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The status of women in Jewish law

Sokol, Tova, M.A.

The American University, 1988

UMI 300 N. Zeeb Rd. Ann Arbor, MI 48106

THE STATUS OF WOMEN IN JEWISH LAW

by

Tova Sokol

submitted to the

Faculty of the College of Arts and Sciences

of The American University

in Partial Fulfillment of

The Requirements for the Degree

of

Master of Arts

in

Religious Studies

Signatures of Committee:

Chairman:

June 8, 1988 Date

1988

The American University Washington, D.C. 20016

THE AMERICAN UNIVERSITY LIBRARY THE STATUS OF WOMEN IN JEWISH LAW by

Tova Sokol

ABSTRACT

This paper views the position and status of women in

Jewish law. These origins are found in the , which is the primary source, of all Jewish law, and its development is found in subsequent . The Jewish woman has tradition­ ally been assigned a distinct status from that of Jewish man, the salient feature of which has been the exemption from communal obligations. In this century women began to demand full participation in Jewish life and consequently have achieved a great change in their status, mainly in the

Reform, Conservative, and Reconstructionist movements of

Judaism. This paper reviews different aspects of Jewish law and its application to women over the centuries. It argues that because the nature of Halakha has been the continuous interpretations and applications of the to the needs and demands of subsequent generations, it is possible to bring further changes in women's status. PREFACE

The centrality of law in stems from the historic Jewish insistence on putting into practice its ideas, ethics, values, and beliefs. It has been the preoccu­ pation of all generations to make the Torah (Pentateuch) a living Torah (torat haviml. Without translating the law into a way of life, it would have become an empty vessel and an impediment to the survival of the Jewish people.

The Jewish woman has a special status in Jewish law; the historical exemption from communal obligation seems to be a central element of it. Traditionally, it was felt that because the law assigned women a distinct status, their religious condition stood at a different level from that of

Jewish men. Consequently, many modern women were made to feel that their religious development was not a vital concern to the community and that the effect of the law was to render them peripheral . The distinct status of women under the law has not only meant a subordination in concrete instances, but also a presupposition of women's "otherness." Histori­ cally, this "otherness" did not permit women to shape the law or even to acquire the extensive knowledge and study which are necessary to affect the legal process.

The twentieth century has seen a tremendous change in the status of women in Jewish law. Never before has a woman enjoyed the many privileges that put her on a par with men.

These changes came about partly as a result of the worldwide

changing attitudes toward women. The feminist movements have

brought to women new dignity, assertiveness/ and confidence

never felt before by them. These new feelings influenced

tremendously Jewish women too, who began to question their

status and demand full participation in Jewish life. Today,

women study the Torah and the (a combination of

Mishnah and ) and hold high positions in the Jewish

community, such as presidents of . The Reform,

Conservative, and Reconstructionist movements allow women to

sit together with men in the sanctuary, to be counted in a

(a quorum of ten), to be called to the Torah for

aliyot (Torah honors)/ to chant the Torah and Haftorah (a

portion from the Prophets), and to officiate as cantors and

. However, even these practices vary from congregation

to congregation, and the Orthodox movement is adamant in its

refusal to bring about any change. Some advocates for a change in the position of women in Jewish law, such as Blu

Greenberg in her book On Women and Judaism, claim that it is possible to bring about such changes within the halakhic

system (the meaning of Halakha will be discussed later).

Others, like Susannah Heschel, feel that the processes of growth of Judaism toward redefining its position on women cannot be simply guided by "changing one or another partic­ ular point of Halakha/ hut by creating a framework for

iv understanding larger questions of revelation, tradition, authority, and change" (Heschel 1983, xxxii).

The purpose of this paper is to trace the origins of the position and status of women in Jewish law and their development in subsequent Halakha. It is an attempt to show that since the nature of Halakha changes, it could be rein­ terpreted to accommodate women today who struggle to stay within the tradition without compromising their identity and integrity as women.

In doing the research for this paper I was fortunate to use my ability to read the sources in Hebrew. The Bible, which is the foundation upon which everything else rests, is my primary source, as well as the Talmud and some medieval taimudic commentaries, such as ( Shlomo Yitzhaki, eleventh century); the Tosafot (a school of French and German commentaries, twelfth-thirteenth centuries);

(Rambam, twelfth century); the shulkhan Arukh (written by

Joseph Karo, fifteenth century); Magen Avraham (Avraham

Gumbiner, seventeenth century); (sixteenth century); the Responsa (rabbinical rulings on specific cases); and a limited number of contemporary sources.

The literature will examine the meaning of Jewish law and its development and how it has treated women. This will best be seen in the chapters on service participa­ tion/ the laws of marriage and divorce, and women in the

Rabbinate.

v TABLE OF CONTENTS

ABSTRACT...... ii

PREFACE ...... iii

Chapter

1. THE ORIGINS AND DEVELOPMENT OF HALAKHA .... 1

2. WOMEN AND THE MITZVOT ...... 7

3. THE STATUS OF WOMEN IN THE B I B L E ...... 13

4. THE STATUS OF WOMEN IN THE T A L M U D ...... 17

5. THE STATUS OF WOMEN IN THE MIDDLE AGES .... 20

6. THE STUDY OF T O R A H ...... 25

7. SYNAGOGUE SERVICE PARTICIPATION...... 29

8. P R A Y E R ...... 33

9. INHERITANCE...... 39

10. AND O N A H ...... 41

11. MARRIAGE AND DIVORCE ...... 45

M a r r i a g e ...... 45 Di v orce...... 48

12. AGUNAH AND YEVAMAH ...... 52

A g u n a h ...... 52 Ye v amah...... 55

13. WOMEN'S ORDINATION ...... 57

14. EPILOGUE ...... 63

BIBLIOGRAPHY...... 65 CHAPTER 1 THE ORIGINS AND DEVELOPMENT OF HALAKHA

The concept of law has a broad connotation in the

Jewish tradition. In the original Hebrew it is Halakha ("the way to go" or "the path"). it means not only law but a whole way of life, it encompasses all spheres of Jewish life— personal, social, national, international, and all practices and observances of Judaism. Therefore, in this paper the word Halakha will be used regularly to indicate Jewish law in its extended form.

The essence of Halakha is the "wisdom of the applica­ tion of the written word of the Torah to the life and history of the Jewish people" (Berkovits 1983, 71). The eternal word of the Torah is the written law (Torah she-bikh-tav). This was the revealed law of God. Over time, however, it became clear that the Torah could not foresee the changing circum­ stances and demands of subsequent generations. Therefore, sages of every generation applied the general principles of the written law to new conditions and circumstances. This tradition was passed from generation to generation and has become the "Oral Law" (torah-she-ba/al pe'h). Thanks to the absence of a central doctrinal authority from the Second

Temple period and onward, individual scholars had great free­ dom of interpretation and ruling. Consequently, there

1 2

evolved the practices of following the ruling of the local rabbinic authority (moreh-de atra), the transmission of minority along with majority rulings and the recording of the disputes between scholars that brought about different deci­ sions which are fundamental to the development of the concept of Halakha. The resulting reinterpretations ensured the fluidity of this dynamic system that evolved continuously to integrate the present with the past and thus give direction to the future.

The application of the Torah to the needs throughout the history of the Jewish people was entrusted to the sages of each generation. We can, perhaps, compare the Torah to the Constitution of the United States, and its application to the emerging problems in society and to judges who judge according to the interpretation of the principles of the

Constitution. Historically, the sages, rabbis, and scribes tried to make the Torah a "living Torah" (torat hayim) to guide the . The very meaning of Halakha (the way to go) points to its nature, namely that Jewish law changes. It does not stand still, because the very nature of life is its dynamic character. As we move along in history our condi­ tions, situations, and needs change, and we need new guide­ lines to tell us how to live. Halakha teaches us the way a

Jew is required to walk according to the Torah. The main characteristics of Halakha is its view that the Torah was given to man and its realization on earth was entrusted to 3

man's responsibility and insights. Therefore, the Torah "is no longer in heaven." The role of Halakha is to "humanize" the revealed word of God and make Jewish life possible, taking into consideration human nature and its needs in a changing reality.

