Category Archives: Halakha

Is Tzedaka (Charity) Destructive To Society?

In the first Halakha of Chapter 10 of Hilkhos מתנות עניים  (Gifts to the Poor), Rambam says:

חייבין אנו להזהר במצות צדקה יותר מכל מצות עשה, שהצדקה סימן לצדיק זרע אברהם אבינו שנאמר כי ידעתיו למען אשר יצוה את בניו לעשות צדקה…

 We are obligated to be cautious (להזהר) in the commandment of Tzedaka more than any other positive commandment for Tzedaka is a sign for the righteous that [they are] are from the seed of Abraham our father.

This statement is quite amazing for several reasons; but before we explain the statement’s excellence, we will make three inquiries into the statement’s meaning.

(1)   Since when is a Jew obligated to specifically execute actions that point to the fact that Avraham is his/her progenitor? We all know that it is a virtue to love and fear God and to do His commandments, but since when is exemplifying that we are Avraham’s descendants by doing certain actions also identified as an end in of itself?

(2)   Why is Tzedaka the commandment that best exemplifies that we are Avraham’s descendants? We all know that Avraham epitomizes the characteristic of chesed (kindness), and Tzedaka is a high ranking form of chesed, but that does not explain why it would be chosen as the commandment that epitomizes our relationship to Avraham. Indeed, the Talmudic text that Rambam culled the statement from does not even use the word ‘Tzedaka,’ but rather גמולי חסד (Bestowing acts of kindness). Furthermore, we never even find Avraham giving out Tzedaka, at least not in its classic form, which is giving out charity to the poor. While he once tithed his spoils from war by giving ten percent over to Malkhitzedek, wouldn’t הכנסת אורחים  (welcoming guests into your home) or קירוב  (outreach) be greater examples of emulating our esteemed forefather? The Torah also goes out of its way to mention these cheseds; maybe we should choose הכנסת אורחים as the commandment which best exemplifies our relationship to Avraham for most Jews associate that commandment with him?

(3)   If we’re supposed to be more careful in the commandment of Tzedaka than any other positive commandment, how come this halakha never plays any importance in evaluating halakhic issues? For example, we have a principle of תדיר ושאינו תדיר תדיר קודם (when two obligations come to hand, the matter that is done more often should be done first) and מעלין ואין מורידין (one must solely progress in holiness and never regress) in regards to evaluating the order of executing commandments, so shouldn’t this halakha be placed along side those two principles when evaluating the order of any positive commandments? Or, given the opportunity to do only one of two positive commandments, let us employ the former principle!

Let us start to answer these questions by inquiring into what the word ‘להזהר’ (Leheezaher) really means. At first glance, most would not think twice about asserting that they know what it is to be cautious, but let us not forget that the Mishneh Torah is a halakha book which teaches one not only how to act, but how to think. To be cautious is not only to act a certain way, but to think in very certain terms. So what is Rambam prescribing by including this caution in the Mishneh Torah? He easily could have relegated the loosely quoted Talmudic material to Aggadic material and not recorded it at all!

Let us look at the way individuals in the common vernacular use the term for clarification. Examples of ways one might advise you to be cautious is to warn you by saying: ‘Be careful near the edge of the cliff’ or ‘Be careful crossing the street.’ By this, the warner is not just telling you to look at your surroundings, but informing you it is not just good enough to look at the surroundings. One must also be aware of how s/he interacts with the environment and how the environment interacts with him/her. To be cautious is to possess a certain awareness. S/He should not view her/himself as a passive entity of the environment, but should be able to distinguish the line that separates her/him from his environment, and accordingly, play an active role in determining the best and safest route for her/him to travel upon. S/He must take into account all things that are impediments, detrimental or advantageous to her/his safe arrival and all things that could be potentially good or bad to her/his ultimate goal. ‘What if I slipped on the rock near the edge’ or ‘What if a car suddenly turned the corner, would I still be safe?’ All these questions must be dealt with to be cautious. So to be cautious is to be an active player in one’s environment such that s/he’s able to internalize and respond to any given situation.

Rambam uses the term ‘להזהר’ (Leheezaher) many times throughout the Mishneh Torah, but we need only to look at a few examples to prove this point. We will identify two kinds of caution that both have already been subsumed under our former definition.

(1)   Hilkhos דעות (Characteristics) 4:17:

כשיצא אדם מן המרחץ ילבש בגדיו ויכסה ראשו בבית החיצון כדי שלא תשלוט בו רוח קרה, ואפילו בימות החמה צריך להזהר…

When a person leaves the bath house, he should put on his clothes and cover his head in the dressing room so that he does not catch a cold, and even in the winter, one should be careful about this…

In this example, we are given a classic example of caution because of the unlikely scenario. One should be cautious in this case because of the undefined future ramifications of the person’s wardrobe selections and the effects of weather on the immune system.

