How Halacha Can Change
This article appears in the second volume of Keren, a journal put out by Yeshivat Maharat. It is essentially the same as the version there with the exception of an editorial change in the first paragraph that I feel changes my meaning. To understand the context, I refer the reader to the symposium of articles that appears in that volume. As noted in the journal version of my article, I wrote the article before R. Zev Farber, the author of the lead article, took some very controversial positions regarding authorship of the Torah. Though as I note below, I found his article in this journal quite impressive, my overall estimation of his potential as a rabbinic leader has been seriously effected for the worse due to these subsequent developments.
Not that long ago, one would have been hard pressed to find a middle ground between feminist dilettantes and an Orthodox rabbinate, that make little effort to truly understand – let alone, address – feminist concerns. Neither side was to blame – it takes time for sophistication concerning any phenomena to develop. Rabbi Zev Farber’s finely researched and thought-out suggestion as to what can be done to relieve the possible dissonance between the traditional liturgy and the actual views and opinions of many in the Modern Orthodox community is an indication of how far we have come from such a situation. Farber shows respect for the system and understanding of its limits, while still trying to put forward a progressive agenda. Indeed, his appreciation of nuance on the one hand and his creativity on the other distinguish him as someone fit for such a task.
Yet, as much as I am in admiration of the article and its sensitivity to the halakhic process, I am afraid that he will not get very far. I am reminded of Rabbi Mandel Shapiro’s famous article about women’s aliyot in the Edah Journal not so long ago. It drew a lot of attention and was used as a platform by a handful of institutions to allow women’s aliyot. All in all, however, it is hard to say that it caused monumental change in Modern Orthodox practice. This was neither due to the weakness of his article nor to the strength of the counter-arguments that followed. To the contrary, Shapiro made a strong and appropriately dispassionate argument for the permissibility of women’s aliyot that was far from completely refuted by his opponents. Rather, the bulk of the Modern Orthodox world did not accept Shapiro’s position normatively because most of its constituents did not accept his authority. It is not that they reject the rabbinic credentials of scholars like Shapiro – it is that they are apprehensive about following rabbis who are not well known to them in such controversial matters. In other words, the problem is not in the pesaq, it is in the poseq. This is not to demean Shapiro or Farber. It is simply to say that the first requirements for the acceptance of a pesaq are the author’s reputation and following. In a New York Times interview, Rabbi Moshe Feinstein once candidly recounted how he became a recognized poseq – ''If people see that one answer is good and another answer is good, gradually you will be accepted.'' If Farber continues to write and to serve the community with sensitivity and yirat shamayim, he may one day achieve this. In the meantime, he cannot realistically expect to be followed.
As an important aside, it should be noted that the stature of a poseq doesn’t make the pesaq any more true. But what articles like Farber’s seem to miss is that truth is not the central issue, authority is. Since there is no formal leadership structure in contemporary Judaism, authority is actually given to those we choose to give it to. That being the case, such articles can only be the first step in the actual implementation of halakhic change.
In truth, however, the significance of Farber’s article goes well beyond whether it is accepted or not – what is most important about the article is the meta-arguments that Farber makes along the way. Actually, one has to read to the very end of the article to find his most important statement; “that we meet the challenge the way our ancestors did.” He continues, “There is a way to adjust the Creation Blessings to reflect the core values of the Modern Orthodox community while keeping them in line with traditional texts as much as possible. This was the way of the great medieval sages; it can be our way as well.” (Farber 49ADJUST) Indeed it can. Regardless of our feeling about the issue at hand, I believe this call fundamental – far more important than adjusting this particular halakhah to contemporary circumstances is the general mandate for contemporary poseqim to use the same tools that the Rishonim (as well as many great Achronim) used to adapt halakhah to changing circumstances.
Yet for many, it would seem that this very point is the problem. A sort of “chadash asur min haTorah” approach to halakhah has crept into even the Modern Orthodox world. The irony is that the latter approach is in itself a novelty and – more than anything else – simply a sociologically driven “circling of the wagons” response to the emergence of heterodox movements: In response to Reform’s use of changing conditions as a premise to change just about anything, the Orthodox responded by becoming much more hesitant about changing any halakhah. If this unusual approach to halakhah may have had some benefits in the short term, it cannot be viewed as a long term solution and, by now, seems to have outlived its usefulness.
In the meantime, however, as reflected in the much more sober and somber conclusions of Joseph Tabory, “the way of the great medieval sages” is not ours. And until it becomes ours, even a well-known poseq will be suspect if he takes a position like Farber’s.
There is another meta-argument that I think worthy of our attention, this time not for what it says but what it misses. Farber writes that “it seems to me that there is no way of making a successful blessing over gender distinctions in a society that is pushing gender equality.” (Farber 47 ADJUST) This statement is likely a casual observation and not meant to be a grand position statement. Nonetheless, it cannot go unchallenged.
Taking the rationale for the blessings from the most straightforward reading of the original sources, the Tosefta Berakhot 6:23 and TB Menahot 43b-44a – that it is based on rather incontrovertible distinctions between men and women in halakhah (i. e. the dispensation of women from keeping positive time-bound laws) – one must confront the fact that Orthodox Judaism will not likely be able to do away with all such distinctions. That being the case, we must come to the conclusion that classical Judaism endorses at least a minimal level of gender distinction. In fact, it would be hard to envision a classical religious tradition saying otherwise.