In order to make the Torah truly a law of life, the rabbis of talmudic and posttalmudic times did not hesitate to uproot or abrogate laws or commandments when they became obsolete or had unacceptable consequences. A takanah (new enactment) became law because of some pressing need. For example, Rabban Gamliel the Elder enacted a takanah that if a man divorces his wife by sending a messenger to hand her the divorce document, he cannot change his mind and annul the cfet

(divorce) while the messenger is on his way without the know­ ledge of the messenger or the wife. If he seeks to do so, the is nevertheless valid. This takanah illustrates the

"uprooting" of a biblical law, according to which as long as a wife has not received a divorce document a husband has the right to declare it invalid. In this case, the rabbinical takanah corrected a situation that could lead to a morally unacceptable situation when a wife, assuming that she is properly divorced, remarries. New takanot were also enacted to legalize changed social realities, such as Rabbenu

Gershom's ban on polygamy, which, in the tenth century, was illegal for . Rabbenu Gershom acted in this instance to legalize what was already a prevalent custom. 4

*

Other principles of change were also defined by

talxnudic teachers to guide the halakhic authorities. No

restrictions could be imposed on the community if the major­

ity could not abide by it (Baba Batra 60b). No restriction

could be imposed that would cause a substantial material loss

(e;g., Mo'ed Katan 2a) or excessive trouble. No rabbinical

court could repeal a law established by another court unless

the members of the former outnumbered the latter or surpassed

it in its scholarly attainments (Megillah 2a). When the

Halakha becomes unclear in the bet din (court of law), the

local custom () of the community establishes the norm

(Talmud Yerushalmi Pe'ah 7:5). Furthermore, a custom that is

widely recognized (public minhag of the community) can

replace the Halakha (Talmud Yerushalmi Yevamot 12:1). A

custom introduced by a defined group, such as the citizens of

a town or a group of pious men or women in some area of

religious, social, or legal life serves as a source of

Halakha which may not be altered and has the same authority

as the words of the sages (Pesahim 4:1, Baba Mezia 7:1).

Whenever there is an immoral or evil practice that has to be eliminated, the law providing for this practice can be

suspended and new rules are instituted (l'migdar milta, "to

fence in a thing"). Similarly, the law can be disregarded and new measures adopted to respond to great national crisis or safeguard a national or social value (hor/aat hasha'a, the

law of the hour) (Berkovits 1983, 69). An example that 5

illustrates the authority to disregard the law under these

conditions is that of the prophet Elijah. According to the

principle of the Torah, no prophet may introduce any innova­

tion. Nevertheless, Elijah built an altar and sacrificed on

it although it was forbidden to offer sacrifices on any altar

after the Temple had been built in . Elijah trans­

gressed the law when he faced pressing circumstances— to

combat the great evil of idolatry.

When biblical laws became immoral in the eyes of the

rabbis, they either revoked them or made them dependent on so

many conditions that they became null and void for all prac­

tical purposes. An example of this is the law of "an eye for

an eye" (Deuteronomy 19:21), which was interpreted not liter­

ally, but to require monetary compensation for an injury

(Baba Kama 83b). The law of the "ordeal by jealousy"

(Numbers 5:12) was abrogated by Rabbi Yohanan Ben Zakai, who considered it very harsh. It refers to the ordeal by trial of the suspected adulteress (sotah). He ruled that the husband of such a woman should have to prove that he himself had led a chaste and moral life before he could condemn his wife. Because the husbands of that age did not lead pure lives, the rabbi concluded that the law should be revoked

(Sotah 47b).

The most striking example of the evolution of Halakha in our time is found in its attitude toward women. In the past, the societal and religious structures of normative 6

Judaism placed women in a position inferior to that of men.

There was an effort, though, to alleviate women's difficul­ ties and protect them physically and economically because of their role and status within the society. In the modern period we see a tremendous changes (which will be discussed later) with the advent of the Conservative, Reform, and

Reconstructionist movements. In fact, the issue of the position of women in Jewish law is an example of the differ­ ences among the various denominations of Judaism. The Ortho­ dox movement views traditional laws as binding on all aspects of one's life. Although its tendency has been vehemently to resist changes in general and those concerning women in particular, today it faces the challenge of accommodating modern, intellectual and professional women. Conversely, for the Reform movement, Halakha is not binding, whereas the

Conservative and Reconstructionist movements view Halakha as indeed binding, but open to interpretations that meet the needs of present times. CHAPTER 2

WOMEN AND THE MITZVOT

The purpose of the Jewish commandments is to create a morally good and socially conscious community. The command­ ments (mitzvot) encompass all possible spheres and dimensions of human life and regulate one's activity in the most minute detail. The mitzvot fall into three categories. The major­ ity of the commandments apply tc both genders when they cover the area of moral responsibility, such as the prohibition against taking another human's life, the obligation to honor one's parents, the observance of the Sabbath, , etc.

The second category of mitzvot is directed to either men or women, based on their biological differences, such as circum­ cision for men and menstruation laws for women. The third group is "gender biased" (Biale 1984, 10), namely the com­ mandments are directed only toward men or women but are not governed by special necessities of gender. Some examples are the requirement of three yearly pilgrimages for men but not for women, laws of inheritance, or the prohibition on multi- sexual relationships for women but not men. The mitzvot reflect the social order of biblical times and were formed to maintain the role and status distinctions of men and women.

This is strongly manifested in the prohibition against men

7 8 and women wearing the other gender's clothing (Deuteronomy

22:5).

Although the Bible is clear on the differentiation of gender within the social order, it does not contain syste­ matic legislation that deals with the principles of the prohibitions and exemptions. We find those general princi­ ples in the that divide the mitzvot into the follow­ ing categories:

1. Positive mitzvot that are time bound

2. Positive mitzvot that are not time bound

3. Negative mitzvot that are time bound

4. Negative mitzvot that are not time bound (Biale

1984, 12)

Time-bound mitzvot are, for example, the prohibition against eating bread during Passover. By contrast, keeping kashrut is not a time-bound because one is always obligated to do so.

Women are obligated in virtually all positive command­ ments that are independent of time, but they are exempt from most time-bound positive commandments (Kiddusbin 33b). The exemption of women from time-bound positive mitzvot (mitzvot aseh she-ha-zeman qraman) is a principle that exempts women from the recitation of the Shema, the wearing of tzitzit, the , hearing the . dwelling in the sukkah, and taking the . It is to be noted that women, while exempt, are not prohibited from performing these 9 mitzvot.

However, some positive time-bound mitzvot are mandatory for women. These include eating matzah and rejoicing on the festivals and hakhel (assembly). On the other hand, though, women were exempt from some mitzvot that are not time bound, such as the study of the Torah and procreation and redemption of the first-born sons. The Talmud identifies at least six positive mitzvot limited as to time, from which women are not to be exempt: kiddush on the Sabbath ( 20a), fasting on (Sukkah 28a), matzah on Passover (Kiddushin

34a), rejoicing in the festivals (Kiddushin 34a), assembly once in seven years (Kiddushin 34a), sacrificing and eating the Paschal lamb (Pesahim 91b). To these may be added four positive mitzvot of rabbinical origin, also time bound, for which women are equally obligated with men: lighting Hanukah lights ( 23a), reading Meqilat Esther on Purim

(Megillah 4a), drinking four cups of wine on Passover

(Pesahim 108a), and reciting hallel on the night of Passover

(Sukkah 38a). Because of these exceptions, the Talmud itself questions the validity of the general principle which seems to be inaccurate (Kiddushin 33b-34a).

The Talmud, however, does not say why women are to be exempt from certain commandments, perhaps because the role distinction of that time was so substantial. There is a

Midrashic statement that says that women's exemption, like those of minors and slaves, from certain mitzvot stemmed from 10 their single-minded nature, it was believed that minors only wanted to pursue foolishness while the slaves' time is not their own (Yalkut Shimoni to I Samuel 1:13). The

(the genre of rabbinic commentary that expands and explicates the biblical text) does not elaborate on the single- mindedness of women, but the interpretation of some scholars is that a woman's time and mind were dominated by her husband

(Swindler 1976, 84). For example, the (the companion volume to the Midrash) says: "Because her husband has authority over her" (Tosefta Kiddushin 1:11). A woman was under the care and protection of her husband and her behavior was dependent on his approval; hence, she was not obligated to fulfill the positive time-bound mitzvot. Modern interpre­ tations justify the exemption on the basis of "political consideration of the woman's domestic role in society."

