuvot he cites, Rav Ovadyah merely notes that there is a minority opinion that reads the Gemara to not require a minyan, as he would note any minority opinion, and he gives it the weight appropriate for a minority opinion and no more. When it comes to how he sees the matter in general, however, he writes that the qualitative weight and quantitative majority of poskim demand a minyan, and he expresses no sense of uncertainty as to the meaning of the Gemara or to the halakhic value of a communal recitation of selichot:
ומעתה בנ”ד לענין י”ג מדות נמי מקום יש בראש לומר שהואיל ולר’ יונה והטור יחיד אומרם ואין דינם ככל ד’ שבקדושה, להפסיק לאמירתם בפסד”ז או בק”ש וברכותיה. ואף על פי שבזה רוב מנין ורוב בנין חולקים וס”ל שדינם כד’ שבקדושה, הואיל ויש כאן ס”ס שלא לענות, שמא הלכה כמ”ד שיחיד אומרה, ושמא אעיקרא אין מפסיקין בק”ש… (Yabia Omer, Orah Hayim 5:7.2).
In fact, later in the same teshuva he states emphatically that the 13 Divine Attributes are a davar she’bikdusha and that any ruling contrary to this must be rejected:
אכן מ”ש הגרש”ק שאין היחיד מחוייב בכלל לענות י”ג מדות עם הצבור, אינו מחוור לפע”ד, אלא כל שהוא נמצא במקומות שמותר להפסיק בהם צריך לעמוד ולומר עמהם י”ג מדות כיון שהם ד’ שבקדושה. (ibid., section 4).
 Lee I. Levine, The Ancient Synagogue, p. 502. For more on this topic, see Gilad Lerrer, “On the Question of the Gender Arrangement in the Synagogues in the Time of the Second Temple, Mishnah and Talmud” (Hebrew), in Hayo Hayah 7 (5770), pp. 27-57.