Avodah Mailing List

Volume 06 : Number 072

Tuesday, December 19 2000

• The Principle of Habituation
• The Principle of Habituation (a reply to an review)

The Principle of Habituation
      Rabbi Yehuda Henkin

One of the offshoots of contemporary preoccupation with sex is the
tendency to read sexual considerations into halachot where they don't
belong. Two examples come readily to mind. Rabbi Moshe Meiselman, in
his book Jewish Woman in Jewish Law, explains the beraita in Megillah
23a, "…the Sages said, a woman may not read the Torah because of kavod
hatzibur," as referring to the probability that a woman reader would
arouse impure thoughts in the listening males. He offers no source
for such a contention, and he is almost certainly in error, as none of
the other Talmudic references to kavod tzibur has the slightest sexual
context. Rather, as Petach haDvir explains, kavod hatzibur as regards
women's Torah readings refers to the damage to a community's good name
caused by relying on the services of woman readers, for this gives the
impression that there are not enough men competent to read themselves.

Sefer haMeorot is explicit that kavod hatzibur as regards women's aliyot
does not mean sexual distraction: "That we which say, 'a woman may
not read the Torah because of kavod hatzibur' - the reason is kavod
hatzibur, but there is no pritzuta (licentiousness)." Furthermore,
Maharam Rottenberg rules that in a town where all the males are
kohanim, they read the first two aliyot. and all the other aliyot are
read by women. His reason is that "where there is no alternative, [the
consideration of] kavod hatzibur is pushed aside"; i. e., if the kohanim
would read the portions normally reserved for non-kohanim, people might
think that they were disqualified (p'gam) from the priesthood. Therefore,
women should read in their place. Such a ruling is inconceivable if
the meaning of kavod hatzibur is impure thoughts - better not to have
the Torah read at all.

Proof that kavod hatzibur as regards women's readings is a matter of an
invidious contrast between literate women and seemingly illiterate men,
on the other hand, comes from the rishonim's linking of women's reading
the Torah in the synagogue and m'eirah. M'eirah (evil) is the imprecation
inveighed in the beraita in Berachot 20b and Sukkah 38a against someone
who neglects to learn the text of birkat hamazon himself, and remains
dependent on others:

They clearly stated, a son blesses [birkat hamazon] on behalf of his
father, and a slave on behalf of his master, and a women on behalf of
her husband. But the Sages said, let m'eirah come upon a man whose wife
and children bless on his behalf.

R. Avraham Min Hahar, in his commentary to Megillah 19b, writes concerning
a woman reading the Purim megillah for men:

Certainly, lechatchilah she should not fulfill men's responsibility [by
reading the megillah for them], as is stated in [Berachot], " let there
come m'eirah upon a man whose wife and children bless on his behalf."
And it is stated in [Megillah] "Everyone is counted towards the quota of
people who read the Torah, even a women or a minor, but the Sages said,
'a woman may not read the Torah because of kavod hatzibur.' "

Similarly, the Ritva writes in Megillah 4a that, although from a technical
Halachic standpoint women can read the Purim megillah for men, "it is
not kevod hatzibur, and they are in the category of m'eirah." R. Avraham
Min Hahar and the Ritva equate women's reading the megillah for men with
their reading the Torah for men (kavod hatzibur), which in turn they
compare to husbands relying on their wives or children to recite birkat
hamazon (m'eirah). The common denominator is that it is not kavod for
men to be incompetent to read the texts themselves or to be perceived
as incompetent; impure thoughts (hirhur) are not mentioned at all.

A second unwarranted claim of sexual distraction as the grounds for
a halacha can be found in an article by R. Aharon Feldman in a recent
issue of Tradition. He writes,

Even though there are opinions which permit women to recite kaddish in
private prayer groups, these do not permit kaddish in the synagogue. The
obvious reason for this, as explicitly stated by one rabbinic authority,
is once again that men are easily distracted sexually by women, a fact
which might affect their concentration on the prayers.

Now, it should be obvious that from the standpoint of hirhur during
prayers, there is no difference between private and public prayer, and
in fact the Mateh Efraim, who presumably is the authority referred to by
R. Feldman, in his Elef Lamateh prohibits a woman from raising her voice
in kaddish or any other prayer, whenever and wherever men are present:

It is probable that she will try to prettify her voice (levisumi
kala), and we say 'if women sing (zamrei nashei) and men respond -
it is licentiousness'"(Sotah 48a)….It is worthy and proper that every
respectable woman who fears G-d, whether married or single, not make
her voice heard where there is [any] man. Only her lips should move [in
prayer] but her voice should not be heard at all, lest the man who hears
[her] be brought to hirhur…for she has to guard lest she be a stumbling-
block for people.

