Further on women as prayer leaders and their role in communal prayer: an exchange, communal prayer and women

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Date: Fall 1993
Publisher: American Jewish Congress
Document Type: Article
Length: 4,695 words

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Abstract: 

Prof Judith Hauptman is correct in maintaining that all Jewish women should pray, however, she erroneously asserts that women may act as prayer leaders in communal prayer. Jewish law states that all Jews should pray daily but it distinguishes between personal and communal prayer. It requires a quorum of ten free adult males for communal prayer and women cannot count for a quorum. Women are exempt from the obligations of communal prayer, therefore cannot lead it.

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I. Introduction

PROFESSOR JUDITH HAUPTMAN'S ARTIcle, "Women and Prayer: An Attempt to Dispel Some Fallacies" (JUDAISM 42:94-103 [1993]), addresses two fundamentally different issues. Hauptman's first section, which reviews the obligation of women to pray, is on point. Jewish law requires men and women to pray daily, and the overwhelming majority of authorities rule that this obligation encompasses the duty for all to say certain fixed prayers, including shemoneh esrei (the "Eighteen Benedictions") every day. Anyone who is involved in the Orthodox Jewish day school system knows that such is the policy of all Jewish schools and communities.(1) Even the Artscroll prayerbook (p. 979) states clearly that the preferred opinion is that women recite shemoneh esrei twice each day. The standard blackletter law work on this topic states "Women are obligated -- according to most authorities -- to recite shemoneh esrei both shaharit and minhah."(2)

However, the second section, where Hauptman discusses the possibility of women as communal prayer leaders, is mistaken on matters of basic Jewish law. It assumes that because women are generally obligated to pray, they can fulfill the role of shaliah zibbur/cantor in communal prayer. This is incorrect according to classical Jewish law, as it misses the crucial role of minyan/quorum which is required for communal prayer with a shaliah/zibbur/cantor serving as a leader.

II. Communal Prayer and Women

Communal prayer is a rabbinic obligation which is a time-based positive commandment. Women are not obligated in communal prayer under any circumstances according to Jewish law and, thus, do not count in the minyan/quorum required for that purpose; see Rabbi J. Karo, Beit Yosef, commenting in Tur, O.H. 55 and Shulhan Arukh O.H. 55, which state that "one cannot say kaddish with less than ten adult free males, and the same is true for kedusha and barkhu." Men are obligated to (at least) insure the presence of communal prayer with a minyan/quorum, and to themselves pray with a minyan/quorum whenever possible.(3)

While there is some discussion in Jewish law as to whether a woman can ever count in a minyan, it is clear that the overwhelming majority opinion -- with only one dissent in the early authorities (rishonim), and none in the later authorities (ahronim) -- rules that women do not count in a quorum/minyan, even for the tenth person and even in a time of need. Rabbis Karo and Isserless express this clearly when they state(4) that the practice is never to count a woman to the quorum for prayer. Even the single early authority (Rabbenu Simhah) who disagrees, appears to limit his permissive rule to a single woman.(5)

Indeed, one might ask why are women not exempt from prayer generally, as it is time-based. The Talmud(6) itself replies by stating that prayer -- even though it has certain characteristics of a time-based commandment -- is not considered one, since prayer is our beseeching God for mercy, which all should do. As noted above, Jewish law distinguishes between prayer, which all are obligated in, and communal prayer, from which women are exempt.

Undoubtedly, the rationale for exempting women from any obligation to communal prayer is related to the general exemption given to women for time-based positive commandments. As Hauptman correctly notes, Jewish law rules that people who are not equally obligated cannot fulfill the obligation for others. Thus, it is clear that women are not obligated in communal prayer, do not count in the quorum for communal prayer, and cannot lead communal prayer.(7) This rule, and its implications, was not mentioned by Hauptman. Any discussion of women as prayer leaders, without a discussion of minyan/quorum and who counts in it, is incomplete. Indeed, it is clear that there are a number of people (besides women) who are fully obligated in daily prayer generally but yet do not count towards the quorum.(8)