(2)   Hilkhos Dei’ot 6:10

חייב אדם להזהר ביתומים ואלמנות מפני שנפשן שפלה למאד ורוחם נמוכה אע”פ שהן בעלי ממון אפילו אלמנתו של מלך ויתומיו מוזהרים אנו עליהן…

A person needs to be cautious in his dealings with orphans and widows because their exceedingly downcast and are downhearted even if they might be rich, or the widow and orphans of a king, we should all be careful in our dealings with them…

This example more closely parallels our case from Hilkhos מתנות עניים (Gifts to the Poor). First, because it obligates the person to act (both cases uses the term obligatory), but more so because it shows us how we are supposed to treat another. There are no formal rules about how to treat an orphan or a widow, but we are enjoined to be cautious or be aware of them and their downtrodden situation. We are commanded to take their situation into account whenever we deal with them. We are prescribed to be aware.

Accordingly, in our case we are not prescribed to act in any specific fashion; therefore, when dealing with a halachic issue, this rule should not be taken into account. What we are prescribed to do is to be aware of this issue.

Now let us turn to the relationship between Avraham אבינו  (our Father) and Tzedaka in order to answer the first two questions. We will do this by trying to figure out the goal of Tzedaka; what is it? Some are inclined to mistranslate it as charity; but this is an impossibility, for in Hebrew we have the word ‘מתנה’ (gift), which in certain instances can be subsumed under a general title of Tzedaka (Hilkhos מתנות עניים 10:7), but more specifically refers to something you receive that you have not earned; this is charity. A better translation of our term would be ‘righteousness.’

The bare minimum action necessary to accomplish the commandment of Tzedaka is to give one-third of a shekel at least once a year (Hilkhos מתנות עניים 7:5), but at its highest level, one puts another in a situation where he need no longer rely on the support of others (Hilkhos מתנות עניים 10:7). When one finds a job for another (and to a lesser extent loans him/her money or goes into a partnership with him/her), you are not giving him/her anything; everything that s/he receives, s/he has coming to her/him based solely on the work and effort that s/he put forth. So we now know that it is not inherent within the meaning of ‘Tzedaka’ that a transfer of funds from one to another who has not earned it must take place.

But what is the root of Tzedaka? Why did God prescribe it? If anything it is destructive. By creating a communist or welfare state, we show people that they need not accomplish, they not set goals for themselves, their lives need not a purpose, for they can get by though the goodwill of others. But it is not our job to simply throw away money, for if a person claims that he is in need of clothing, we first check out his story to make sure that he is not swindling you out of a few bucks, and then provide him with the necessary clothes (Hilkhos מתנות עניים 7:6).

Let us turn to Avraham and why he is our forefather to understand what Tzedaka really is. Avraham was naturally a giver. Even when he spoke to God, he was willing to interrupt in order to take in guests. But what Avraham did not initially understand was that giving money to another in the name of מתנה (gift) is destructive: all it does is make the giver feel like a saint and it makes the receiver feel like a charity case. Given that giving was in Avraham’s nature it should not be surprising that most of Avraham’s tests involved hurting another or dealing with some pain inflicted on another. It was of the utmost importance for the sake of Avraham’s perfection for him to realize that giving to others for no greater purpose was useless, at best, and a low level of self gratification at worst.

It is within the very nature of Tzedaka that the meritoriousness of the action depends on the giver’s intentions. The Talmud says that when a non-Jew and a Jew both donate Tzedaka, they are not accomplishing identical acts. The Talmud asserts that when a non-Jew gives Tzedaka, he’s sinning, but when a Jew gives, he is acting righteously. Is this a double standard? Absolutely not! It is quite possible that when a non-Jew gives charity, s/he is acting righteously, but the Talmud questions her/his motives. Naturally it goes against human instinct, survival of the fittest and capitalism to arbitrarily give out to others who are not deserving of such benefit. Accordingly, the Talmud assumes that if a non-Jew is giving to another, without God first commanding her/him to do so, s/he must desire to give because s/he is getting something out of it; and s/he is, namely, undeserved self worth. S/He is boosting his own ego through the downtroddenness of another. This is how this despicable individual gives meaning to her/his life. By pointing out others failings and by supporting others, s/he merely attempts to reinforce her/his own greatness and superiority over others.