Also, women in traditional Jewish society were encumbered by the duties of a housewife and mother. Time-bound mitzvot were considered to interfere with their domestic timetable and place an unreasonable burden on women. This point is particularly relevant in explaining the fact that while

"women are bound by the obligation to pray, they are exempt from praying at set times" (Biale 1984, 13). Rabbi Samson

Raphael Hirsch writes that because men indulge in day-to-day activities which are different from those of women, they are required to perform extra mitzvot in order to be spiritually balanced: 11

God's Torah takes it for granted that our women have greater fervor and more faithful enthusiasm for their God-serving calling and that their calling runs less danger in their case than in that of men from the tempta­ tions which occur in the course of business and profes­ sional life. Accordingly, it does not find it necessary to give women those repeated reminders to remain true to their calling, and warnings against weaknesses in their business lives. (Meiselman 1978, 44)

Every morning, a male Jew recites a special blessing

"who has not created me a woman." The Tosefta reads, "Rabbi

Yehudah said: 'a man must recite every day . . . "Blessed

art thou . . . who has not made me a woman . . . for women

are not commanded in all of the mitzvot"'" (Tosefta Berakhot

6:23). Some commentators interpreted the morning blessing of

men as birkat shevah, which express the recognition and

acceptance of "God's judgment and infinite wisdom" as the

ordainer of the laws of nature (Meiselman 1978, 50). They

view women's morning blessing "who has created me in accor­

dance to His will" as birkat shevah because Jewish women know

that their task is no less important than that of men and is

in accordance with the will of God. Other commentators

interpreted the blessings as birkot hod'aya (statement of

praise to God). A woman, thus, acknowledges her role,

different from that of man, as part of an overall divine

plan, mastered by the will, justice, and infinite wisdom of

God.

The women's exemption from time-bound positive mitzvot was, probably, a gradual evolution that occurred in daily

practice and community customs and reflected the 12 sociocultural feature of women's reality that centered around their domestic roles. CHAPTER 3

THE STATUS OF WOMEN IN THE BIBLE

The Old Testament is a collection of writings by males about society dominated by males. Hence, they portray a man's world. This reflects the fact, among others, that ancient Israel shared common social and cultural customs and legacies with its Near Eastern neighbors, whose salient features were patriarchy (together with patrilineal descent and patrilocal residence as the usual norm; Reuter 1974, 48), polygamy, concubinage, and slavery. Discrimination against women was a norm of the system, which enforced and perpetu­ ated the dependence of women on men. This is illustrated in the codes of law dealing with inheritance, divorce, sexual transgression, religious vows, cultic observances, and ritual purity. The wife was often characterized as essentially chattel. Her primary contribution to the family was her sexuality, which was regarded as the exclusive property of her husband. Her duty was to ’’build u p ’’ his house. Adultery involving a married woman was therefore a major crime punish­ able by death for both offenders (Leviticus 20:10, Exodus

20:14). The injunctions and prohibitions in Leviticus reflected the sexual standards of the ancient world and include the above-mentioned laws and warning against incest or prostituting one's daughter.

13 14

The Hebrew woman enjoyed better legal protection and a higher status than her Near Eastern womenfolk. Nevertheless, her social position continued to be far less important than that of men. In her visibly male-dominated world, the bibli­ cal woman was always under the authority of either her father, husband, or brother. The law is concerned with her only when it treats sexual offenses; where sexually differen­ tiated status, roles, or occupations are dealt with; when she requires special protection (e.g., widow); or in the absence of males' principal roles (the female heir).

In order to maintain the integrity of the family and ensure that essential property of each father's house has its place in Israel, we find inheritance laws that deal with special cases in the transfer of family property. One such law was brought to the attention of Moses by Zelophehad's daughters (Numbers 27:1-11). Traditionally, a daughter left her father's house at marriage to live with her husband's family, and she received no inheritance. By special legisla­ tion, daughters were permitted to inherit where there were no sons (Numbers 27:1-11). In that case, however, they had to marry only from their father's tribe, so that the patrimony shall not pass from one tribe to another (Numbers 36:1-9).

Another special law is that of the levirate, namely the requirement that a widow marry the brother of her dead husband. It was designed to preserve the property of a man in his name, that is, for his male descendants. 15

In the absence of inheritance laws for women, except in special cases similar to that of Zelophehad's daughters, there was no possibility for women to own property. A woman was dependent on her father and, later, on her husband to support her. Consequently, a widow with no sons was subject to the mercy of her family, because her husband's property would pass to his nearest male relation, who was not legally responsible for her support. The plight of the widow is emphasized through the repeated admonitions to the people of

Israel throughout the Old Testament to come to their defense.

(Special attention will be given in later chapters to the laws of inheritance and levirate.)

The laws of Numbers 30:3-15 indicate that women, as well as men, must undertake on their own initiative a binding religious obligation. However, the father of an unmarried girl or a husband of a married woman has the right to annul a vow made by his daughter or wife.

If women appear as a class of property in the codes of law, they are portrayed quite differently in the literature portion of the Bible. In addition to the roles of wives and mothers, women possess a great measure of freedom, initia­ tive, and power that win them the respect of the entire nation. We find in the Bible female prophets, such as

Deborah, who is also a judge (Judges 4:4-16); the prophet

Hulda (II Kings 22:14-20); and Noadiah (Nehemiah 6:14). The reason that women prophets were accepted in Israel was that 16

prophecy was understood as a special gift of calling. God

chose those persons He wanted to serve as messengers to

convey His word to His people, regardless of their sex

(Reuter 1974, 68). Similarly, the "wise women" such as the

wise woman of Tekoah (II Samuel 14:2) and the wise woman from

Abel-beth-Maach (II Samuel 20:16) were recognized as having

special gifts and their astute counsel was sought out and

respected. There were women who exerted a great deal of

influence as queens, e.g., Jezebel (I Kings 16:31) and

Ataliah (II Kings 11:3).

In the cult, there is some suggestion that women func­

tioned in the early period as "serving women" in the meeting

tent (Exodus 38:8). Also, there is a reference to women

singers in the Temple in the postexilic period (Ezra 2:65,

Nehemiah 7:67).

In many critical periods in ancient Israel's life, it

was the moral courage of women that saved the nation. This

is demonstrated in the courageous work of the Israelite

midwives who disobeyed Pharaoh's orders to kill Israelite male babies; the leadership of Deborah; the valor of Yael,

who killed the enemy's leader; and the determination of

Esther, who saved her people. The rabbis, who marveled at

such women, declared that "each generation is redeemed because of the righteous women of that generation" (Pesahim

109b, Sotah lib). CHAPTER 4

THE STATUS OF WOMEN IN THE TALMUD

The codes of law in the Bible do not encompass the many

details and intricacies of life that arose as time went by.

It was necessary to work within the framework of the law to

evolve specific rulings that dealt, among other things, with

specific cases that concerned women. A great deal of atten­

tion was paid to the most unfortunate individuals, such as

the widow, the orphan, the poor, and the Aqunah (the

"anchored” or deserted wife). Women continued to the be dependent upon men for fulfillment of their needs and the

legal literature provided a guide to their day-to-day activ­

ity, their rights and obligations. On one hand the Talmud describes exceptional women like Beruria, the wife of Rabbi

Meir, who was knowledgeable in Bible and the Talmud. Her opinions about legal decisions were sometimes accepted over the opinions of a rabbi (Pesahim 62b, Tosefta Kelim Baba

Mezia 1:6). On the other hand, some rabbis voiced their negative opinions about women by declaring, for instance, that it was more desirable to burn the words of the Torah than to give them to women (Talmud Yerushalmi Shabbat 6:1), and that the voice of women is an abomination (Sotah 48a,

Ketubah 70a). Similarly, we frequently find a statement that women are "light-headed" (Kiddushin 80b). In an interesting

17 18

commentary on the women prophets Deborah and Huldah, one

rabbi remarked that "haughtiness does not befit women. . . .

There are two haughty women and their names are hateful. One

being called hornet (Deborah) and the other a weasel

(Huldah)" (Megillah 14b).

Other women are mentioned in the Talmud for their know­

ledge , opinions, and arguments together with the rabbis

(e.g., Kiddushin 12a, Baba mezia 59b). However, as if to

warn fathers against educating their daughters, or women

against educating themselves, we read about the unhappy fate

of some of these women. For example, the great Beruria, who

scoffed at the rabbinical saying "women are light-headed,"

was warned by her husband that her own end might yet testify

to the truth of the words. To put her virtue to the test,

her husband charged one of his disciples to endeavor to

seduce her. She yielded, and then shame drove her to commit

suicide (Bat Kol 1987, 11).

In the rabbinical period, women were not qualified to bear witness. The Mishnah states: "The law about an oath of testimony applies to men but not to women" (Sabbath 4:1).