This would, perforce, equally apply to women's aliyot, to women's zimmun,
and to women's reading the megillah - according to this chumrah all would
be forbidden in the presence of men, lest the woman's voice cause sexual
distraction. But such an approach is contradicted by the rishonim:

1) Maharam Rottenberg and the other rishonim who cite him, as well as
Sefer haMeorot, R. Avraham Min Hahar and the Ritva, ignore hirhur in
the case of women reading the Torah.
2) Ritva explicitly permits women to say zimmun and men to answer  and,
according to Bach, so does Ravad.
3) Rashi, Rambam, and many other rishonim permit women to read the Purim
megillah for men unconditionally,  ignoring hirhur, and even Halachot
Gedolot and most others who forbid it do so for reasons unconnected with
hirhur.

In the case of kaddish, the Chavot Yair, the first authority to address
the question of a woman saying kaddish, objected to it as undermining
established customs, but neither he nor any of the other 17th and 18th
century acharonim who refer to it mentions sexual distraction. In our
day, Igrot Mosheh permits women to occasionally say kaddish in a men's
bet hamidrash and writes that such has always been the custom ; he takes
no account of hirhur.

The custom of saying kaddish in unison with other mourners is an
additional factor. Elsewhere I have expanded on the ruling of my
grandfather, R. Yosef Eliyahu Henkin ztz"l, permitting women to recite
kaddish from the ezrat nashim together with male mourners, and buttressed
his cogent historical argument that in the time of the Chavot Yair, et
al, Ashkenazi custom was that only one mourner said kaddish at a time;
in such circumstances, it was objectionable for a woman to be the one
person reciting kaddish. That was still the custom when Mateh Efraim
was published in 1835, and that is what Mateh Efraim is describing when
he writes "certainly it is forbidden, chalilah, for her to make her
voice heard to the many (lehashmiya kolah lerabim) in kaddish, whether
in the synagogue or in a [private] minyan." Ashkenazi custom began to
change to its current form of saying kaddish in unison only in the mid-
to late-nineteenth century.

It should be obvious that my grandfather, Igrot Mosheh, and others are
not that saying that the hirhur caused by a woman reciting kaddish is
irrelevant. They are saying that a woman reciting kaddish, depending on
the circumstances, does not cause hirhur at all, and that therefore other
issues can be addressed. This is a metziut question, and it will not do
for R. Feldman and others to simply quote the Mateh Efraim. The question
which has to be asked is, does a woman saying the kaddish today really
cause impure thoughts and sexual distraction among men? Where the answer
is "yes" or "probably," one cannot rely on any heter in practice. In
most communities, however, the answer is "no" or "very unlikely."

One reason women's kaddish is not a source of sexual distraction in
many of our communities - aside from fact that kol b'ishah ervah does
not apply when kaddish is only spoken, and doubtfully applies even when
chanted - is that we are inured to much worse. Inurement, or habituation,
plays a definite although often overlooked role in the development of
Halacha. Its most trenchant expression is found in the Yam Shel Shlomoh
of R. Shlomo Luria, also known as the Maharshal, to Kiddushin (4:25):

Everything depends on what a person sees, and [if he] controls his
impulses and can overcome them he is permitted to speak to and look at
an ervah (a women forbidden to him) and inquire about her welfare. The
whole world relies on this in using the services of and speaking to and
looking at women.

Maharshal refers first to the individual, who may not go beyond what the
Talmud permits in matters of hirhur unless he has extraordinary strengths
and qualities, but concludes with the community: when the community (the
"whole world") is accustomed to mingling with and speaking to women,
their familiarity may be relied on to forestall sinful thoughts. The
source for this distinction is the Tosafot in Kiddushin (82a). In the
Gemara, "hakol l'shem shamayim" ("all in the name of heaven") is used by
R. Acha bar Ada to explain the special liberty he alone took in taking
his betrothed granddaughter on his lap, but Tosafot write, "On [hakol
l'shem shamayim] we rely nowadays [in] that we make use of the services of
[married] women." The Tosafot employ this principle to justify widespread
practices. This is precisely the equation employed by the Maharshal.

To prevent any mistake, it is important to be absolutely clear about
which activities are subject to the mitigating effects of inurement
and which are not. Habituation is an argument for permitting activities
which are innocent in and by themselves, such as those mentioned by the
Maharshal: speaking with women and looking at women's faces, and many
everyday social and commercial activities which involve intermingling
of the sexes. It is not an argument for permitting activities that have
explicit or implicit sexual content, in which case hirhur is inevitable.
Mixed swimming, especially by the scantily clad, is one example. Another
is mixed dancing, particularly the discotheque variety. Two youngsters
doing the twist are not an acceptable couple even if they never touch.

Besides Tosafot, another use by a rishon of the principle of habituation
is apparently found in the 15th century Leket Yosher, in the name of
his teacher, the Trumat HaDeshen:

He said that it is permitted to walk behind of the wife of a chaver
or behind his mother, because nowadays we are not all that prohibited
(ein anu muzharin kal kach) from walking behind a woman.