This explains why when Rambam enumerates the highest level of Tzedaka as an action which make another self-sufficient, he goes on to explain that the newly self-sufficient individual does not beg anymore (Hilkhos מתנות עניים 10:7). One would think that once one is self sufficient, a cessation in her/his begging would be the natural consequent in her/his new found freedom! What Rambam is explaining is that some people, even when they’re self sufficient, can’t see within themselves that they’re no longer a beggar; they need to also re-evaluate their situation such that they redefine their very existence; one must impart that they need not beg anymore, one must impart this new self definition, for until you do, they are now truly self-sufficient.

Now we could understand what it is that Tzedaka must accomplish in the giver and the recipient. When one gives Tzedaka to a poor person, he is not giving charity; he is offering that person another day: another day to put his own affairs in order and to get on the right track. When a person needs food or when a person is on your doorstep, the Torah commands us, unconditionally, to give to this type of destitute individual (Hilkhos מתנות עניים 7:6); they need the money just to get by or they wouldn’t be coming to you with such demeaning claims. But the second highest level of Tzedaka, after making a person self-sufficient, is to give in a way where the intended receiver is unaware that he is receiving (Hilkhos מתנות עניים 10:8). This is because Tzedaka is really a commandment that is between man and God, not between man and man. It is not our obligation to give in order to better our relationship with another; ideally there should be no relationship with the other person when the commandment of Tzedaka is being executed. Tzedaka exists in order that a person can see a reality outside her/himself. It is best if the giver is totally unaware of the recipient’s hand as well. The recipient is just the pawn in the Divine schemata to arrive at this abstruse point.

We can see this clearly within the actions of our forefather. By the tenth test, Avraham was worshiping God, not because of any benefit to himself, but because worshiping the Deity was truth; no one would deny that Avraham would have happily sacrificed his own life in order to spare the life of his beloved son, but that would be too easy. To live through the death of the son who God had promised would be one’s progenitor – that paradox is itself the test: Will one do more than is in his own nature to do? Giving up his own life would have been no test at all!

But if only after the tenth test was Avraham purged of any peripheral desires and ulterior motives, how did Avraham get started on the track towards truth? In the beginning of his section on the rules that deal with idolatry, Rambam offers a truncated version of the very beginnings of Avraham’s philosophies (הלכות עבודת כוכבים 1:3):

כיון שנגמל איתן זה התחיל לשוטט בדעתו והוא קטן והתחיל לחשוב ביום ובלילה והיה תמיה היאך אפשר שיהיה הגלגל הזה נוהג תמיד ולא יהיה לו מנהיג ומי יסבב אותו, כי אי אפשר שיסבב את עצמו, ולא היה לו  מלמד ולא מודיע דבר אלא מושקע באור כשדים בין עובדי כוכבים הטפשים ואביו ואמו וכל העם עובדי כוכבים והוא עובד עמהם ולבו משוטט ומבין עד שהשיג דרך האמת והבין קו הצדק מתבונתו הנכונה, וידע שיש  שם אלוה אחד והוא מנהיג הגלגל והוא ברא הכל ואין בכל הנמצא אלוה חוץ ממנו …

After this mighty man was weaned, he began to explore ideas even though he was but a child. He started to think day and night and wondered: how is it possible that the astronomical sphere to continually revolve without someone controlling it? Who is causing it to revolve? For it is impossible that it caused itself to revolve! He had no teacher, nor was there anyone to inform him of anything [of these matters]. Rather, he was entrenched in [the city of] Ur Kasdim (in Iraq) among the foolish idolaters. His father, his mother, and all the people [around him] were idol worshippers, and he would worship with them. [However,] his heart would explore matters and he would gain a depth of understanding in which he apprehended truth and understood the path of righteousness through its accurate understanding. And he knew that there was one God who controlled the sphere, and He created everything, and there is no other god save Him in all of existence.

Avraham concluded God’s existence based on St. Thomas’ cosmological argument (the first way). Everything must have a cause; therefore, there is a Prime Mover of everything who “everyone understands to be God.” A regular person would probably not make such fantastic inferences about metaphysical reality, for most people are so self indulgent, so self absorbed, that the very fact that they recognize other people’s existence at all can truly be called a miracle, let alone such a remote Being as the Creator of the Universe. Avraham was a person, who not only was aware of a reality external to his own being, but cared about it enough that he felt justified in making life altering and life threatening decisions based on it, so much so that the Gemara (Makkos 24A) says “He who goes after Righteousness (Tzedakot), this refers to Avraham our father.” And this is the characteristic that we as Jews must strive to emulate: to realize that the world external to ourselves exists, matters, and can be relied upon to define our lives by.