According to the Bible (Leviticus 5:1), a man who witnesses a crime has the responsibility to testify. The fact that women are relieved of this obligation deprives the courts of subpoena power over women (Koltun 1977, 122). The purpose of the law is to exempt women from mandatory appearance in public, but this exemption results also in loss of authority 19

and worth for women as well as a loss of reliable witnesses for the court. The only exception to this rule is in the case of the Aqunah (the deserted wife), whose testimony to her husband's death is admissible in court. This will be discussed later in the chapter on the Aqunah.

Despite the rabbis' view of women, the trend, in general, was to improve their lot by changing the details of existing legal institutions and by redefining the law to respond to changing social conditions (Reuter 1974, 209). CHAPTER 5

THE STATUS OF WOMEN IN THE MIDDLE AGES

Although the lot of Jewish women improved during the

talmudic period, we can see less halakhic change in posttal-

mudic and medieval times. It should be noted, though, that

halakhic and literary materials of these periods are scarce.

We have to distinguish between the general concept of

the Middle Ages and that of the Jewish Middle Ages. The line

between the general Middle Ages and modern times is usually

set somewhere in the late 1300s. For the Jews in Europe,

however, locked in behind the walls physically and spiritu­

ally, the Modern Age came with the Enlightenment in West

Europe and the movement in Eastern Europe. This is

the reason for the delay in opening up to modernity and the

ensuing halakhic change that could have taken place.

Because Jewish law directed all spheres of life of the

Jews, they lived a life of a separate state within a state.

In fact, the development of self-government is one of the

most interesting features of the history of the Jews in the

Middle Ages (Finkelstein 1964, xii). The synagogue was the

center of religious and social life of the community. The religious leaders were in charge of enforcing Jewish law while the Parnasim (lay directors of the synagogue) took care of the sick and the poor and other civic functions. In the

20 21

synagogue, women were isolated from the men and had their own

prayer meetings which were led by female cantors. The

epitaph of such a cantor, Urania of worms, states that she

was the "chief of the synagogue singers • • • with sweet

tunefulness [she] officiated before the female worshipers to

whom she sang the hymnal portions" (Abrahams 1958, 26). As a

special kindness to women, they were permitted to light the

Sabbath candles in the synagogue when away from home.

Notwithstanding their inferior position, there were

some outstanding women, like Dona Gracia Mendes (1510-68),

who was knows as "La Senora" and Parnesessa and was the most

prominent Jewess of her day. She was born as a Marrano in

Portugal and escaped with her family to Turkey, in Constan­

tinople she patronized scholars and established academies and

synagogues. She was especially concerned about rescuing Jews

from the Spanish and Portuguese Inquisition (Encyclopedia

Judaica 1972, vol. 12, p. 836). Similarly, mention is made of another title: mater synagogue or Pateressa.

Women were expected to fulfill their household duties.

Many of the customs and ways of Jewish women in the Middle

Ages are vividly depicted in the Memoirs of Gluckel of

Hameln. Gluckel, who lived in Germany (1646-1724), was a self-educated woman, upon the death of her husband she was left to provide for her thirteen children and did so by continuing her late husband's trade business, she traveled extensively in Europe on business and m et with the most 22

prominent Jewish families there. Gluckel describes the role, which she intended to be a model to her posterity, of a pious woman whose main concern was the welfare of her family and education of her children. Although academies were closed to women, they were not illiterate because they had to learn how to read from the prayer book. Women usually were well versed in the Tehinot (devotional prayers for women), the Musar books (ethical tracts), and the Tzenah Urenah, a book whose moral exhortation, parables, and stories were the indispensable guide of every pious woman since the beginning of the seventeenth century down to the beginning of our own century (Gluckel 1977, xiv).

Medieval Jews were distinguished by their dress code from the rest of the population. Women were required by a custom originated in the Mishnah to cover their hair at all times (Mishnah Ketubot 7:6, Baba Kama 8:6). The custom became a strict ordinance for married women, for no man was allowed to pray in the presence of a woman whose hair was not covered.

The most important takanot concerning women were enacted by Rabbenu Gershom (960-1040), which became binding on West European Jews. Surnamed M'eor Haqolah (the light of the Diasporah), he headed a rabbinic academy in Mainz,

Germany, and became the leading talmudic authority in West

Europe. The best known of his takanot is the ban on polygamy, by which he reflected the tendency among Ashkenazi 23

Jews toward a monogamous family. Another takanah forbade compulsory divorce and the issuing of any divorce without the consent of the representatives of the communities. The only exception to the herem (ban) on polygamy was in the case of the woman who left her husband and accepted baptism. If it was established that the woman accepted conversion willingly, the husband was free to marry a second wife. The Spanish rabbis, although they did not accept the ordinance of Rabbenu

Gershom on polygamy, nevertheless enforced the law on the

German Jews who emigrated to their countries. They stated that because procreation was a biblical commandment, the childless person, after ten years of marriage, could marry a second wife (Finkelstein 1964, 8: responsa to Rabbi Solomon ibn Adert, 280). Another takanah of Rabbenu Gershom pro­ tected the woman whose husband left her to live elsewhere, and she demanded an income from him. Under a herem, those who knew the extent of the husband's property had to reveal it in order that the wife get her share.

When some women in Germany and France achieved a high economic status through business and trade, they assumed progressively the responsibilities of paying for injuries, despite the talmudic law that one cannot collect monetary compensation from women and slaves (Mishnah Baba

Kama 8:6). Hence, a new principle of women's responsibility was established.

One of the major concerns of the community was the 24

protection of widows, for whom a special fund was provided.

Another charitable provision, the fund of Hakhnasat Kallah. was established to aid orphans or the needy bride, too poor to provide a dowry, because the dowry of such a bride was considered the responsibility of the community.

Despite the respected position of a woman as a home­ maker and the one who pulled the family together, and although she might have been an equal business partner to her husband like Gluckel of Hameln— "he took advice from no one else and did nothing without our talking it over together"

Gluckel 1977, xvi)— the Jewish woman enters the modern period lacking in religious rights like her predecessors in earlier history. CHAPTER 6

THE STUDY OF TORAH

The study of Torah is not a binding commandment for women, although it is a positive mitzvah which is not time bound. The grounds for this exemption are in a passage of

Kiddushin in the Mishnah:

Of all obligations of the son upon the father, men are bound and women are exempt. But of obligations of the father upon the son, both men and women are bound. Judah [said], "This is the meaning of 'all obligations of the son upon the father': From those mitzvot one must perform for a son, men are bound by but women are exempt, we learn that our rabbis taught: The father is obligated with respect to his son to circumcise him, teach him Torah, take a wife for him, and teach him a craft." (Kiddushin 29a).

This principle is based on the fact that in Deuteronomy 11:19 we are told, "And you shall teach them to your sons," and does not say "daughters"; therefore, the premise here is that only males are commanded to study Torah and they, in return, have to teach it to their male offspring. Whoever is commanded to study is commanded to teach; whoever is not commanded to study is not commanded to teach. (Kiddushin 29b).

The sources are divided on the issue: Is a woman excluded altogether from Torah studying or is she permitted to do so voluntarily? Some attempt to exclude women from any partici­ pation in studying Torah at all. Rabbi Eliezer says that

"whoever teaches his daughter Torah teachers her nonsense

[tiflut 1" (Sotah 20a). Others, like Ben Azzai, state that a man should "teach his daughter Torah so that she can have a full understanding of the law and can follow it." In the

25 26 talmudic period we find examples of this view in the cases of some exceptionally celebrated women like Beruria, the wife of

Rabbi Meir, who was a scholar in her own right, or the daughter of Rabbi Hananiah Ben Teradjon (Eruvin 53, Pesahim

62). The author of the Perisha (1640) states that although the study of Torah is prohibited for women, if they teach themselves and thus demonstrate their capability, motivation, and enthusiasm, the prohibition is removed (Perisha to Tur,

Yoreh De'ah 246:6). In 1866 Rabbi Yehudah Aszod wrote his

Responsa that "we do not find anywhere that women are forbid­ den to study" (section on Yoreh De'ah). The Shulhan Arukh acknowledges that if a woman studies Torah she will gain a reward from heaven, but discourages women from doing so:

"Even though she does gain a reward, the sages have commanded that a man should not teach his daughter Torah, because most women do not have the intention of truly learning and they turn the teaching of the Torah into nonsense, in accordance with their limited understanding" (commentary on Ketubot

26b). Joseph Karo, the author of Shulhan Arukh, sides, thus, clearly with Rabbi Eliezer. He does, however, make a dis­ tinction between the Oral Law (Mishnah, Talmud, and subse­ quent commentaries) and the Torah itself. Oral Law should not be taught to women because of its complexity. The Torah, on the other hand, is much simpler. One could not teach it to a daughter, but if she acquires knowledge of it, it is not a waste (Biale 1984, 37). Rabbi Moses Isserles (the Rama, 27

sixteenth century) does not quite agree with the Shulkhan

Arukh but says that "nevertheless, a woman must learn those

laws which pertain to women" (Yoreh De'ah 246:4).