The discussion of the person whose beard does not grow in, referred to by Hauptman as perhaps precedent for women as communal prayer leaders, is an erroneous analogy, as that person is fully obligated in communal prayer and counts in the quorum, unlike women. The concept of "community honor" (kavod hazibbur) employed to discourage the unbearded person from leading services plays no role in the reason why women cannot be leaders in community prayer. "Community honor" is relevant only once the person is fully obligated (like the unbearded man, and unlike the woman who is not obligated in communal prayer).(9)

The corollary of this principle is well known: In situations where women do count in the minyan/quorum, they should be able to fulfill the obligation for others as a leader. This is, in fact, widely discussed in halakhah concerning the rules for the reading of the megillah on Purim. Some authorities rule that a woman can read a megillah for men because their obligation is identical, and that women count in the minyan/quorum needed to recite the final blessing at megillah reading.(10) Additional examples of this phenomena abound: for example, Rabbi Joseph Engel rules that the quorum/minyan required for public martyrdom needs not ten men, but ten adult Jews, as women, too, are fully obligated in the sanctification of God's name.(11)

Furthermore, the crucial role of minyan/quorum in the amidah prayer (the "Eighteen Benedictions" said three times daily) is compounded by the fact that shemoneh esrei is an exception to the general rule of rabbinic jurisprudence that one can fulfill one's obligations to recite any given prayer or text by listening to that prayer when it is recited by another who is equally obligated. This general rule allows one not to recite kiddush on Friday night oneself, and makes it acceptable to listen to another recite it and answer "amen." (Thus, since men and women's obligation is the same for kiddish, a women can fulfill this obligation for a man.(12)) However, minyan/quorum is so important for shemoneh esrei that, according to most authorities, when it comes to that prayer one cannot fulfill one's obligation to pray by merely listening to another recite the prayer and answering "amen" -- unless a minyan/quorum is present.(13)

Minyan/quorum is thus a sine qua non requirement for fulfilling one's obligation of shemoneh esrei without actually saying the words. Hauptman's references to the general rule of fulfilling one's obligation through another, and her application of these rules to shemoneh esrei, is misplaced, since shemoneh esrei is an exception to the rule and needs a minyan/quorum in order to fulfill the obligation of those who do not actually pray.

Thus, the crucial issue in women's inability to be communal prayer leaders is the role of minyan/quorum in communal prayer and who is obligated in communal prayer. That discussion is missing from Hauptman's article.

III. Communal Prayer and Women in Recent Discussions

One who reviews the literature produced in the early 1970s, both supporting and criticizing the decision by the Conservative Rabbinical Assembly to count women in a minyan/quorum, sees clearly that the issue of women as prayer leaders is the same as the issue of women counting in a minyan/quorum; and the proper question is, "are women obligated in public or communal prayer?" Indeed, the numerous papers produced on that topic all focused on precisely that issue. For example, Moshe Meiselman states that "Women are not required to participate in public prayer and hence cannot lead public prayer."(14) David Feldman, writing in Conservative Judaism, states that "The ordinary minyan for daily prayer is made up of ten people who share the obligation of public prayer...Women are exempt from [public prayer]...since [it is a] time based affirmative commandment."(15) So too, Rabbi J. David Bleich recounts that "while there is no lack of halakhic authorities who maintain that women are obligated to recite the amidah [shemoneh esrei] twice daily (shaharit and minhah), no halakhic authority maintains that women are obligated to pray with a minyan."(16)

Even Philip Sigal, the author of the responsum adopted by Conservative Judaism which allowed women to be counted in a minyan/quorum, recognized that the crucial issue is women's obligation in public prayer. He states, writing in Conservative Judaism and Jewish Law, that "a woman is obligated to public worship...when one is obligated one can contribute to the public fulfilling its obligation."(17) While it is clear to the author that Sigal is in error as to the presence of an obligation upon women to participate in public communal prayer according to classical Jewish law (there is no such obligation(18)), he clearly understood that, in order to allow women to be prayer leaders or count in a minyan/quorum, one must show that women are obligated in public prayer. Whatever the merits of Sigal's piece,(19) at least the right question was posed -- women's obligation to public prayer -- something which was not done in Hauptman's article.