Far from being a capricious or theoretical matter, this worldview has many practical ramifications. Here are a few: Rambam (Hilkhos מתנות עניים 7:13) says that there’s a hierarchy of distribution to the recipients of charity: first one must supply for his own relatives (also 10:16), then his household, then his city, and only then should he give Tzedaka to other cities. One is incumbent to first deal with his own surrounding social reality and pressures and only then with others. Two halakhot later (7:15), we learn that one must supply for the synagogue that he most frequents before others. The pressures and burdens of reality should be dealt with in a bottom-up way: deal with the smaller matters, in your own vicinity, that are most closely related to yourself, and then, after that is finished, go on to fix the rest of the world. The point can be seen in Pirkei Avot (Ethics of Our Fathers 2:8): “He who increases Tzedaka, increases peace.”

This explains why Tzedaka was chosen as the commandment that best acts as a sign that we are from Avraham’s seed. One who gives Tzedaka recognizes that it does not make sense to give Tzedaka, that it would be best to keep your money in your pocket and save it for a rainy day, that your money should be spent however it best benefits yourself; but that does not matter from the Jewish perspective. The Talmud (Sotah 5A) relates how weighty the commandment of Tzedaka is when it states that “anyone who has relations with another fellow’s wife, even Tzedaka done in private will not absolve him from the rule of Hell.” Tzedaka is the commandment chosen that, at least potentially, could save one from the fires of Hell given one of the most heinous crimes! Tzedaka teaches us that matters external to out own scope of interests, worldviews and reality can and do have great significance in the world: let it be a homeless man, an orphan, a stray guest, a possible convert, or even God. One must be conscious of their existence and care enough to be in a situation where you could change their life and deal with the issues as they come up; this awareness is ‘Tzedaka’ and this is what epitomized Avraham’s life. He was a man solely concerned with matters external to his own ego and sense of self. This is why a poor person, who is supported by Tzedaka, must also give Tzedaka (Gittin 7A); it is incumbent upon all of use to be inculcated with this worldview, with Avraham’s worldview.

Possibly this explains Rambam’s statement in Hilkhos מתנות עניים  7:2 that when “one sees a poor person begging, if you turn your eyes and do not give him, then you’ve committed a sin.” Rambam could have omitted the earlier phrase and simply written that if you desist from providing for the indigent, then you are held culpable. It seems Rambam is informing us that the crime is to deny the existence of suffering that is directly in front of you. Rambam is not trying to exclude the case where one refrains from giving the beggar, for if you don’t have money on you, that could hardly be called a sin; in such a case, you must only do your best with the situation and appease the beggar in some fashion (10:5). But, to ignore the reality around you, and to close your eyes to the world, that is the sin mentioned in this halakha. Furthermore, Rambam says (10:3) that “anyone who turns his eyes from Tzedaka is called ‘Belial,’ just like one who worships idolatry is called ‘Belial.’” This is because the root of the two sins is identical: just like idolatry is self worship and the denial of the true external reality, so too one turns his eyes from Tzedaka is identified under the same title.

So it is not our job to exemplify that we are from the seed of the Tzadik Avraham; it is our job to epitomize the realization of the nature of his quest for truth. His quest is our quest. Unless one attempts her/his whole life to epitomize the trait that made Avraham chosen as our forefather, then s/he is wasting away her/his life with a barrel full of lies. S/He misplaces her/his allegiances, her/his own significance, and the impact that s/he could have on the world with self delusions of grandeur. Accordingly one who forces another to give Tzedaka is greater than he who gives himself (Hilkhos מתנות עניים ),10:6 for he is opening up the patron to a world and to a reality that until a couple of moments ago, was completely closed and unknown to him.

Now we could understand the subsequent line in the Rambam. He says that:

…ואין כסא ישראל מתכונן ודת האמת עומדת אלא בצדקה שנאמר בצדקה תכונני…

“…neither the throne of Israel is founded nor the true religion stands except on Tzedaka…”

for the Mitzvah of Tzedaka is the proof that Jews value things outside themselves, and only once you recognize the external world, the world of God, can one truly be called from the seed of Avraham.

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Is Judaism Too Dry?

There’s no deeper feeling than the awareness of a man that he has accepted upon himself the yoke of the Kingdom of Heaven, and there is no joy like the joy of one who lovingly bears this yoke of Torah and the Commandments.” – Yeshayahu Leibowitz

It seems more and more people today charge that Halakha (Jewish Law) is too dry, that it doesn’t have enough “soul” to it, or that it is a shame to limit Judaism to pedantic legal discussions.

Rather, someone may ask, shouldn’t it be more about how we feel about God, or about the values behind the law? It just seems so small minded to spend all of our time on the specifics of endlessly detailed rituals that don’t even make the world a better place! Why is it so important when a steak is kosher, or when a Sukkah (Tabernacle) is tall enough, or when it’s OK to turn the TV on?

In the end, wouldn’t it be better if Judaism was more spiritual, and less legal?