Notwithstanding the general principle that women should

not study Torah themselves, the Talmud praises women's role

in the study of Torah because they encourage their husbands

and sons to pursue it through their personal piety and sacri­

fice. This statement reflects the traditional view of the

position and status of women in Jewish religious life and

society, namely that their role is of a private nature: to

create a positive environment at home so that the males will

be able to assume their responsibilities and obligations in the realm of public religious life.

The three mitzvot that pertain only to women reflect

again the private, domestic, and marital status of women.

They are Niddah (the laws of the menstruant woman), Hallah

(burning a tenth portion of the bread dough as a symbol of

the ancient tithe that used to be paid to the priests), and

lighting the Sabbath candles (Biale 1984, 40). The laws of

Niddah will be discussed in this paper as an example of the

laws that govern sexual and marital relationships.

Needless to say, there is a radical change in our

times. Today, women enjoy as much freedom of study as men do. They attend various programs of adult education which many Jewish organizations and synagogues offer. Women study 28 and teach in the seminaries and universities and hold many positions in all ramifications of Jewish activities. CHAPTER 7

SYNAGOGUE SERVICE PARTICIPATION

The commandment to read Torah is of biblical origin,

although our present Torah reading is of rabbinical origin.

The reading in Deuteronomy 31 talks about Hakhel (assembly):

And Moses commanded them saying: at the end of seven years, at the appointed time of the Sabbatical year, on the holiday of Sukkot, when all Jews come to the Temple, shall you read this Torah to the entire people of Israel. Assemble [hakhel] the people, men, women, and children, and the stranger in your gates so that you will under­ stand and you will learn and you will fear God, your God. (Deuteronomy 31:10-13)

Today, in the communal prayer, we read Torah on Mondays,

Thursdays, and Saturdays, and on all the major and minor

holidays. At each reading, a number of Aliyot (Torah honors)

are distributed during which one is called to the Torah and

recites a blessing before and after a certain portion is

read. In the Talmud there is a passage that suggests that in

principle, if not in practice, women are legally qualified to

read the Torah. "Our rabbis taught, all are qualified to be

among the seven [who read the Torah] even a minor and a

woman, but the sages said that a woman should not read because of kvod ha-tzibur [respect for the congregation]"

(Megillah 23a). The Talmud, however, does not explain what

it means by kvod ha-tzibur, nor do we find an answer from the medieval commentators. This phrase appears only five times

29 30

in the talmudic literature:

1. "A naked person nay not read fron the Torah because

of kvod-ha-1zibur11 (Megillah 24b)

2. "One who is clad in rags may not read from the

Torah because of kvod-ha-tzibur" (Megillah 24b)

3. "One may not roll up the Torah scroll in public

because of kvod-ha-1zibur" (Yoma 90a)

4. "The cantor may not disassemble the ark in public

because of kvod-ha-tzibur" (Sotah 39b)

5. "One may not read from a printed Pentateuch in the

synagogue because of kvod-ha-tzibur" (Gittin 60a)

All these five activities are prohibited because they are considered offensive to the dignity of the congregation.

A woman who reads Torah would be offensive to the congrega­ tion because it would imply that the male congregants cannot do so. The privilege which is denied here is based on what the "dignity of the congregation" meant in the talmudic period and is not a biblical prohibition. It is only a consideration (Seymore 1977, 269). Another explanation is that women, by their nature, cause a sexual distraction during the service and, therefore, in an orthodox synagogue, there is a partition between the women's seating section and the men's. A woman's voice is also considered a sexual diversion (kol-be-isha-evrah) so that a woman cannot read aloud before men. Others say that since women have a lesser obligation in and communal prayer, women are not 31 obligated in communal Torah reading. Consequently, Torah reading and aliyot remain with those who are obligated, that is, the men (Meiselman 1978, 144).

Commentators such as the Alfas (1013-1103), the Tur

(died before 1340), and the Shulkhan Arukh (written by Joseph

Karo, 1488-1575) all quote the B'raita in Megillah 23a. The

Ran (who was active in Toledo from 1340 to 1380), however, commented on the subject of aliyot as follows:

All may ascend . . . for the seven honors: this means to complete the number of seven but not that all may be minors or women. For, since they are obligated they cannot be exclusive. Essentially, since the law requires only the first and the last readers to recite the bene­ dictions, a woman and a minor may not read first or last, because the other readers are not fulfilling their obli­ gations to have the benedictions recited through their [minors' and women's] recital of them. However, nowadays that the rabbis have ordained that all the readers should recite the benedictions, a woman and a minor may read even first and last. And since they may read, they certainly may recite the benedictions." (Commentary on the Alfas, Megillah 13a; see Seymore 1977, 271)

Some rabbis raised the question that since women are not obligated to study Torah, they are not required to say the blessing before and after the Aliya. It follows that using the principle of "whoever is not personally obligated to perform a mitzvah cannot fulfill the requirement for others"

(Rosh Hashana 3:8), since a woman is not obligated to recite the blessing but the congregation is under the obligation to hear the blessing, therefore she cannot recite the blessing so that the congregation may fulfill its obligation. The Ran himself solves the problem by saying that since the congre­ gation hears the blessing recited by some of the men, their 32

obligation is thus fulfilled. The Shulkhan Arukh states, however, that "women are required to recite the b /rakhot

[blessings] to the Torah" (Orah Hayim 47:14).

We learn from different sources that in the talmudic period women were permitted to have the privilege of an aliya for a number of centuries. However, the sages adopted the principle that "Torah scrolls cannot receive impurity"

(Barakhot 22a) and this prohibited women from holding or reading the Torah because women may be impure (niddah). It was not a clear law that prohibited women but a minhaq

(custom). Needless to say, the issue of Torah reading and aliyot for women has been viewed by Jewish feminists as reflecting an expression of women's inferior position in public prayer and perpetuation of Jewish law that makes women second-class members of the Jewish community. Today, reading and aliyot by women are generally accepted in the Reform, Reconstruc­ tionist, and Conservative movements in the United States.

The , however, decided to allow each synagogue to rule according to its own members' wishes. CHAPTER 8

PRAYER

The daily activity of the religious Jew is dominated by

prayer. His day begins and ends with prayer, and his activi­

ties, such as washing his hands, eating, traveling, etc., are

accompanied by special prayers and blessings. Prayer is called avodah shebalev (the service of the heart). It is the

inner and utmost experience in which man bares his soul and communicates with his Creator. Prayer is understood as pour­

ing out one's soul and is so described in the Bible by the story of Hannah: "And Hannah talked [to God] of what was in her heart, only her lips moved and her voice was not heard"

(I Samuel 1:13). Because of the centrality of prayer in a

Jew's life, both women and men are required to pray (Berakhot

20b). The Mishnah says that "women . . . are exempt from the recitation of the Shema and from wearing (phylacter­ ies) and obligated in prayer, mezuza and grace after meals"

Barakhot 20a, b) . The Shulkhan Arukh (Orah Hayim 106:2) says, "Women and slaves, even though they are exempt from reciting the Shema, are obligated in prayer because it is a positive mitzvah which is not time bound." The Talmud

Yerushalmi's interpretation is that each man should ask for mercy by himself. "The reason they [women] are obligated in prayer is that prayer is one's petition to God for mercy.