Walking behind a woman is proscribed by the Talmud in Berachot 61a,
and what is the meaning of "nowadays we are not all that prohibited"? It
means that although the Talmud forbade men from walking behind a woman
lest it cause hirhur, nowadays women go everywhere and we are used to
walking in back of them and so no hirhur results.

Among other acharonim besides the Maharshal, the clearest use of the
principle that habituation forestalls hirhur is found in the Levush
written by the Maharshal's student, R. Mordechai Yafeh. It is customary
to add the phrase shehasimchah b'meono, "in Whose abode is happiness"
in zimun at the festive meals following a wedding; however, the 13th
century Sefer Chassidim specifically excludes feasts "where women sit
among the men, hirhur being present." The Levush writes on this issue at
the end of his Minhagim that "We do not take care about [avoiding] mixed
seating because nowadays women are very common among men, and there are
relatively few sinful thoughts [about them] because they seem to us like
'white geese' due to the frequency of their being among us...." This is
identical to the approach found in the Yam Shel Shlomoh, and indeed,
shehasimchah b'meono is today universally recited even in communities
where there is mixed seating at sheva berachot.

In recent times, the principle of habituation has been employed by the
Aruch HaShulchan, R. Yechiel Michel Epstein. One of the things that
prevent a man from reciting the Shema is viewing the uncovered hair of
a married woman. Nevertheless, the Aruch haShulchan (Orach Chayim 75:7)
writes:

For many years Jewish women have been flagrant in this sin and go
bareheaded...married women go about with [uncovered] hair like girls
-- woe to us that this has occurred in our day. Nonetheless, by law it
would appear that we are allowed to pray and say blessings facing their
uncovered heads, since the majority go about this way and it has become
like [normally] uncovered parts of her body, as the Mordechai wrote in
the name of Ravyah, "all the things we have mentioned as being ervah
[are] only in what is normally covered" ....

That is to say, although it remains forbidden for married women to go
bareheaded in public, because they do so regardless their hair is no
longer an impediment to a man's reading the Shema. Since men are used
to seeing it, women's hair no longer causes hirhur.

All this complicates the task of a posek: in a number of areas of tzniut
and interaction between men and women there are not always fixed rules,
and he may have to employ knowledge of the community, psychology, and
sociology (which poskim have always employed, long before the social
sciences were given names) to determine what is permissible and what
is not for a particular tzibur. A recent writer for the Jewish Observer
found it impossible to accept that in the strictly Orthodox Germanic-Dutch
(Yekkishe) communities before the Holocaust and in their remnants around
the world afterwards, mixed seating at weddings and other social events,
mixed Torah shiurim, and even mixed handshakes were the norm.

Certainly, what was acceptable there is not necessarily acceptable
elsewhere, and certainly, the principle of habituation has the potential
of being abused and misused by the irresponsible. Applying it to Halachot
that exist independently of hirhur, such as head-covering by married
women or the requirement of a mechitzah in the synagogue, is abuse and
misuse, not to mention titillating literature or entertainment. But in
that there is nothing new.

Notes

1 P. 142.

2 See Yoma 70a, Megillah 23b, Gittin 60a, and Sotah 39b.

3 Petach Hadevir 282:9. For this reason R. Yaakov Emden, in his Hagahot
to Megillah 23a, writes that women may be called to read if in fact there
are not enough males who can read. In such a situation, the community's
repute suffers whether women read or not; better, then, to have women
read than to forgo the Torah reading altogether.
      This explanation nicely parallels the usage of kavod hatzibur
found in Gittin 60a, "One does not read the Torah in the synagogue from
chumashim, because of kavod hatzibur," i.e., use of a scroll of a single
book of the Torah such as Bereishit, Shemot, etc. is prohibited because
here, too, a blot on the reputation of the community would result from
the impression that the synagogue was unable to afford, or uninterested
in obtaining, a complete scroll containing all Five Books of Moses. On
this and other aspects of kavod hatzibur, mechilah of kavod hatzibur,
etc., see my Resp. Bnei Banim, II, nos. 10-11.

4 Sefer haMeorot to Berachot 45a.

5 Resp. Maharam Rottenberg, Prague edition, no. 108; Mordechai to Gittin,
remez 404; Rabbeinu Yerucham 2:3. Maharam's ruling is not codified for
extraneous reasons but his reasoning is not challenged; see Bet Yosef,
Orach Chayim 135.

6 Tradition, winter 1999 (33:2), p. 71. The article, "Halakhic Feminism
or Feminist Halakha?" is an unremittingly negative review of the book
"Jewish Legal Writings by Women." Remarkably, however, R. Feldman
passes over what is the book's most objectionable feature: the strident
and occasionally insulting tone of a few of the articles. Particularly
egregious is the article "Artificial Insemination of an Unmarried Woman,"
one of three written in Hebrew. It describes rabbis who object to use of
non-Jewish sperm to father Jewish babies as being racists, and dismisses
those who are concerned lest the availability of such insemination serve
as a cover-up for promiscuity, by curtly (and irrelevantly) quoting the
Talmudic dictum "kal haposel, b'mumo posel." (!)

