In our last post, we discussed last February’s decision of the “Rabbinic Panel” of the Orthodox Union (OU) prohibiting female clergy in the OU’s member congregations. That decision is accompanied by an extended essay in which the members of the panel, seven leading centrist[1] Orthodox poskim, set forth the reasoning behind it. The essay begins with a description of “halakhic methodology,” the way in which poskim are said to arrive at their decisions. We called that description “refreshingly honest” because it freely acknowledges the dominant role played by the “halakhic ethos” or “mesorah,” the halakhist’s ideological worldview, his sense of what an “authentic” interpretation of Torah would require, in the decision-making process. This is especially important in our case, because the legal sources, the halakhic texts upon which any rabbinical ruling is ostensibly based, are insufficient to answer the question whether women may serve as rabbis or other clergy.[2]
What do we mean by “insufficient”? As an example, let’s look at the major halakhic-textual argument that the Rabbinic Panel raises against women serving as clergy.[3] Deuteronomy 17:15, addressing the possibility that the people will one day desire to establish a monarchy, reads: “You shall be free to set (שום תשים, som tasim) a king (מלך, melekh) over yourself.”[4] A midrash (Sifre D’varim, ch. 157) reads the word melekh to exclude the appointment of a queen. On the basis of that midrash, along with a Talmudic statement (B. Y’vamot 45b) that interprets the words som tasim to cover all positions of authority (serarah) , Rambam rules (Hil. M’lakhim 1:5) that women are ineligible for any such appointment. And thus, says the panel, “As Rabbinical positions have been traditionally understood as paradigmatic of serarah, they would be restricted to men in accordance with the Rambam’s position.”
What do we make of this argument? The first thing to note is that this point of halakhah is the subject of a long and complex discussion in the sources, and – as the members of the OU Rabbinical Panel would be the first to agree – not all opinions coincide with theirs. You can find detailed summaries here and here (English) and here (Hebrew). For the moment, let’s briefly note some of the major halakhic objections to the Panel’s position.
1. Not all authorities agree with Rambam’s ruling. Many of them hold that the passage in Sifre disqualifying a woman from serving as a monarch does not bar them from other positions of authority.
2. If women are forbidden to occupy positions of communal authority, how do we account for the case of Deborah, who is described (Judges 4:4) as both a prophet (n’vi’ah) and a judge/political leader (shoftah) in ancient Israel? Commentators have wrestled with this kushya for centuries, and they suggest a number of teirutzim (resolutions): Deborah was a special case (the exception that proves the rule); she wasn’t really a “judge” (and didn’t really exert authority over the community); and so forth. One of the explanations offered is that Deborah was not “appointed” as a judge by an authority superior to the people, as is the case with a monarch,[5] but rather by the people themselves, who accepted her authority on their own accord.[6] From this, some authorities conclude that the prohibition against the appointment of women does not apply when the position in question is filled through the process of election (kabalah) by the community, which is the way in which all communal positions, including that of a synagogue’s rabbi, are filled in our time.
3. The term serarah is usually defined as “coercive authority,” the power to force members of a community to take or refrain from actions against their will. A king enjoys that sort of power… but the rabbi of a shul??[7] True, the rabbi is the synagogue’s halakhic authority, but that’s because the members of the congregation have elected him – or her – to that position and have stipulated their acceptance of the rabbi’s decisions (see the previous paragraph).
4. If women are indeed barred by Jewish law from holding offices of communal authority, how do the religious parties in Israel justify taking part in elections that place women in the Knesset and at the head of government ministries? A long line of halakhists associated with that community, headed by Chief Rabbis Yitzhak Halevy Herzog and Benzion Meir Hai Ouziel, have ruled that the halakhah permits women to hold these government offices, largely because political officials in democratic polities are elected by the people and therefore are not analogous to the kings of Israel. Given that government officials and legislators wield considerably more coercive power than does your average synagogue rabbi, we would reason by kal vaḥomer: if the halakhah does not forbid women from holding political office, then it certainly doesn’t prevent them from serving as synagogue clergy.