 These are good questions in my opinion, and I think they each deserve careful thought and consideration. Furthermore, I think it would be foolish to claim that we can answer them all with the certainty of a mathematical equation, even though, as Halakha observing Jews, we may try. And I really do believe there are many answers to each “Why” we have raised.

However, I do not want to write about any of the answers to these questions. Rather, I want to offer my side of the coin, since you’re talking about me when you mention to someone how odd it all is, that people place such emphasis on a legal system. Maybe my experience could serve as a kind of explanation for why we do what we do, or at least why I attempt to do what I believe I should be doing.

To me, Halakha is not dry or soulless. That is not the way it feels. It does not feel small minded, and though it is highly concerned with the smallest legal points, this is part of why keeping it is a rich spiritual experience.

Why do I feel this way?

Well, how could I not? It’s how I serve God.

I can’t tell you that I’m always excited about it, because I’m not. Keeping Halakha is hard, and trying to improve how I keep the mitzvot (commandments) is always a struggle. But I am committed to doing my best, and in my best moments, I love it completely.

What could be greater than serving God? My words of praise and thanks could never be enough, so I use the words of the Sages. My life could never be enough, but I may fill it with actions and moments that are devoted to serving Him.

These tiny details and pedantic discussions are my concern because I want -in my best moments- to serve God is the best way that I can. Not haphazardly, but with a commitment that researches even the smallest questions, and asks how long a wall should be, or what the best shade of color for an etrog (citron) would be. Halakha forever asks: How can we best fulfill what is required of us? And our Sages seek to answer just this question.

It may or may not improve the world when I light a candle, or say a blessing, but for many of us, the service of God is a world value in it of itself.

I cannot ask you to feel this way with us. That will have to be your decision. But now you know -to some of us at least- keeping the smallest elements of Jewish law is nothing less than the richest of experiences, where we may each take part in the best man can accomplish.

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Meḥitza: Do Orthodox prayers count in a Conservative Synagogue?

Before I accepted my present job, I was asked many times by my interviewers how I would deal and interact with other Jewish denominations. In other words, would my Orthodoxy impinge upon my ability to adequately execute my job? Without fail, I would respond that I plan on treating all Jews equally. However, I was quick to point out that I personally do endorse certain beliefs, and while I would sit in on a Reform or Conservative prayer services, I would not take part in their Tefillot (any aspects of the prayer service that qualify as halakhic prayer). To be honest, I really had not put much thought into that position. I’m sure some rabbi once told it to me, and I heard that is what Richard Joel – the current President of Yeshiva University – did when he headed Hillel International. Really, I just assumed it was the Orthodox perspective (even though, obviously, some Orthodox individuals would never even enter a Reform or Conservative House of Prayer, let alone during prayers).

The truth is that there are certain issues that, if present, invalidate the possibility of a halkhicly valid prayer taking place. R. Yosef Karo in his law book, the Shulḥan Aruch, lists them, including urine, bugs, putrid smells, etc. Additionally, I was taught that the lack of a meḥitza (halakhic wall separating the sexes), position of the bimah (Torah dais), musical instrument accompaniment, employment of microphones, women taking certain roles of prominence, female choirs, etc., possibly also fall into this category. In the following analysis, I would like to focus on just one of these: meḥitzah. While this topic has been written about as if it is the holy grail of prayer by many, I believe a new look at it would prove to be beneficial.

There’s an old anecdote that I think I made part of it up. It’s a dialogue between a Conservative and an Orthodox Jew; it goes as follows:
Conservative Jew: Why doesn’t Rav Yosef Karo’s law book, the Shulḥan Aruch, have a section for the laws of meḥitza?
Orthodox Jew: Why?
Conservative Jew: We learn from this that a synagogue really doesn’t need a meḥitza.
Orthodox Jew: No, we learn from this that a synagogue really doesn’t need women. (1)

It’s true: there are no laws of meḥitza in the primary law book of the Jews. Similarly, it is true: women have no obligation to pray in a synagogue or with a quorum.