7 Mateh Efraim and Elef Lamateh, Dinei Kaddish Yatom 4:8, and see below,
notes 16-17. "It is worthy and proper…" is from Eliyah Rabah in the name
of Be'er Sheva.

8 Ritva, Hilchot Berachot 7:2.

9 Bayit Chadash to Orach Chayim 689. Both Ravad and Ritva view men and
women as equally commanded in birkat hamazon, which is not the accepted
Halacha, but this is irrelevant to their views on hirhur. On men answering
to women's zimmun, see Bnei Banim, III, no. 1.

10 Rashi to Erchin 3a; Sefer haMeorot, Riaz in Shaltei haGiborim, Ritva,
Meiri and Nimukei Yosef, all on Megillah 4a; Or Zarua, pt. 2, no. 368.
These rishonim state explicitly that women may read for men. Others
indicate this by quoting Megillah 4a or mentioning women's obligation to
read the megillah without qualification: see Rambam, Hilchot Megillah
1:1; Rif and Raban to Megillah 4a; Shibolei haLeket 198; Ohel Moed,
Dinei Megillah, p. 108.

11 Halachot Gedolot, Venice edition, p. 80; Tosafot in Erchin 3a;
Ravyah chap. 569; Mordechai to Megillah, remez 778; Sefer haNiyar;
Rosh, Sefer haAgudah and Ran (on the Rif), all to Megillah 4a; Rabbeinu
Yerucham 10:2.Their reason is that women are not as fully obligated in
the megillah reading as are men.
      Only Sefer haKolbo, chap. 45, and Orchot Chayim (both by the same
rishon), in the name of Sefer haItur, prohibit women from reading the
Purim megillah for men because of kol b'ishah ervah. This view could
be applied to zimmun because of the prevalence of drinking at meals,
see Sefer haMeorot to Megillah 19b, but not to kaddish; and see Bnei
Banim, II, no.10 and, in English, my book Equality Lost: Essays in Torah
Commentary, Halacha, and Jewish Thought (Urim, 1999), chap.7, and there
in note 14.

12 Resp. Chavot Yair, no. 222.

13 Resp. Igrot Mosheh, Orach Chayim, V, no. 12 (2).

14 Bnei Banim, II, no. 7, and III, no. 27, note, and Equality Lost,
chaps. 5-6.

16 When a woman says kaddish from behind the mechitzah, the only question
of tzniut is that of her voice. If she is among the men a new set of
questions arises, although even here, Igrot Mosheh seem unconcerned with
hirhur. My grandfather writes that although she should stand behind the
mechitzah, if (on occasion) during kaddish she pushes her way into the
men's section, as long as there are male mourners also saying kaddish
"we ignore it" (lo ichpat lan); see Teshuvot Ivra (Kitvei haGri"a Henkin,
vol. 2), no. 4 (2). It should be noted that the language used there in
no. 4 (1) "b'fnei hanashim" does not indicate anything as to whether or
not her voice is audible in the men's section. On the question of a lone
woman in the ezrat gevarim, see Bnei Banim, I, no.4.

16 See Orach Chayim 75:3 and Magen Avraham sub-par. 6. This is Elef
Lamateh's meaning when he writes, "…even though kol b'ishah ervah
doesn't apply…."

17 Elef Lamateh continues, "Nevertheless, it is probable that she will
try to prettify her voice (levisumi kala), and we say 'if women sing
(zamrei nashei) and men respond - it is licentiousness'"(Sotah 48a). The
assumptions to be proved are that 1) chanting even if not actually
singing 2) the kaddish, even though it is a text of prayer, and 3)
even though the interchange is of short duration, with men responding
only "amen" and "yehei shemei rabba," still falls in the category of
forbidden song and response. Cf. Bnei Banim II, pp. 37-38 and III, no.
25 (2). It should be noted that even Mateh Efraim might agree that none
of this applies to women saying kaddish in unison with male mourners,
because of the principle trei koli lo mishtam'ei..

18 This is the subject of the well-known disagreement among rishonim
whether or not especially pious individuals in every generation may take
special liberties. See Equality Lost, chap. 9.

19 On the difference between looking and gazing (histaklut), see Shitah
Mekubetzet to Ketuvot 17a, and Yam Shel Shlomoh, Ketuvot 2:3 and Kiddushin
4:25, intro. Maharshal's position appears to be that a brief look at
a woman's face was always permitted, and habituation would permit even
lengthier gazing.

20 Modern, suggestive dancing and even ballroom dancing should not
be confused with the minuets and other stylized forms of previous
generations. On the dances mentioned in a few sources, see Bnei Banim,
I, no.37 (4-10).

21 Leket Yosher , sect. Yoreh Deah, p. 37.

22 R.Yehuda b. R. Binyamin (Riveva"n) in Berachot, and Resp. Radbaz, II,
no. 970. Rashi gives a different reason, but it does not easily fit the
words of the Leket Yosher.