Humanism and a basic sense of human equality are certainly to be found in major Jewish sources and I have no doubt that classical Judaism ultimately supported the dignity of all those created in the Divine image. That does not turn into a Liberal conception of human rights. If Farber is saying that we can no longer accept the very notion of gender distinctions, the problem is much bigger than the article and puts the entire endeavor of Modern Orthodoxy in question. For when “society is pushing gender equality,” that doesn’t mean that we should have to agree with it. There are many reasons that one might advance for pushing gender equality within Orthodoxy. The fact that Western society is doing so, to my way of thinking, is not one of them. Indeed to take this line of reason to a place that I’m sure the author had not intended, if Judaism must always be in agreement with current ideology, Judaism would ultimately be redundant.
Finally, although Farber states in his abstract that he is not addressing whether the blessing should be controversial but rather merely reflecting on what can be done, assuming the need to do something, I can’t leave it at that. I realize that this is a topic that has already been discussed extensively by others, but I would feel remiss if I did not offer what I believe to be a few important observations.
Farber is undoubtedly correct that the blessing irks many in some Modern Orthodox circles. I admit to being uncomfortable with it myself. But when all is said and done, I wonder whether the source of our discomfort is reading into the blessing much more than is actually there.
Since the blessing was instituted by the rabbis, it is to them that we should turn to understand what they had in mind. Returning once more to the first recorded rabbinic source, the Tosefta clearly explains that the reason a man is thankful for not being a woman is because she is not obligated to do (time-bound positive) commandments. The subsequent discussion in Menahot that questions whether women and slaves are not the same is also most easily understood as relating to the amount of mitzvot they are commanded. Thus, the most basic understanding of the rabbinic position is that men are simply thanking God for that advantage.
Blessings of praise generally respond to a reality, not to what we would like that reality to be. As such, the compatibility with our views should revolve around the question of what we actually see, not what we would like to see - they describe, they do not prescribe. And given the reality of inequality of religious obligation, should the beneficiary of unequal circumstances not praise God for this advantage? I think that there is wisdom in the rabbis’ decision that one should.
Would a basketball player not want to thank God for not making him short? Or to take a more emotionally laden example, if I didn’t go to my job at the World Trade Center on 9/11, my natural feeling will be thanks that I didn’t go there that day, even if I am embarrassed to admit that to the family that lost a relative there. That feeling of thanks is not agreement that others should have died and certainly not a prescriptive statement that, in the future, I will only care about myself and my family. It is an expression of what I feel right now in response to a reality that I have experienced (and in the case of blessings, also about what I expect to experience based on the current reality).
Political correctness notwithstanding, it is natural to be thankful for any advantage we are given. To deny this is to deny our natural gratitude and to leave it devoid of religious meaning. Perhaps part of the messianic agenda is to eliminate the selfishness that such emotions represent, but so long as these emotions are part of our make-up, using them as a tool to appreciate God seems to me a legitimate strategy.
 Particularly impressive is his halakhic intuition which, while ostensibly based in the Taz, is really a keen observation of what these blessings are trying to accomplish and which pieces can be used to more fully reach these ends. In line with that, I found the criteria that he sets up in coming up with his solution to be very insightful.
 Shapiro, Mendel,”Qeriat ha-Torah by Women: A Halakhic Analysis,” Edah Journal 1:2 June 2001.
 See R. Yehudah Herzl Henkin’s “Qeriat ha-Torah by Women: Where We Stand Today,” Edah Journal 1:2 June 2001 and R. Gidon Rothstein’s “Women’s Aliyot in Contemporary Synagogues,” Tradition 39:2 Summer 2005, 36-58.
 Shenker, Israel L. “Responsa: The Law as Seen by Rabbis for 1,000 Years,“ New York Times, May 5, 1975, p.33, 61.
 The interested reader is directed to my lectures on this topic entitled Criteria and Parameters for the Legal Interpretation of Halakha archived at http://www.cardozoschool.org/audio.asp
 The famous Mishnaic phrase (Orlah 3:9) adopted by the Chatam Sofer and others as somewhat of a slogan against anything that smacked of change.
 See Tabory 84-86 in this volume and also below in this essay.
 Besides the other entries in this volume, the reader is directed to JOFA’s bibliography on the topic archived at http://www.jofa.org/social.php/ritual/prayer/exclusionary
 I am not against the digging out of implicit meaning in a text and there is certainly a rich literature explaining this blessing in ways both more and less likely to reflect our sensibilities, but the blessing’s opponents may be creating a tempest in a teapot by giving authoritative status to a more negative interpretation than what we can know was intended.
 Granted, this is only one of two explanations given by Rashi (and others) but in view of the Tosefta, I see this explanation to be much more likely.
 Though Tabory notes this, he then makes an unnecessary inference that since a man is commanded in doing more, that it must be because, “presumably, he is able to fulfill them [as opposed to a woman].”
 As astutely pointed out by Tabory, flaunting this advantage by making the blessing in front of the disadvantaged is an entirely different question. But it appears that this is not Farber’s main concern.
 I have highlighted the negative formulation in my examples to show that such a formulation need not be seen as illegitimate as suggested by Tabory.