The primary source cited for the laws of meḥitza is a verse from Zachariah (12:12); it reads: “The land will mourn, each family by itself…” The Talmud (Sukkah 52a) explains that this verse refers to the Messianic era: even though the world’s populace will be freed of the evil inclination, nonethless, men and women will still congregate into distinct groups to mourn separately. Apparently, there is a need to separate women and men, even at a funeral, even when the evil inclination enjoys no hold upon mankind. Indeed, this understanding of the verse was so firmly established, the Talmud explains, the Temple officials of the Second Commonwealth augmented the Temple’s structure based on it. They erected a balcony in the Temple’s Courtyard in order to thwart any fraternizing between the sexes. While any additions to the Temple are forbidden, as the precise structural dimensions of the Temple were prescribed in detail in the Bible (2), when the option of reorganizing traffic failed, the verse from Zachariah proffered the necessary justification, through an a fortiori argument, to overrule the Divine schemata and construct a balcony.
In other words, originally in the Temple, there was no balcony. Men and women walked wherever they wanted in the Temple’s Ezrat Nashim (Women’s Courtyard). When fraternizing at Temple functions became a problem, first the Temple staff reorganized traffic, and then when that proved ineffective, they decided to build a balcony in the Temple to separate the sexes. This Talmudic text is the sole source for the possibility of building meḥitza in synagogues today in order to allow both genders to pray in one space. But can this case alone justify what Orthodox synagogues presently do? Let’s try to understand the connection between this balcony and our modern meḥitzot.

  1. The Temple was not the Ancient equivalent of our modern synagogues. Even though the Temple was a place of prayer, the predominant method of worshipping God in the Temple was via animal offerings. Additionally, it was a place for Jews to congregate. For example, on Sukkot, the Simḥat Beit Ha-Sho’eiva (a religious type of party) was celebrated there. The Talmud identifies this party as the impetus for building the balcony. But if this is the case, it is easier to justify the need for separating the sexes at a party (even a religious one at the Holy Temple) than at a synagogue where people are praying. It is not obvious that one can make an a fortiori argument from the Temple case to all synagogues. Indeed, that parallel would have been more apt if we applied it to placing some form of separation in a synagogue’s social hall. One expects levity at parties, but not necessarily at prayers. Accordingly, there is no reason to assume Temple officials banned women from the lower level of the Ezrat Nashim, except during party hours.
  2.  A balcony, not a meḥitza, was constructed in the Temple. Most balconies can function as a meḥitza (as one of the primary goals of a meḥitza is to separate), but a meḥitza is not usually a balcony; rather a meḥitza enjoys laws that are specific to it: it must be at least ten tefaḥim (unit of length corresponding to the length of a palm) high and enjoys certain additional requirements regarding the nature of the wall itself. A balcony, on the other hand, is just a separate floor. I personally would not call a balcony a meḥitza, but rather a separate area. And, regarding a balcony, you can still see the women from the ground floor, eye to eye, talk with them, and depending on the length of the skirt…
  3. Even if the balcony can be qualified as a type of meḥitza, separating the genders by relocating one to a balcony was not the ideal way that the Temple officials would have wanted to deal with the fraternizing. They first tried to re-orient traffic. That did not work. But what if it did? Obviously that would have been good enough, and the Temple officials would not have needed to construct the balcony. So, if the traffic-change was an acceptable option, (assuming it worked) why do we assume that the Sages made an eternal decree that balconies are the only way to minimize fraternizing? Maybe we should always begin by changing traffic, and subsequently go the balcony route in our synagogues today?

Accordingly, based on these three aforementioned issues, it is quite problematic to cull the notion of the meḥitza from the Talmudic source and simply import it to our modern synagogues. However, that is not the end of the story. There is another way that we may be able to introduce a meḥitza into our synagogues. There are certain problems that might arise during prayer that are me’akeiv. (We mentioned a few above.) When something is me’akeiv, it obviates the possibility of the religious action taking place. For example, one cannot recite the Shma without some separation between one’s genitals and his heart. If he does recite the Shma without this separation, then it is considered as if he did not execute that commandment; indeed, it would have to be repeated in full once he acquires this separation if he wants to fulfill that commandment. Similarly, prayer without a meḥitzah might be me’akeiv for another reason. But what?
In general, the construction of a meḥitza will facilitate one or both of the following two matters: separation, and eliminating or at least minimizing visibility. If the meḥitza does not separate, it is not a meḥitza. In other words, a meḥitza is first and foremost a wall. Some walls don’t extend all the way to the ground, some are made of translucent material, some are not very high, some are lattice, etc. Consequently, the Rabbis derive the laws of meḥitza from the laws that regulate the definition of a regular wall (which is important for defining land ownership). R. Moshe Feinstein took this approach and it is reflected throughout his responsa writings on the topic of meḥitza (3). The second issue, visibility beyond the partition, is a bit harder to define. Different types of walls affect the line of vision between people on opposite sides of the partition differently: you can see through, over, or under certain walls. Not all walls eliminate the line of vision between the two sides at all. So now we may ask: given that the two primary features of a wall are separation and minimization of visibility, is there a specific problem with seeing or not separating from women during prayers?
(A) First there is the issue of kalot rosh (frivolity or silliness). It is forbidden to pray with kalot rosh. While speaking to women is not truly a normative example of kalot rosh, some Rabbis identify conversing with females as the paradigm of kalot rosh.
(B) When females are visible (and sometimes not visible) to males during prayers, and vice verse, one encounters the issue of forbidden (sexual) thoughts. In general, this was the primary issue that a meḥitza addresses for the Ḥatam Sofer. (4)