23 Resp. Tzitz Eliezer, IX, no. 50 (3). In section (2) he suggests
an explanation for the difference implied in the Leket Yosher between
walking behind the wife or mother of a chaver and walking behind other
women. I have suggested that the difference is that the former can be
relied upon not to intentionally walk in a provocative manner; contrast
the daughter of R. Chananiah b. Tradion in Avodah Zarah 18a.

24 Par. 393.

25 The reference is to Ketuvot (17a) where R. Acha lifted a bride on his
shoulders at her wedding and danced with her, and justified himself by
saying that she was to him like "white geese," i. e., he had no untoward
thoughts. Perhaps he used this simile because it was common to bring
geese home from market over one's shoulders.

26 Maharshal himself, however, in Yam Shel Shelomoh to Ketuvot (1:20),
agrees with Sefer Chassidim on not saying shehasimchah b'meono where
there is mixed seating. The apparent contradiction between his words
in Kiddushin and Ketuvot can be explained by the merry nature of a
wedding feast that makes it more problematic regarding hirhur than
everyday occasions. An alternative explanation is that in Ketuvot,
Maharshal writes that the custom "in my country ...in most places" was
that men and women feasted in separate rooms at sheva berachot -- and
therefore he had no cause to justify mixed seating there -- as opposed
to the minhag recorded by the Levush. See below, n. 29.

27 Aruch haShulchan waives the impediment of a married woman's uncovered
hair as regards a man's reading Shema but forbids the act of going
bareheaded itself; the two are separate halachot stemming from two
completely separate Talmudic discussions, in Berachot 24a and Ketuvot
72a. The prohibition of a married woman going bare-headed in public
derived in Ketuvot is independent of whether her hair causes hirhur or
not.. On the Halachic parameters of women's hair covering today, see Bnei
Banim, III, nos. 21-24. On Aruch haShulchan's disagreement with Mishnah
Berurah on the issue of Shema and uncovered hair, see Bnei Banim, III,
no. 26 (6-7). On the relative authority of Aruch haShulchan vs. Mishnah
Berurah, see Bnei Banim, II, no. 8.

28 Levi Reisman, in the Jewish Observer, October 1998, p. 42. Reisman
insists that the Germanic communities' practices resulted from a
"lapse in observance" without Halachic sanction, and that their rabbis
disagreed but were powerless to object. Reading the Bet Meir in Even
haEzer 62 disproves the first assertion, and the second is countered by
the fact that rabbis of known piety organized mixed-seating weddings
for their children, as in the case of the wedding of R. Eli Munk, the
son of R. Azriel Munk of Berlin, to the daughter of the Hamburg Rav, a
leading posek and champion of the strictest Orthodoxy. While it is true
that these practices are dying out as the result of the destruction of
the home kehillot during the Holocaust, as recently as fifteen years ago
the rav of one of the major Yekkishe congregations in England arranged a
mixed-seating wedding for his daughter. I am grateful to the av bet din
of Amsterdam, Rabbi Aryeh Leib Lewis, for this information. The statement
by Reisman was part of a lengthy exchange between him and myself, only
part of which was printed by the Jewish Observer.

29 On seating at weddings and other occasions, see Bnei Banim, I, no. 35
and Otzar Haposkim (vol. 17), sect. 62:13, pp. 106-7.

30 See Bnei Banim, I, nos. 37 (7-11) and 39.

31 The requirement of separate seating is derived in Sukkah 52a from
Zechariah 12:12-14, which describes funerary orations where hirhur was
presumed to be negligible. Another source is the design of the Temple,
which distinguished between the Ezrat Yisrael and Ezrat Nashim. See, at
length, in B. Litwin, Sanctity of the Synagogue, and Bnei Banim, I, nos.
1-3 and 35, and for a different explanation, II, nos. 12-13.

Habituation and Halacha-a Reply

REPLY TO IKA D'AMRI, "Habituation: A Halachic Void with Risky
Implications" by Rabbi Emanuel Feldman, Tradition 34:3, Fall ?2000
By Rabbi Yehuda Herzl Henkin

The view R. Emanuel Feldman attributes to me, that "where men are
habituated to women, hirhur concerns are no longer an issue….One need
not be concerned with erotic thoughts nowadays as much as in previous
generations" is not what I wrote. Hirhur is still an issue and the amount
of sexual stimulation prevalent in today's society is even greater than in
previous ones; consequently, however, the threshold needed to evoke hirhur
is higher. For example, where women walk around in halter-tops or less,
a short-sleeved blouse is hardly provocative, and when pornography is
rampant, viewing a woman's face is not titillating. (This is not to say
that short-sleeves are permissible according to current norms of tzniut;
but see Bnei Banim, III, no. 26 [4]).