33 34

One might have u»aintained that since the verse in says

one must pray e^ening, morning/ and afternoon, we might

consider it a t i^ne-bound positive commandment. Therefore,

the Mishnah stata s that b e c a u s e of the aforementioned reason, women are obligated anyway (Meiselman I978/ 131 • ref* to Meir to Rosh Hashana 29a). The rrosefta's conclusion is that since

the nature 0f p r a y er overrides the fact that it is a time- bound positive mitzvah won,en a"d men are equally obligated

to pray daily. Simonides held that "the number of prayers that one recites every day i s not of Torah origin. There­

fore, women are obligated in PraYer' for is a P°sitive commandment whicd1 is not time bound" (Maimonides, Hilkhot

T e f i H ah 1:1-3). The Magen Avraham ( Gumbiner [1635-

83] commentary c*1 the ShulRhgn Arukh) quotes Maimonides in order to try to a *plain why women do not pray at prescribed times:

A PositiVe ®3-tzvah . so wrote Maimonides who held that prayer^is a Scriptural commandment for it is writ­ ten, «anJ w 0 jrship Him with all your heart," etc. Accord­ ing to the s c r i Ptural m-jtzvah it is sufficient to pray once a dav a *id according^0 whatever content he chooses, and therefore women have been accustomed not to pray in a set manner s i nce immediately in the morning around the time of wasn i n g they say some kind of request [as a prayer] and accordina to scriptural law that is suffi­ cient. xnH i t is possible that the rabbis also did not obligate the*" for more than that. (Orah Hayim 106:2)

As we can see, tJaere are two levels to the obligation to pray- The first is of Torah origin which does not require a

fixed time; the ^ ec°nd is Qf rabbinical origin which intro­ duces a set text at s®t times- Hence the rabbinical view 35

that the duty of prayer is a time-bound positive mitzvah from

which women are exempt. Consequently, women's prayer was

viewed as something private and personal and men's prayer as

a "codified formula" (Biale 1984, 20), although later special

prayers or Tehinot for women were composed for special occa­

sions, such as births and weddings.

Another aspect of prayer includes its public dimension.

This occurs in tefillah be-tzibur (prayer in public) and

tefillat ha-zibur (prayer of the public). Prayer in public means that a group of individuals come together in communal

simultaneous prayer. The , for instance, is an indi­ vidual recitation of each congregant which is part of the communal prayer. The Hazan (cantor) repeats the Amidah on behalf of the congregation (Tefillat ha-zibur). This was originally introduced for the benefit of the illiterates who could not pray for themselves. The Talmud regards the commu­ nal prayer as superior to individual prayer. Hence, the requirement of a minyan (a quorum of ten) for certain prayers on certain occasions, among which are the reading of the

Torah and the Haftorah (the prophetic text that accompanies the Torah portion)/ recitation of the and sanctifica­ tion prayers (Kedusha and Berakha), consolation of mourners and the seven blessings of marriage (Biale 1984, 21).

The Halakha does not discuss the possibility of includ­ ing women in a minyan. This issue has been addressed in contemporary literature as part of a demand that women have 36

equal rights in public worship, and today, women do count in minyan in all denominations of Judaism except the orthodox.

According to Rahshi (Rabbi Shlomo Ben , eleventh cen­ tury), women cannot be counted in a minyan because the obli­ gation to pray in a minyan is a mitzvah and it is bound up with the mitzvah of praying in set prayers three times a day, which makes it a time-bound mitzvah. Moshe Heiselman, writ­ ing from an orthodox point of view in his book Jewish Women in Jewish Law, says that

while a woman may participate in public prayer, she cannot be one of the ten comprising the basic prayer unit. This is because women are enjoined to develop the area of private responsibility, and therefore always remain ten individuals rather than a unit of ten members. A minyan, however, is a public unit expressive of the public functioning of the community, and only men, as the public figure, can bind together to form a community. (1978, 135)

Since women are not required to participate in public prayer, they cannot lead in public prayer. This comes under the general rule that only a person who is under an obligation can perform a mitzvah for others who are also under an obli­ gation (Rosh Hashana 29a). For example, if one eats bread and is under the obligation to make a blessing, he can perform it on behalf of those who are also required to make a blessing. However, women are obligated to read Meailat

Esther (the scroll of Esther) on Purim because it is a mitzvah that deals with the miraculous salvation of the Jews by a woman. Women, as well as men, have to participate in the reading. Rabbi Joshua ben Levi said: "Women are under 37

the obligation to read the Megillah since they also profited by the miracle then wrought" (Megillah 4a). Most commenta­ tors, therefore, agree that "women may discharge each other's obligation reading for each other" (Biale 1984, 23). A minority opinion of Rabbenu Nissim (Ran, fourteenth century) argues that women should be counted, therefore, in a minyan which is formed for the purpose of reading the Megillah.

Unfortunately, this minority opinion was not generally accepted. Women have been denied the right to be qualified for a minyan not only for the reading of the Megillah but also for the regular prayers.

Today, great changes are occurring in this whole area.

The Reconstructionist, Reform, and Conservative movements allow women to be cantors and rabbis, but the Conservative movement is split over the issue of counting women in the minyan. The Reform and Reconstructionist movements do not require a minyan for a communal prayer, but if they did, women would be allowed. We also see an increasing trend to have adult bnot mitzvah for individual women who want to recapture the religious status denied to them when they were growing up. The importance of the bat mitzvah ceremony for young girls is being strongly contended within Orthodox circles too, reflecting the growing conflict between the desire to maintain traditions and the need to accommodate the demands of modern times. Consequently, even the Orthodox movement has started to yield to the needs of the young 38

generation and celebrate bat mitzvah in their own way.

Often, a young girl will give a d'var-Torah (a short sermon about a biblical topic). We also see a growing tendency among the radical feminists in the Orthodox communities to have their own religious services, which is halakhically proper. CHAPTER 9

INHERITANCE

According to the Bible, a man cannot bequeath his estate to his daughters, only to his sons. However, from the precedents of Zelophehad's daughters, who asked Moses to be able to inherit, we learn that in the absence of male heirs, daughters can inherit estates, lest their father's name be lost to his clan through the significance of proPertY trans­ fers. We find in the Mishnah that some progressive changes in the law have taken place:

In the case of one who dies and leaves sons and daughters; if the estate is large, the sons inherit and the daughters are maintained from it. if t b e estate is small, the daughters are maintained from it ant* *-be sons shall go begging on the doorsteps. (Baba Batra 139b)

The rabbis also provided guidelines for the size a dowry a daughter was to receive. There was a sum which was to be increased progressively according to the fatherfinancial capacity, if the father died before his daughter was married, the court was to decide the amount she would have received and deduct it from the estate before it was divided up among the other heirs. It was to be no less than one- tenth of the father's assets (Ketubot 68a).

Although according to the law women do n o t inherit equally with men, the rabbis enacted laws to mini1®^-26 this gap. They understood an heir's role to be kam tabtav (the

39 40

one who replaces and takes over the father's functions).

This role was to be given to the son. On the other hand, the sons could go out and earn a living and a women could not.

Therefore, she was to be provided for and supported: "As far as inheritance goes, a son is preferable, as far as harvaha

[support, gift] a daughter is preferable" (Baba Batra 141a). CHAPTER 10

NIDDAH AND ONAH

The laws of niddah in Leviticus state that when a woman

has a menstrual discharge of blood she is impure for seven

days. Not only is intercourse forbidden during that time,

but sitting where she is sitting or lying in the same bed with her is considered "unclean" (Leviticus 15:23-24). These

laws expressed the view that ritual purity was regarded as a

religious ideal, and was "one of the steps to the spirit of

holiness" (Swindler 1976, 130). The taboo on contact with a menstruating woman is shared by many other cultures, and

probably expressed a fetish or cultic concern about blood,

identified as the life of a person. According to tradition,

the "menstrual cycle represents a combination of physical- psychic elements, a fusion of matter and spirit, of body and

soul" (Brayer 1986, 94).

The laws of niddah are many and complex and deal with

the woman who has a normal discharge of blood (menstruation) and, also, that of the zava (unhealthy discharge of blood).

The time period of her uncleanliness corresponds to the type of the discharge. At the beginning of the talmudic period, the rabbis developed the notion of their having special skills and expertise in examining blood for the purpose of defining whether a woman's bleeding was considered normal or

41 42

abnormal for the sake of the impurity period. Later, how­

ever, it was replaced by letting women rely on their own

restrictions rather than on the examination of an expert

(Niddah 66a). The restrictions on the woman who gives birth

show the difference between the woman who has given birth to

a boy and that who has given birth to a girl. The impurity

period of the woman who has given birth to a son is seven

days plus an additional thirty-three days of purification.

For the birth of a girl, the impurity period includes four­

teen days and then a waiting period of sixty-six days of

purification (Leviticus 12:1-8). In sum, after a girl's birth, a woman is impure for twice the amount of time as for

a boy. The reason for this difference is not explained in the Bible or the Talmud. Some try to explain it as a reflec­ tion of the disappointment of a daughter's birth. Another explanation is that the female will one day menstruate herself and give birth and, therefore, is doubly impure

(Biale 1984, 152).