Are these two issues truly issues? The truth is, even without executing a religious action, it is forbidden to sexualize females in your head. Rav Sheishet says that whoever looks at the pinky of a woman, needs atonement as if he stared at her genitals (Shabbat 64b). Rambam explains: One may not gaze at the beauty of a (woman forbidden to him as an) ervah (forbidden sexual partner)… If he does so for pleasure, he receives lashes. Looking even at the pinky for pleasure is like looking at the place of ervah. In other words, one may not look at any part of the female body for pleasure. (Hilkhot Issurei Bi’ah 21:2). (5) Rambam adds: One may not look at women hanging up laundry. It is even forbidden to look at colored clothing of a woman he recognizes lest he come to have thoughts. In fact, throughout chapter 21, Rambam enumerates a list of actions that one is forbidden from engaging in because of its licentious nature. The Tur, who mostly cuts and pastes that chapter from the Rambam adds: One should stay very far away from women. He may not motion with his hands or wink at one of the arayot (forbidden relations) and he may not laugh with her or… look at her or even smell her perfume. And it is forbidden to even look at the colored garments of a woman he knows (Even Ha-Ezer 21). We see from these Rabbis that peering at females (for pleasure) is not specifically a prayer issue but always an issue, independent of when it is occurring.
Furthermore, we must note another issue which, arguably, undermines the position that peering at females (in a non-pleasure seeking way) invalidates prayers . One differentiation that halakhists many times fail to make is the difference between reciting the Shma and praying the Amida (the tri-daily recitation of the 19 blessings). The Shulḥan Arukh devotes sixteen chapters (O”Ḥ 73-88) to the different situations that would make it impossible to recite the Shma and have it count to fulfill one’s Biblical obligation. There are a whole other set of rules by Amida (O”Ḥ 90-104). There are some overlaps (like if one has to fart – O”Ḥ 92), but in truth, the two sets of rules are completely self-contained and do not apply one to the other. This concept is sometimes very hard for people to internalize. After all, the Shma is said immediately before Amida and they both feel like the same thing; they both feel like prayer. But they are not the same things. When one recites the Shma, one is fulfilling one of the 613 Biblical commandments: just like shaking the lulav (palm-frond) on Sukkot, the daily donning of tefillin (phylacteries) or affixing a mezuzah to one’s doorframe. It just so happens that the way that one fulfills this commandment is through reciting something, as opposed to doing something. Accordingly, it is just a coincidence that we fulfill the commandment to pray and the Shma through recitation, and that coincidence makes them feel so similar. That being clear, it should come as no surprise that two sets of mostly unrelated laws govern the when, how and if the Shma or Amida can take place and still be regarded as halakhicly valid. Accordingly, while females are mentioned (in certain guises) as impediments to validly reciting the Shma, they are actually never mentioned ever as an issue that can be an impediment to validly reciting the Amida. That alone should point to the fact that according to Jewish Law one is permitted to, at least, see a woman during prayers without the prayer becoming null in void.

Last, while the issue of kalot rosh should be taken into consideration when reciting the Amida, as kalot rosh is one of the listed impediments to a successful Amida, the matter should be evaluated on an individual level without making blanket statements. For example, if one cannot concentrate on his/her Amida when the other sex is in the same room, and for that person, this lack of concentration leads to kalot rosh, even with a meḥitza, it would be forbidden for that person to participate in that prayer session.

Conclusions:

  • It is not at all obvious from the Talmudic text that a synagogue needs a meḥitza. The Temple balcony itself, specified as employed during religious parties, is not a good paradigm for learning out the necessity or the laws of meḥitza.
  • The Talmud never says that having women in eye-sight is a form of kalot rosh. Also, that would be a strange usage of the phrase ‘kalot rosh’.
  • While it is forbidden to derive pleasure from peering at a female, that does not apply more so to the times of reciting the Amida than any other times. So, while it is appropriate to do all we can to ensure that such thoughts are excluded (or at least minimized) during prayer services, that does not mean women must be out of sight for men to be able to pray. Otherwise, R. Moshe Feinstein would not permit the type of meḥitza that he allowed, and the Temple would not allow the construction of the balcony as it did.
  • There is a special law not to peer at the parts of females that are generally covered during the recital of the Shma. Nonetheless, one may look away or close one’s eyes during those moments. Furthermore, as that proscription only applies to parts of a female that are usually covered, in our society, arguably, not much of the female would fall under this category.