Although I was not shown R. Feldman's response in advance of publication,
he did tell me orally of his concern that the proverbial "synagogue
president in Peoria" might misconstrue my remarks as grounds to permit
anything from mixed dancing to doing away with a mechitzah in the
synagogue, and demand as much from his rabbi. I have every sympathy with
concerns of this sort, and I accordingly inserted a number of disclaimers,
as R. Feldman indicated. These did not allay his fears, and he writes:

1) "Could not R. Henkins's theory be applied to annul the laws of
yichud?" Certainly not. Yichud (which is independent of hirhur) is a
Torah prohibition, according to most opinions, and not susceptible to
modification. Even according to other opinions, it is at the least
a formal Rabbinical enactment, by an early Sanhedrin, and af al pi
shebateil hata'am, lo beteilah hatakanah.

2) So, too, concerning a mechitzah in the synagogue. Despite my
disclaimer, R. Feldman writes, "since the reason [for a mechitzah ]
is kalut rosh, what if… in his society there is no danger of this
happening…Could he not abrogate the need for a mechitzah?" But according
to Resp. Igrot Moshe, Orach Chayim, I, no. 39, the mechitzah in the
synagogue is a Torah requirement, and even according to my dissent in Bnei
Banim, I, no. 3, following Rashi, Meiri, and Maharsha, that mechitzah
is wholly a Rabbinical enactment (although the requirement for separate
seating is derived from the navi Zechariah), the same would apply as in
1) above.

There is little danger, then, that any posek (with or without quotation
marks) will do away with the mechitzah in the synagogue, but I will
note an additional reason. What I wrote refers to the accommodation of
already prevalent practices, and not to the introduction of new ones. I
made this point in my Equality Lost (p. 82):

There is no Halachic imperative to introduce mingling of the sexes where
it does not already exist. What we have said here… is not an agenda. It
is much easier to legitimize existing practice than to justify new ones.
To do the latter, we would have to take into account the approaches of
far more achronim than just the Yam shel Shelomoh, the Levush, and the
Aruch haShulchan.

What I wrote continues the venerable Halachic practice of limud zechut
and ex post facto justification of community practices, which then
become functionally lechatchilah. Limud zechut usually involves the
following elements: (1) an established or intractable practice (2)
seemingly at variance with Halacha, which is (3) practiced by essentially
Torah-observant communities and for which (4) some grounds or support can
indeed be found, even if optimally we would rule otherwise. Determining
when these conditions are met is the responsibility of the poskim on
the scene. They can be met in the case of increased mingling of the
sexes, as I illustrated by the case of the Germanic-Dutch Yekkishe
communities. They are not met in the case of abolishing the mechitzah,
for the simple historical reason that for some 200 years maintaining
a mechitzah has been a litmus test of membership in the Orthodox
community. Communities who adopted mixed pews have invariably gone
on to dispense with Halachic Judaism altogether. There is, therefore,
no fulfillment at least of condition (3), in addition to (4).

Lastly, R. Feldman invokes lo plug. But if lo plug applied, R. Acha
would not have lifted a bride on his shoulders and R. Gidel and R.
Yochanan would not have sat at the entrance to a ladies' mikveh, etc.,
nor could SeMaK, Meiri, and Ritva have permitted special individuals, even
after Talmudic times, to exempt themselves from many of the strictures
regarding hirhur. R. Feldman is mistaken in his sweeping assertion
that lo plug applies equally to all rabbinical enactments. In reality,
determining when it does apply is a complicated matter, as evidenced
by the controversies among the achronim in Orach Chayim 275 regarding
not reading by lamplight on Shabbat lest one inadvertently regulate the
flame. Resp. Radbaz, II. no.770, wrote that regarding the prohibition
of walking behind a woman because of hirhur, all women in all countries
are the same, but he did not write that all men are the same; this
distinction between who is subject to the enactment (men) and what or
whom the enactment is about (women), with only the latter being subject
to lo plug, is made by the TaZ and cited by Biur Halachah in 275.

                                * * *

In the second half of his critique R. Feldman assesses my sources,
starting with the Maharshal who, he states, permits only what was
permitted in the first place, and who does not mention habituation.
He notes that Maharshal quotes from the Ritva that the leniency of
hakol lesheim shamayim should be used only by a great hasid (saint), and
concludes that "this leniency can hardly be widely applied nowadays." In
a footnote, he writes that when Maharshal says that the "whole world"
relies on this leniency, "he is merely stating that the practice is
widespread and nothing more."

If R. Feldman failed to notice the glaring contradiction in his own
argument-a leniency which "can hardly be widely applied" cannot at the
same time be described as "widespread"-then clearly I need to restate
my central point in greater detail.