While the Temple existed in Jerusalem, the niddah laws referred more to the purity of the Temple, or the sphere of public, cultic life. After the destruction of the second

Temple, the laws shifted to the private sphere of family life. The laws of niddah, together with the laws of onah

(days of permitted sex), both regulate the intimacy and sexual activity of a Jewish couple. In the Talmud we find an

interesting passage that refers to the reason for the 43

regulation of niddah:

Rabbi Meir used to say: why did the Torah ordain that the uncleanliness of menstruation should continue for seven days? Because being in constant contact with his wife, a husband might develop a loathing toward her. The Torah, therefore, ordained: "Let her be unclean for seven days in order that she shall be beloved by her husband as at the time of her first entry into the bridal chamber." (Niddah 3lb)

If the issues of niddah prohibit contact on certain days, the laws of onah regulate the conjugal obligation of sexual relations. The mitzvah of onah is found in the Bible

(Exodus 21:10), where it states that the husband's obligation is to give his wife her basic necessities in life: sh'er, ksut, and onah (food, clothing, and sexual rights). The

Talmud calls the deprivation of sexual rights a tzara d'qufa

(a personal hardship) (Yevamot 118b, Ketubot 56a, Kiddushin

19b). The law respects the woman's privilege to deny marital relations to her husband; however, she is called a "rebel­ lious" wife if she does so without any valid reason. If a woman, in a prenuptial agreement, renounces her rights of onah, it is not recognized, while her renouncing the rights of clothing and food may stand (Feldman 1975, 61). Further­ more, if a man takes a vow to deny his wife her conjugal pleasure, his vow is null and void, because he acts against the biblical commandments. If he takes a vow to deny himself the pleasure, his vow is valid, but a time limit is imposed

(Ketubot 61b).

The laws of marital relationship, as well as purity and 44 procreation, were meant to ensure a regular cycle of intimate relationship that would contribute to a life of holiness in accordance with the mitzvot. Niddah is the exclusive mitzva of a wife, while onah is the exclusive mitzva of a husband. CHAPTER 11

MARRIAGE AND DIVORCE

Marriage

Marriage and divorce are viewed in Jewish law as constituting contracts. :13 implies that the man initiates the contract. He is the one who "takes a wife." The Talmud explains man's initiative as follows:

"Why is it that the Torah gave the initiative to the man rather than to the woman? For it is the nature of a man to be active in the pursuit of a wife rather than for a woman to

Pursue a husband" (Kiddushin 2b). The Talmud proceeds to say that man seeks out a wife because of his need of self­ completeness and fulfillment (Meiselman 1978, 99). The Bible does not provide us with detailed legislation about marriage.

Consequently, the postbiblical Halakha is based on the interpretation of the biblical text. Based on the words of

"a man takes a wife/" the Halakha refers to wives as being

"required." In (tractate) Kiddushin (betrothal), the Mishnah says; "A woman is acquired in three ways and acquires herself in two. She is acquired by money, by deed,

°r by intercourse . • • and she acquires herself by divorce or by the death of her husband" (Kiddushin 2a-b). when the

Mishnah refers to the sum of money needed to acquire a wife, the amount is minimal/ because the law wants to emphasize

45 46

that the amount is only symbolic. The acquisition by money

shows that the husband has set his wife aside and interdicted

her to all other men (Biale 1984, 48). She is forbidden to have sexual relationships with other men, or to be married to

other husbands. The husband, however, is permitted to marry other wives. Although the Halakha permitted polygamy, it was not usually practiced, especially under Christian rule. It was later formally forbidden by a punitive herein (writ of excommunication) by Rabbenu Gershom in the eleventh century.

The marriage contract is called the . Written in Hebrew and Aramaic, it specifies the husband's obligations to his wife during the marriage, to the possible widow, and in the event of divorce. The ketubah consists of three parts: ikar ketubah (obligations), tosefet (the supplemen­ tary divorce settlement), and the nedunyah (the dowry which the wife had brought to the marriage) (Brayer 1986, 66). The husband's obligations are to provide the wife with food, shelter, clothing, ransom if necessary, medical care, burial, and onah (regular marital relations). After his death, she was to continue to live in his house and be supported from his estate (Mishnah Ketubot 4:12). The ketubah also ensured that the wife may retain at the end of the marriage the assets she brought into the marriage, and she is also promised a lump sum payment upon termination of the marriage or upon her remarriage (Bat Kol 1987, 17). in return, the wife has to perform the following act: "grinding flour and 47

baking bread and washing clothes and cooking food and giving

suck to her child, and making his bed and working the wool”

(Ketubah 5:5). In commenting on this passage, the Talmud

added: "Fill his cup for him . . ., wash his face, hands and

feet" (B'khorot, see Swindler 1976, 143).

The ketubah was instituted to impede a man from divorc­

ing his wife on a whim, in order to protect a woman from

being an Agunah, ways were formed to admit practices that

normally would have been invalid. In certain cases, mar­

riages could be annulled because a husband has espoused his wife in an objectionable manner. A husband who beat his wife was twice warned by the court and then forced to divorce his wife out of his free will (Berkovits 1983, 101). The rabbis, feeling compassion for women, made it clear that the bride has to agree to her own betrothal (Gemara in Kiddushin 2a), although we do not know if in practice parents took into consideration their daughters' wishes. Marriages were usually arranged in fact by parents and often women married at a very young age.

Although marriage is viewed as constituting a contract in Jewish law, it also has a deeper meaning in Jewish life.

"Marriage is more than a physical, natural, or socially legal union. It is a sacred relationship between husband and wife sanctioned by God Himself" (Brayer 1986, 57). The very term of Kiddushin in Hebrew (sanctification) to describe betrothal denotes the sanctity of such a union. The Talmud says, 48

"Banned by heaven is a Jew who has no wife and he who has a wife but wants no children" (Pesahim 136b). The sages expressed their view about the importance of marriage and condemned celibacy:

When a bachelor attains the age of twenty and is still unmarried, he incurs God's displeasure, for all his days are spent in sinful thoughts, it is, therefore, to avoid such Divine discontent that one is advised, ideally, to marry at eighteen. (Kiddushin 29b, Avot 5:21)

The entire thrust of rabbinic legislation with respect to marriage can be viewed as the attempt to prevent abuses of a dependent wife in areas such as quality and standard of life, protection of her assets, and her ability to remarry.

Divorce

If a woman's role is passive in effecting a marriage, it is even more so in bringing about its dissolution by divorce. As a contract akin to marriage, divorce is unilateral. The husband initiates the divorce, just as he initiated the bond.

Jewish law contains no prohibition against divorce, nor do we find in the Bible detailed legislation or an account of the divorce procedures. The Bible refers only to a specific case (Deuteronomy 24) in which a husband who had found some matter of indecency about his wife and had written her a bill of divorcement cannot remarry her once she leaves his house, or marries another man, or later divorces him and is free again. The Bible considers this "husband swapping," an 49 abomination.

The Mishnah stresses the legislation and importance of the get (divorce) as a powerful tool that releases the woman from her husband and enables her to marry another man (Gittin

85a-b). Unlike the marriage contract, which does not require detailed procedures, there are many legal requirements that stand in the way of a man who wishes to divorce his wife.

The reason for that is to protect the wife and ensure that she is, at least, provided for financially in accordance with the provisions in the ketubah. The consent of the woman in divorce, however, was not at first required. Later, the takanah of Rabbenu Gershom in the eleventh century made it necessary for the husband to obtain his wife's consent.

The Babylonian Talmud specifies certain conditions that enable a woman to initiate a divorce by appealing to a bet- din (court). The conditions are

1. The husband is afflicted with an illness or an

occupation that makes it endurable for the wife

(Ketubot 77a)

2. The husband violates or neglects his marital obli­

gations (Ketubot 77a)

3. The absence of sexual compatibility (Ketubot 63b)

The meaning of these conditions is disputed at great length in the Halakha. There are discussions about sexual relations, wife-beating, a rebellious wife, etc., that deter­ mine the grounds on which a bet-din can compel a husband to 50 divorce his wife. Unfortunately, despite these conditions, the initiation of a divorce still remains within the hus­ band's power. Ironically, today's more open societies have worked to the disadvantage of the Jewish woman who wants to bring suit for divorce. In the closed, relatively autonomous

Jewish communities of the past, religious authorities could level sanctions against a recalcitrant husband. Today, this is less likely because the rabbinical courts (outside of

Israel) have authority only over those people who voluntarily submit themselves to its dictates. Some contemporary rabbis fail to use precedents and to acknowledge that past improve­ ments in divorce law are but part of a continuing process.

This indicates that these rabbis are guided by principles of sexism and hierarchy rather than that of equality between male and female (Greenberg 1981, 135). Sadly, access to divorce remains open to abuse by angry or punitive husbands who either refuse to write a get or use a wife's desire for one to extract money or other concessions.