Now we may conclude with a case study.
 The case: An Orthodox Jew attends a Reform or Conservative prayer service. All the Jews (and possibly non-Jews) present are congregated together without a meḥitza. What does this mean for the Orthodox Jew?
First, obviously it is best to pray in an Orthodox environment for this person. Even after all we said, there is a massive benefit to a meḥitza. Most males lack the willpower to refrain from deriving pleasure from the females around them. While there is nothing the Rabbis can do for the street masses save tell them to walk with their eyes focused towards the ground (which some do, and some regularly walk into walls), it should be obvious that during the time that we devote to worshipping God (ie prayer), the Rabbis ought to place extra protections to minimize or eliminate these forbidden thoughts. That being said, considering all that we have pointed out above, it seems that an Orthodox individual may pray in that room, even though it is best not to. In other words, the meḥitza is not me’akeiv.
Given the case, however, there are many other issues that have to be dealt with:

  1. If there are ten Jewish adult males present, I do not see why this would not count for a minyan, even if they are dispersed among the women or non-Jews.
  2. Even if the Jews desecrate the Sabbath publicly (by driving or using their iphones at prayers), this does not invalidate them for counting towards a minyan (quorum).
  3. It is forbidden to stare or even look at the females in a sexual manner, but that has nothing to do specifically with prayers. That is always a rule. But, if the female presence would lead to kalot rosh for you, it would be forbidden to recite the Amida.
  4. During the recitation of the Shma, he would have to close his eyes or look away. But, as the most halakhic authorities are solely worried about a male seeing a feature of the female that is usually unexposed (S”A 75), or a voice/song that one is unaccustomed to hearing (Rema 75:3) during the recitation of the Shma, that should not be a problem in this environment.
  5. Furthermore, most Modern Orthodox Jews, in general, do not take into consideration female dress or headcoverings at the Shabbat table (and look away if necessary during Kiddush (sanctification prayer) and welcome female singing at synagogue (and some at the Shabbat table).

It seems to me that there is no me’akeiv here that would make the recitation of the Shma or prayer impossible for the Orthodox Jew at the Reform or Conservative.
To finish, I would like to offer two accounts I’ve heard many times. Famously, Rabbi Soloveitchik use to give heiterim (permission) to Orthodox rabbis to accept Conservative appointments even though the synagogue either lacked a Kosher Meḥitza or did not have one at all. This consent was only temporary, and after five years or so, R. Soloveitchik pre-warned the rabbinical appointee that the synagogue must erect or raise the meḥitza (depending on the situation) or the rabbi must quit. While Judaism embraces certain utilitarian trends, Briskers do not as quickly. Accordingly, this story always struck me as weird. In fact, this story should be enough to rule that, in fact, praying without a meḥitza is not technically me’akeiv to prayers. Otherwise, R. Soloveitchik could not have allowed such a stipulation. R. Soloveitchik would have never allowed, even temporarily, for example, prayer at a nudist colony. Furthermore, R. Soloveitchik was wont to also say it is better not to hear the shofar blown in synagogue on Rosh Hashanah – a Biblical commandment – than to hear it at a synagogue without a meḥitzah. Both these stories illustrate the fact that, at least in R. Soloveitchik’s case, there were extra-halakhic considerations directing his rulings regarding mechitzot. If it was forbidden to pray without a meḥitzah present, I doubt that Rabbi Soloveitchik would allow it under any circumstances. Similarly, even if it is was forbidden to pray at a certain synagogue for some reason, still we would not expect that impediment to be taken into consideration when we evaluate whether one heard a valid shofar blowing. (6)

Footnotes:

(1) And, for those who have visited Tzefat, note that there was a women’s section in R. Yosef Karo’s synagogue. It just happened to be behind a big wall, and hence did not need an additional meḥitza.

(2) See I Chronicles 28:11

(3)

  •  The meḥitza need be at least shoulder height. In other words, one can see over  it (O”Ḥ 1:40, 42).
  • Glass is permitted to be used as a meḥitza even though you can see right through it (O”Ḥ 1:43).
  • A synagogue that does not have a meḥitza should at least have the men and women sit at separate sides (O”Ḥ 1:44).
  • The meḥitza can have tiny holes in it (O”Ḥ 4:32).  All of these laws reflect the fact that R.  Moshe Feinstein viewed the primary function of a meḥitza as separation.

(4) Accordingly, when one reads through the Ḥatam Sofer on the topic of meḥitza, there is a
focus about ensuring that males and females cannot see one another through the meḥitza.

(5) Note how Rambam adds the words “for pleasure” ensuring that one is not sinning every
time that he looks at a female.

(6) See the Laws of Shofar blowing

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