In Kiddushin 91b, R. Acha b. Aba took the unusual step of taking his
already-betrothed, prepubescent granddaughter in his lap (some say under
his bedclothes). Challenged by his son-in-law, he justified himself
by citing a statement of Shmuel "hakol lesheim shamayim" (everything
[done] for the sake of Heaven [is permissible]), i.e., he had no untoward
thoughts. This fits in with other seemingly egregious behavior engaged in
by sages who justified themselves in a similar manner, such as R. Acha
in Ketuvot 17a who danced at a wedding with the bride on his shoulders,
and R. Gidel in Berachot 20a who sat near the entrance to the mikveh while
the women exited; they explained that women were to them like a "wooden
beam" or like "white geese" rather than sexual objects. Similarly,
in Shabbat 13a, Ulla was in the habit of kissing his married sisters
on their hands or sleeves or perhaps on their bodices, a practice he
forbade to others. Tosafot there explains that Ulla was a completely
righteous person (tzaddik gamur), and "he knew that he himself would not
come to hirhur," even though others might. That hakol lesheim shamayim is
identical to statements that women are like wooden beams or white geese,
is explicit in Tosfot Rabbeinu Elchanan (the son of Ri Ba'al haTosafot),
in Avodah Zarah 17a, regarding Ulla:

He permitted himself [to kiss his sister(s)] because she was like a
wooden beam to him, as we say in Ketuvot about [dancing with] a bride,
and as we say at the end of Kiddushin "I hold like Shemuel's statement
[that] hakol lesheim shamayim."

How, then, are we to understand the comment by Tosafot in Kiddushin 92a
on hakol lesheim shamayim: "On this we rely today, in using the services
of women"? Why not say that since R. Acha b. Aba was a tzadik gamur like
R. Acha, R. Gidel, and Ulla, he was permitted what remains forbidden
to everyone else? Similarly, Maharshal's heading in Yam shel Shelomoh
there, following Tosafot, is "the whole world relies on this [hakol
lesheim shamayim] in using the service of, speaking to, and looking at
women." The "we" in Tosafot is "the whole world" in Maharshal, i.e.,
the general community. Yet the ability of a tzaddik gamur to refrain
from hirhur says nothing about the average person. Maharshal himself,
after citing Tosafot, cites the Ritva that one should not permit himself
leniencies in matters of hirhur unless he is a saint.

R. Feldman gets things exactly backwards when he writes, "The [Talmudic]
passage states that contact with women is permitted where it is done hakol
lesheim shamayim (the intention is for godly [noble] purposes). This
passage refers to contact with totally platonic intentions…. According
to the text, platonic relations are permitted because they were never
forbidden in the first place." The question is not whether platonic
relations are permitted, but who is entitled to claim that his contacts
with women are platonic, and in what circumstances.

On this basis I explained Tosafot's reasoning as being that the "we" of
"on this we rely today" is of equivalent status to R. Ada b. Ahava with
regard to hakol lesheim shamayim, i. e., when the community at large is
accustomed to mingling with and speaking to women, their familiarity
can be relied upon to forestall sinful thoughts. I cited the Levush
and Resp. Tzitz Eliezer's explanation of the Leket Yosher (Resp. Tzitz
Eliezer also cites the Levush) as evidence that such a rationale is,
indeed, found in Halachic literature. All the citations reinforce each
other: the Tosafot is the source for the Yam shel Shelomoh, while the
latter helps in understanding the Tosafot; the Levush helps explain the
Tosafot, while the Tosafot provides sanction for the Levush; and so, too,
the words of Yam shel Shelomoh and the Levush, written by Maharshal's
disciple, illuminate and reinforce each other. Finally, the example of
the Germanic-Dutch Orthodox communities provides concrete illustration
of the principle of the Tosafot and Maharshal put into actual practice.

R. Feldman barely cites the Gemarra, omits mention of Tosafot altogether,
and makes only passing reference to the practices of the Germanic-Dutch
communities ("the practice of some pre-war German rabbis to shake hands
with women"-as if that was all there was to it). The Tosafot in halachah
and the Germanic-Dutch communities in ma'aseh are the two pillars of my
"thesis," as R. Feldman calls it, but he ignores them and instead snipes
at my subsidiary sources.

Regarding the Leket Yosher, I wrote that it was "apparently" a source,
but my arguments do not depend on it, and in Bnei Banim I omitted it.
That said, the explanation of Resp. Tzitz Eliezer that nowadays we
are used to walking in behind women so no hirhur results is indeed,
apparently, correct. R. Auerbach's alternative explanation, that it
is difficult to avoid walking behind women today because there are so
many of them about, does not fit the language of the Leket Yosher "we
are not all that prohibited…." R. Auerbach himself does not reject R.
Waldenberg's explanation and even seems to endorse it. I do not know
what third alternative explanation R. Feldman is referring to.