IV. Change in Jewish Law

Hauptman's final comments about Jewish practices affected by social change is completely inapplicable to the case of women leading communal prayer, as each of the cases she cites involves only a change in custom or a change in the facts. They do not involve a change in the legal rules used. As I have noted in a prior article in JUDAISM, it is important to:

...distinguish between changes in the principles used by halacha and differences in results provided by halacha to questions based on novel social or technological situations. Few would deny that halacha's response to any given question depends on the factual reality of the times...Different decisions frequently result from the consistent application of fixed principles to dissimilar settings.(20)

Changes in facts or customs, which can be shown to have occurred, by no means provide the historical precedent needed to justify the broad systemic legal changes needed for women to function as a cantor/shaliah zibbur as suggested by Hauptman. That change would require an alteration in the legal principles used. Such a legal transformation cannot be supported by historical reference to changes in social custom or facts.(21)

V. Conclusion

In sum, the crucial issue in the question of whether women can lead communal prayer is: are women obligated in public prayer. The presence of a woman's private obligation to pray is irrelevant to this issue.

One who looks in the rules of prayer found in Orah Hayyim (O.H.) chapter 106, for a discussion of women's obligation according to Jewish law to pray, finds that women are obligated to pray every day. One who looks further in chapter 106 for a discussion of women's role in communal prayer could come to a mistaken -- but reasonable sounding -- answer, that women are obligated in communal prayer, since who is obligated in public prayer and who counts in a minyan/quorum is not discussed in this chapter, and thus it might appear that women's and men's obligations are identical. This is mistaken. The right place to look is O.H. chapter 55, and the right answer is that women are not obligated in public prayer, do not count in the prayer quorum/minyan needed for communal prayer, and thus cannot be prayer leaders for communal prayer since they are not obligated in such prayer.

I suppose that there can be many possible "justifications" given for the common practice of synagogues which allow women to function as communal prayer leaders. None of them, however, are of any merit within classical Jewish law, as women -- even as they are obligated to pray every day and according to many authorities twice a day -- are not obligated in communal prayer, do not count in the quorum required for it, and thus cannot lead communal prayer. Hauptman's assertion that, but for the notion of communal honor, classical Jewish law would allow women to lead public prayer services with a quorum/minyan, is simply incorrect.(*)

NOTES

(1.)As a matter of sociology, I doubt the correctness of Hauptman's initial assertion that "Orthodox women find this perceived exemption [from daily prayer! a useful rationale for not praying daily." I suspect that most Orthodox women who are the product of the Orthodox day school network do, in fact, pray every day (the more recently one graduated, the greater the likelihood). I would, however, wager that the overwhelming majority of women (and for that matter, men -- although that is a different topic) who affiliate with the Conservative movement (to which Hauptman belongs) do not pray every day.

(2.)R. Yizhak Pokas, Tefilah Kehilkhata 1:8. The minority opinions referred to in this work are not that opinion mentioned by Hauptman which excuses women from any formal prayer, but rather the opinions of various Sefardic authorities who require that women recite either one shemoneh esrei, or all of them.

One small omission is found in the first section of Hauptman's piece. In her summary of the various opinions of the early commentaries concerning whether prayer is Biblical or rabbinic in origin, she misstates the opinion of Nahmanides. Nahmanides does not rule that all prayer is rabbinic; he states that prayer is Biblically mandated in times of trouble, and in all other times is rabbinically mandated; see Commentary of Nahmanides on Maimonides, Sefer Hamizvot 5.

(3.)Tefilah Kehilkhata 8:4, which clearly states that women are not obligated in communal prayer; such statements are also found in Responsa Shevuot Ya'akov O.H. 3 and Teshuvot Me'ahavah 2:229; see generally Tur and Shulhan Arukh O.H. [sections]90 for a discussion of the parameters of the obligation to pray with a minyan.

(4.)See Beit Yosef O.H. 55, s.v. "vekatuv b'Mardekhai," Darkhai Moshe HeArukh O.H. 55(3). Indeed, Rama faithfully excludes this possibility from his glosses on Shulhan Arukh O.H. 55:4.