None of this is meant to be conclusive. We’re confident that the members of the OU Rabbinic Panel could respond to each of these objections at length. The point is, first, that there are arguments in support of the opposite conclusion, and second, that many eminent authorities disagree with their understanding of the law. This is what we mean when we say that “the texts are insufficient”:[8] the texts, in and of themselves, do not suffice to justify the Rabbinic Panel’s ruling, because they are subject to more than one line of interpretation. To decide the question requires that one choose between these alternatives, determining just which is the better, more persuasive reading of the texts. That choice, as the members of the Rabbinic Panel indicate in their essay, will depend upon the lens through which we read the texts and make meaning from them. Whether we call it “ideology,” “hashkafah,” or “halakhic ethos,” that interpretive lens is inevitable and indispensable: it’s the only way to decide, the only way that the Rabbinic Panel – or anyone else – can come to a conclusion as to “what the halakhah says.”
Again, we applaud the OU Rabbinic Panel for acknowledging the critical role that “halakhic ethos” plays in determining the “correct” halakhic decision on many difficult and sensitive issues. All we can do, in summary, is to repeat the central affirmation of our own progressive halakhic outlook: namely, that their version of the halakhic ethos is not the only one in existence.
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[1] “Centrist”? Aren’t we tired of the hackneyed “left-right-center” ideological map by which we pigeonhole the members of just about every group in captivity? We certainly are, but in the absence of a better labeling system it’s just too convenient to pass up. In this case, “centrist” refers to Orthodox rabbis whose primary affiliations are with the OU, the Rabbi Isaac Elchanan Theological Seminary (RIETS) of Yeshiva University, and allied institutions in North America, Israel, and elsewhere. (Note the frequent citations of Rabbi Joseph Soloveitchik in the Rabbinic Panel’s essay.) This places them in Orthodoxy’s ideological middle, in between the ḥaredim on the right and “Open Orthodoxy” on the left. Yes, we know… this is imprecise as all get-out, but as shorthand it’s awfully convenient.
[2] As the essay delicately puts it on p. 2: “Issues with wider implications and multiple spheres of impact, however, demand consideration of factors that transcend strictly legal sources and require a broader approach.” In other words, those sources clearly say “no” to women clergy only when they are interpreted through the proper filter, the correct halakhic ethos.
[3] See the essay, p. 8.
[4] The Jewish Publication Society translation adopts the contextual sense (p’shat) of the verse: the appointment of a king is optional, not a requirement (and see the commentary of ibn Ezra ad loc). Most authorities, however, follow the Talmud (B. Sanhedrin 20b) and assert that it is a mitzvah for the people to set a king over them upon entering the land of Israel (Rambam, Hil. M’lakhim 1:1).
[5] The king is to be set in authority by the Sanhedrin acting in accord with a prophet; Rambam, Hil. M’lakhim 1:3.
[6] See Ramban to Shevuot 30a: מקבלין היו דבריה ברצונם. The theory is repeated in Rashba (שהיו מקבלים אותה כדרך שאדם מקבל אחד מן הקרובים), Ritva (שקבלוה עליהם לדין שהמקבל עליו לדין ולעדות קרוב או פסול דינו דין ועדותו עדות), and R. Nissim Gerondi in their ḥidushim on the passage, as well as Arukh Hashulḥan, Ḥoshen Mishpat 7:4.
[7] Ask any shul rabbi whether s/he exercises serarah over the congregation! Meanwhile, take a look at Rabbi Moshe Feinstein, Resp. Igrot Moshe, Yore De`ah 4:26, who rules that the position of rosh yeshivah in our day is not characterized by the exercise of serarah.
[8]. It’s more complete to say “necessary but insufficient.” The texts are necessary because halakhic discourse is by definition an argument over the reading of an identified body of texts. They are insufficient because the texts alone, certainly on this question, do not demand a particular conclusion in the absence of the halakhic ethos through which we understand them.