As to why Leket Yosher singled out "the wife of a Torah scholar and his
mother" and whose mother is being referred to, this is immaterial to
the above. (If the reason for the prohibition is hirhur, it is not self-
evident that walking behind one's mother was ever prohibited, just as a
son may embrace his mother without fear of hirhur.) But here, too: there
is no hint that Leket Yosher is referring to letting women walk in front
as a mark of respect, a mitzvah; whereas my suggestion, that the issue
is whether or not they sway provocatively, fits in with the central
concern of avoiding hirhur, as Resp. Radbaz wrote: "The basic reason
[for the prohibition of a man walking behind a woman] is lest he comes
to hirhur as a result of her walking and her movements." More than that,
according to Halacha ein mechabdim baderachim: considerations of kavod
do not apply while walking along the road and there is no mitzvah to
honor anyone by letting him or her go first; see Rema in Yoreh Deah
242:17. How, then, could Leket Yosher be suggesting that letting an
important woman go first is a consideration? The exception is for people
walking in a group (chaburah), i. e., intentionally, as opposed to a
chance encounter, but here, again, there is nothing to suggest that
the Leket Yosher is talking about such a circumstance. It should also
be noted that according to Resp. Radbaz the prohibition against walking
behind a woman applies no matter how far ahead she is, so long as he sees
"her walking and her movements" which might cause hirhur; whereas for
a man to show respect by letting a woman walk in front of him the two
would have to be near enough so that the honor is noticeable. Finally,
even if the Leket Yosher may not be a source when taken by itself, as
R. Feldman maintains, nevertheless, in the context of the other sources
it certainly is. The same applies to the Levush. The supposed Talmudic
proofs against the Levush are insubstantial, and the Levush is by no
means a lone opinion, as evidenced in the Otzar Haposkim I cited.

R. Feldman, however, raises two points that deserve consideration. The
first is, what is the meaning of the Levush's statement that when
women frequently intermingle with men, "there are relatively few sinful
thoughts" (ein kan hirhurei aveirah kal kach)? Is not even a small amount
of erotic thought forbidden? But see Levush in Even haEzer 64:2: It is
permitted to look at the jewelry on [the bride] and at her uncovered
hair for this does not cause hirhur so much (eino meivi kal kach liy'dei
hirhur); therefore, it is permitted [to do so] in order to praise and
value her, even though with other women this, too, is prohibited.

It means that most of the time, gazing at the bride's hair and jewels
does not result in hirhur; and therefore it is permitted when done for
a good reason. So, too, when men and women habitually intermingle, most
of the time no hirhur stems from the intermingling itself. And what
about the minority of times? I suggest that the Levush is referring
to a fact of life. To attempt to prevent hirhur completely is futile;
hirhur aveirah is one of the things no one escapes daily, as stated in
Bava Batra 164b. Men will occasionally come to hirhur no matter what,
and certainly adolescents, whom Rashi in Sukkah 26a describes as "prone
to hirhur" (shehahirhur matzuy bahem). Hirhur can result from gazing
even at a woman's little finger, as in Berachot 24a; if she is completely
clothed from head to toe hirhur can still result from seeing her walking,
as in Resp. Radbaz above; to forestall it, she would have to walk inside a
barrel or better yet, not appear in public altogether. Midrash Tanchuma in
Vayishlach, in fact, reaches that conclusion, "…a woman should stay inside
her home and not go out in the street… lest she be a stumbling-block to
men who, as a result, will look at a woman." But that is not Halacha,
and no community practices it.

The second question is more difficult: if there is a principle that
habituation helps to forestall hirhur, why did the Levush say so only
regarding shehasimcha bime'ono and not in Even haEzer 21:1-3 regarding the
prohibitions of walking behind, listening to the voice of, and seeing the
hair of a woman? Note, however, a further question: the Levush mentions
the issue only in his supplementary Minhagim; why not in its proper
place in Even haEzer 62, where the laws of saying shehasimcha bime'ono
are found? Another puzzle: why did Aruch haShulchan in Even haEzer (and
anywhere else) omit mention of both the stringency of Sefer Chassidim
and the leniency of the Levush--mimah nafshecha? It is not his way to
overlook a halachah so featured in the achronim.

Certainly, there are limits to argument-from-omission, whether by the
Levush or the Aruch haShulchan, and speculation remains exactly that.
But Levush and Aruch haShulchan both wrote comprehensive works they hoped
would largely supersede the Shulchan Aruch (!), as they stated in their
respective introductions; Aruch haShulchan wrote, in this regard, that
he was following in the path of the Levush. They included everything
discussed by the poskim up until their times, including established
customs. Perhaps they did not include in the body of their codes (as
opposed to in the Minhagim of the Levush) either the non- Talmudic
stringency of Sefer Chassidim or the countervailing local custom,
because the one and the other was not fixed but varied from place to
place and from generation to generation. There was certainly no question
of codifying exceptions to the Talmudic laws of Even haEzer 21, which,
however, does not prejudge the possibility of such exceptions.

As for the Aruch haShulchan on hair-covering, I cited it to demonstrate
that what arouses hirhur in one generation does not necessarily do so
in another, based on frequency of exposure. To attribute the change
to women's hair changing its nominal status from covered to uncovered,
rather to the underlying presence or absence of hirhur, is, in my opinion,
an exercise in semantics.

********************


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