(5.)Rabbenu Simhah is cited in the Talmudic commentary of Mordecai ben Hillel (the Mordecai), Berakhot 173. Indeed, an examination of even Rabbenu Simhaha's rationale for counting women in a minyan/quorum underscores the complete absence of relationship between obligation to pray privately and counting in a minyan/quorum according to normative halakhah. Rabbenu Simhah's ruling is an extension of the minority talmudic opinion of Rabbi Yehoshua ben Levi that a single slave can also count in a minyan even though he is not obligated in public prayer. Rabbenu Tam accepted as a matter of theory the opinion of Rabbi Yehoshua ben Levi as one which one can rely on in a time of need (although he would not follow it as a matter of practice); most authorities disagree and require ten adult free males; see Tur O.H. 55:3 and comments of Beit Yosef. Rabbenu Simhah extended the minority opinion of Rabbenu Tam: if a minor or slave can count for the tenth -- even though not obligated in public prayer -- so can a woman. Indeed, halakhah rejects both of these rules. See generally Encyclopedia Talmudit, s.v. Davar Shebikedushah 6:714. Rama cites some authorities who might allow a minor male child to count in a minyan; the case of a minor differs from that of a woman because of the rabbinic commandment to teach minors to perform mizvot that they will later have to do as adults.

(6.)Berakhot 20b.

(7.)See Margaliot Hayam, Sanhedrin 74b (7)-(27), who explicitly adopts this formulation of the relationship between obligation and counting in a quorum, as does Responsa Divrei Yissakhar 2 and Sdai Hemed, ma'arakhet gimel #67. Indeed, were there to be a commandment in which a non-Jew was fully obligated, and which required a minyan/quorum to fulfill it, the Gentile would count to the quorum; see Sanhedrin 74b and sources cited in Margoliot Hayam, ad locum, for one such example where some assert that the quorum required for sanctification of God's name may include even Gentiles who are not idol-worshipers.

(8.)One example is the person who has been excommunicated for public sinning; see Shulhan Arukh O.H. 55:12. This, too, is the issue in Grace After Meals. It is certainly true that, according to those authorities who rule that women are Biblically obligated in Grace After Meals, women can fulfill the obligation for men by reciting Grace out loud; that does not necessarily mean, however, that they count in the quorum needed for zimun, communal Grace.

(9.)This discussion is, however, relevant to the issue of women receiving aliyot or women functioning as ba'alei k'riah. For a discussion of that issue, see O.H. 282:3 and particularly comments of Rabbis Gumbiner (Magen Avraham) and Kagan (Mishnah Berurah) on women's obligation to hear Torah reading and the concept of kavod hazibbur; see also the Mordecai, Halakhot Ketanot 968-9 for a discussion of that concept in a different context. This issue is completely unrelated to women as cantors, because the nature of a woman's obligation concerning Torah reading and being called to the Torah is different from the issue of women's obligation in communal prayer and being a cantor (a point glossed over in the article); see She'elat Yavez 1:79.

(10.)See Rabbenu Nissim (RaN) Megillah 2b and 6b, and Shulhan Arukh O.H. 689:1. Indeed, no less an authority than Rabbi Ovadia Yosef rules that ten women reading megillah without any men present can recite the final blessing which can only be recited when a minyan/quorum is present; see Yalkut Yosef 5:286; Yabi'a Omer 1:44; Yehave Da'at 1:88.

(11.)Gilyonai Hashas, Sanhedrin 74b; but see Minhat Hinukh 296 who disagrees, and comments of Rabbi J.D. Bleich, infra note 14 at 82-83, who suggests an alternative rationale for who counts in a quorum and what is a quorum.

(12.)Shulhan Arukh O.H. 271:2. Rabbi Joseph B. Soloveitchik recounted, in a response to a halakhah l'ma'aseh question, in a public lecture at Yeshiva University on November 6, 1984, that a woman can -- without any hesitation -- recite kiddush even for a large group of people (men and women) in any circumstance, and that this was completely permissible, (mutar le'hathila) since no minyan/quorum is required for this act and therefore the group is not considered a zibbur that need be concerned with its honor. For a contrary opinion see Mishnah Berurah 271:4; however, the position of Rabbi Soloveitchik it implicitly endorsed by Rabbi Neuwirth writing in Shemirat Shabbat Kehilkhata 47:6, who does not quote the limitation of Mishnah Berhurah. For a discussion of this issue, see Rabbi Howard Jachter, "The Difference Between the Category 'Tzibbur' and the Category 'Many,' Beit Yizhak 22:301-304.

(13.)Shulhan Arukh O.H. 594. Even Rama, who argues with this rule, states that only a person who cannot pray (even in English) may fulfill the obligation by listening to another recite the prayer aloud when no minyan is present. Even this is limited to she'at hadehak, "a time of emergency."

(14.)Jewish Women and Jewish Law (Hoboken: KTAV, 1978), p. 136.

(15.)David Feldman, "Woman's Role and Jewish Law," Conservative Judaism 26:4, 29, 36 (1972).

(16.)J. David Bleich, Contemporary Halakhic Problems I: 78, 81.

(17.)Conservative Judaism and Jewish Law, ed. Seymour Seigel, p. 287, published also as Philip Sigal, "Women in a Prayer Quorum," Judaism, 24:175 (1974).

(18.)See quotation from Rabbi Bleich, cited supra.

(19.)As a general matter, Sigal errs in two ways. He does not prove that women are obligated in public prayer, and he focuses on the opinion of Rabbenu Simcha discussed in section I to demonstrate that a minority opinion does exist which recognizes that women in fact do count in the quorum needed for public prayer and are in fact obligated in public prayer. However, Sigal's article relies on very weak interpretations of marginal authorities within Jewish law. For a detailed reply to Sigal's piece, see sources cited in notes 12, 13, and 14.

(20.)"Tradition, Modesty and America," JUDAISM 40:79-87 (1991). Hauptman cites three examples of change in note 29 of her article (women studying Jewish law; women being a sandek and who is a heresh [deaf-mute]) which she indicates "demonstrate" change in legal practices analogous to the change required to allow women to be communal prayer leaders. In fact, none of the examples cited prove this point. In no classical works is it recorded that it is prohibited for a woman to study oral law (see Maimonides, Laws of Torah Study 1:13); however, the custom, sanctioned by the rabbis, developed for them not to. That was changed by Mishnah Berurah in his famous letter approving of the Beis Ya'akov movement. So too, the whole institution of sandek is merely a custom and can (and does) change in response to differing social circumstances. The analysis of change in status of the deafmute as a change in halakhah is completely incorrect. A careful reading of Rabbi Bleich's article (Contemporary Halakhic Problems 2:368, cited by Hauptman) reveals that those authorities who recognize that a deaf-mute who is educated and capable of communicating is not considered a heresh do so because they accept that the status of a heresh is related to educability or functionality. No change in legal principle is advanced. New applications based on new technology is not a new rule.

(21.)This does not mean that the substantive legal rules never change. While post-talmudic change of substantive rules is very rare, there clearly are examples; see, e.g., Even Ha'ezer 1:21 (comments of Rama). In addition, it is clear that even a completely halakhic society reserves the right to rely on minority opinions within Jewish law. For more on that topic, see "Tradition, Modesty and America," JUDAISM 40:79-87 (1991).

(*)Indeed, Hauptman's analysis of gender based talmudic rules is sometimes textually erroneous also. For example, Hauptman's explanation of Berakhot 20b's curse on a man who allows another to fulfill his obligation to recite Grace After Meals, involves both a misquotation of a talmudic source and a misinterpretation of it. Hauptman states:

A tannatic source appearing in the Babylonian Talmud, in conjunction with Mishnah Berakhot 3:3, provides some insight: "A women may recite Grace for her husband...but a curse alights on any man who allows his wife to do so" (20b). Since other sources make perfectly clear that one man may recite Grace for another, the explanation of the braita's use of the curse metaphor regarding a woman's inability to recite Grace for a man -- even though she herself is obligated -- seems to be that, in addition to obligation, a person needs social status in order to qualify as a prayer leader.

The Talmudic source is misquoted. It states: "A son may recite Grace for his father, a slave may recite Grace for his master, a woman may recite Grace for her husband, but the Sages stated that a curse alights on any man who allows his children or wife to do so." It is clear from the talmudic text -- and particularly from the words "his children" left out by Hauptman without any ellipses -- that the Talmud is cursing a man because he is incapable of fulfilling his own ritual obligation and needs to rely on others, even in the privacy of his own home, to fulfill the obligation; indeed, he is cursed even when he uses his adult male sons to fulfill his obligation. No curse is placed on "a woman's inability to recite grace for a man" -- it is a man's relying on others in his household to fulfill his own obligation that is abhorred. The statement by Hauptman, derived from this source, that "in the tannatic period, social status is defined by gender" can only be supported through the deletion of the words "his children" from the Talmud text.

Others accept that this text is only legally correct if the man did not eat until he is satiated, in which case no Biblical obligation is present, and women, children, and salves who are excused from Grace according to Biblical law then can fulfill the obligation; see Rambam, Laws of Blessings 5:15-17 and comments of Ravad. However, Hauptman, who interprets this text according to those who rule that women and salves are Biblically obligated (and would thus assert that "children" refers to "adult children") cannot adopt that posture. Whatever precise case the Talmud is referring to, it is completely clear that the curse is unrelated to gender, and is directed as a criticism of those who are ritually crippled and must rely on others for their basic liturgical needs.

JOEL B. WOLOWELSKY reacts to Judith Hauptman

Judith Hauptman's "Women and Prayer" (JUDAISM, 42:1, Winter 1993) is a welcome contribution to the contemporary discussion on women's increased involvement in traditional Jewish life. Rather than simply debate how the tradition should accommodate contemporary perspectives on Jewish women, she reexamines the tradition, finding heretofore unstressed emphases. More power to her.

Not everyone might accept Hauptman's interpretation of each and every source. But one need not challenge her conclusion that men and women share the same obligation in daily prayer to realize that, despite her implied argument to the contrary in her second section, she has not yet provided enough material to build a responsum allowing a woman to serve as a sheliah zibbur. Hauptman's argument might justify a group of men or women who cannot themselves say the Amidah to appoint a woman to say the tefilah and fulfill their own obligation to pray through her action. But that is a far cry from justifying her serving as a sheliah zibbur.

To complete her argument, she would have to also discuss the sheliah zibbur's role in relation to the Shema. She concedes that men and women have unequal obligations in Shema. But, for example, Rav Henkin points out that the sheliah zibbur must say the berakhah "ga-al Yisrael" aloud "because the Sages established that the sheliah zibbur must pray aloud from [the berakhah] "Yozer" until the end of the Shemoneh Esrei "in order to fulfill the obligation of those who cannot [do so themselves]." (As a practical matter, he continues, he may say only the beginning and end of the berakhot aloud.) (Kitvei haGaon Rabbi Yosef Elihu Henkin: Ediut leYisrael, vol. 1, p. 161.) This certainly complicates her case.

Moreover, a sheliah zibbur does more than recite the prayers for those who cannot. One need not look past a daily occurrence to see that this is the case. Even when all present have fulfilled their personal obligation to say the tefilah, the sheliah zibbur repeats the Amidah. Clearly something additional that relates to the zibbur is at hand.

Hauptman would have to examine this phenomenon and explain it. She would have to discuss whether men and women have the same obligation in tefilah bezibbur (not just in tefilah), and investigate whether they have the same ability to form a zibbur. If their respective abilities to form a zibbur differ -- and that seems to be the case -- she would have to examine if men and women have the same responsibilities once the zibbur is formed.

These lacunae in her presentation make the interesting observations in her second section intriguing but as yet not particularly relevant. It may be true that a man without a beard now meets the requirements of kavod hazibbur even though that was not the case years ago. But even if we were willing to concede her argument that a parallel analysis exists for women -- that they now meet the requirements of kavod hazibbur even though they once did not -- we could not reach her suggested conclusion that a woman might now qualify as sheliah zibbur. The beardless adult male apparently has, in her view, only one impediment to his acting as sheliah zibbur: the standards of kavod hazibbur. The adult woman, as we noted, might have other disqualifications besides kavod hazibbur. Addressing the latter impediment without first ruling out the other possibilities leaves the woman still disqualified to act as sheliah zibbur.

This is not to suggest that Hauptman cannot address these and other related issues. Indeed, I for one look forward to her analyses. But until she does, we are left only with a welcome reminder that women, too, have a serious obligation in daily prayer. And that, in and of itself, is a valuable contribution.

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Gale Document Number: GALE|A14873597