We see today an anomaly which is the consequence of the tension existing between the civil and the religious systems of law. It is possible for a woman to obtain a civil divorce and be considered divorced under the law of the land without being free to remarry under Jewish law because of the refusal of her husband to give a get and the inability of the Jewish court to compel him to do so. The Reform and Reconstruction­ ist movements solved the problem by renouncing the need for a 51 get and by accepting a secular divorce as a valid termination of a Jewish marriage. The Conservative movement approached the problem by introducing a prenuptial agreement as part of the ketubah. It declares that the bride and bridegroom can agree, in the event of the civil dissolution of their mar­ riage, to recognize the bet-din of the Rabbinical Assembly and the Jewish Theological Seminary as having the authority to counsel them and to summon either party at the request of the other for the purpose of effecting a valid Jewish divorce

(Bat Kol 1987, 32). Orthodoxy remains divided over the acceptance of any prenuptial agreement, even one written in a document separate from the ketubah. They do, however# accept the halakhic approach that if a hundred rabbis sign a docu­ ment of divorce, it is effective even though the husband refuses to give a get. Because of the position of orthodoxy on a prenuptial agreement, the problem of the Agunah (the

Agunah will be discussed in the next chapter) in the Orthodox community is much more severe than the other communities in the case of those women who are "anchored" to unwanted mar­ riages and are totally dependent upon the good will o f their husbands to obtain a get. CHAPTER 12

AGUNAH AND YEVAMAH

Agunah

The most tragic figure halakhically is the situation of the Agunah (the anchored or deserted woman). The Agunah

(from the word ogen, meaning an anchor) is a woman who is considered legally married by the law although, in fact, her marriage has either been terminated and she is not free to marry another man. In reality, therefore, she is neither married nor unmarried. A woman can be left "anchored under one of these conditions:

1. The husband abandons his wife and disappears

2. The husband dies but there is no valid proof of his

death

3. The husband r e f u s e s to grant his wife a divorce

although, in fact, the couple does not live

together

4. The husband is legally incompetent to grant a

divorce (as in insanity)

5. A woman becomes a Yevamah (a widow with no chil­

dren) and the levir (dead husband's brother)

refuses either to marry her or to grant her

halitzah, or his whereabouts are not known, or he

52 53

is an apostate (Biale 1984, 102)

The Bible addresses the law of ibum and halitzah (which will be explained later), but does not treat the problem of the Agunah. The Halakha, however, has given a great deal of thought to the problem and tried to find ways to free the

Agunah from her tragic situation. On one hand, the rabbis wanted to enable the Agunah to be free to marry. On the other hand, however, they had to employ considerable precau­ tions so as not to allow a situation resulting in an adulter­ ous marriage if the first husband suddenly appeared. In that case the law required that the woman divorce her second husband; her children would be mamzerim (bastards); and, furthermore, she would not be permitted to return to her first husband. The need to solve the problem of the Agunah was even more accentuated in the case of the disappearance or death of a husband. It was felt that the quicker one tried to locate a disappeared husband or witnesses to his death, the better were the chances of success. As time lapsed it became increasingly difficult to find a way to free the

Agunah. In order to facilitate the bringing of evidence, the court accepted the testimony of a woman or a minor, which normally had been denied. For purposes of admitting an evidence for a husband's death, the Halakha accepted the testimony of only one witness instead of the usually two.

The wife herself was also regarded as a legitimate witness

(Biale 1984, 105). Although the rabbis relaxed the 54

requirements for witnesses, they were extremely cautious about insisting on direct proof of death. In the Mishnah

(Ketubot 9b) we find a suggestion that under wartime condi­ tions the husband might give his wife a contingent writ of divorce in order to protect her in case he were killed and there were no witnesses.

Different solutions have been suggested to prevent the threat of becoming an Agunah. Some suggestions raise differ­ ent legal questions, as in the case of a conditional get

(divorce), but they were all rejected. Today, women who face the problem of Aginut (being an Agunah) because their husbands refuse to grant them a get usually look for a solu­ tion outside the Jewish law and get remarried by civil law.

Another far-reaching solution would be to enact a takanah that will change the nature of the male-centered get and enable the court to grant a divorce when the husband refuses to do so. Currently, the hands of the courts are tied in the case of a husband who refuses to grant a get and sometimes uses it as a tool against his wife (Schneider 1984, 358). In

Israel, in order to help the survivors of and war widows, the rabbis have arranged releases for many Agunot on the basis of technicalities which permitted annulments, or on the ground that a man could be presumed to be dead if he were sent directly to a death camp. 55

Yevamah

The law of Ibum (levirate marriage) is biblical and refers to the widow of a man who died childless. If the former husband is survived by a brother, he must either marry her or release her by means of halitzah (a ceremony symbol­ ized by taking off one's shoe). If the levir (yabam) does neither of the two, the woman becomes an Agunah. If the widow marries her husband's brother, their first son will bear the name of the deceased so that "his name may not be blotted out in Israel" (Deuteronomy 25:5-10). When the brother refuses to marry her, the widow "shall go up to him in the presence of the elders, pull the sandal off his foot, spit in his face, and make this declaration, 'thus shall be done to the man who will not build up his brother's house'"

(Deuteronomy 25:10). This ceremony is called halitzah and is the release given by the levir to the widow so that she can remarry. However, the ceremony was meant to be an act of humiliation of the levir because he chose not to fulfill his obligation. Although the biblical law clearly shows that ibum is a mitzvah and halitzah is a shameful act, the Talmud disputes the matter:

The mitzvah of ibum supersedes the mitzvah of halitzah. This was the case at first when the intention was to fulfill the mitzvah. But now that people's intentions are not the fulfillment of the mitzvah, the sages said that the mitzvah of halitzah supersedes the mitzvah of ibum. (Bekhorot 13a)

The posttalmudic Halakha tended to prefer halitzah over ibum, especially in the Ashkenazi tradition. Sephardic Jews viewed 56

ibum as a respectful act in memory of a deceased, childless brother, in Israel, the Rabbinate followed the Ashkenazi tradition and ruled against ibum. In fact, a court can compel an insistent levir to perform halitzah with the threat of imprisonment (see Biale 1984, 117). CHAPTER 13

WOMEN1 ^ ORDINATION

This review of the literature shows that the role of women has evolved from essentially secondary to a much more positive, accepted, and individual responsibility. ^ appre­ ciation of this background is important today because of the controversy within Judaism over the acceptability of tfomen to the full-fledged position o f members of the Rabbinate. The arguments pro and con are summarized below.

Although the issue of women's ordination has become more prominent in the last decade, it surfaced as early as the turn of this century. In 1902 Henrietta Szold, the gifted daughter of Rabbi Benjamin Szold of Baltimore, pursued advanced in the Jewish Theological Seminary in

New York. The first modern female Jewish rabbi was a German named Regina Jonas, who was admitted to the rabbinicax seminary for German-styie in the mia-i^Os.

Although the seminary refused to ordain her, she was later privately ordained by a rabbi in Offenbach and served as rabbi in several social service agencies until she was Killed by the Nazis in 1940. The issue came up again in America in that same decade, when Helen Levinthal sought ordination at the Jewish Institute of Religion in New York. The SeminarY had been founded by Rabbi Stephen S. Wise as a

57 58

"nondenominational" seminary to train rabbis for all branches of American Judaism (Seymore 1977, 7). Although the majority of the faculty favored her ordination, she was rejected.

Women's hopes for ordination began to materialize in the 1960s. The Hebrew Union College in Cincinnati and New

York, and the Reconstructionist Rabbinical College in

Philadelphia, began to admit women to their rabbinical programs. The first woman rabbi in the United States, Sally

J. Priesand, was ordained in 1972. In 1974, Rabbi Sandy

Sasso was ordained as the first Reconstructionist woman rabbi. IN 1983 the JTS decided to admit women to its rabbin­ ical school for ordination as Conservative rabbis. The Final

Report, prepared by a special committee that was appointed to study the issue and make a recommendation on women rabbis, was presented to the Rabbinical Assembly in 1979. It stated that "there is no direct halakhic objection to the acts of training and ordaining a woman to be a rabbi, preacher, or teacher in Israel" (Final Report 1979, 19).

The ordination of women did not come about without a tremendous amount of pressure and struggle. Many people, although agreeing that women should be permitted to have aliyot or read Torah, rejected the idea of having a woman rabbi. The rejection stemmed, mainly, from personal feelings and emotions in that they were comfortable with the familiar and afraid of changes. As the late Rabbi Isaac Klein said:

"Die kop zogt yo, aber die hartz lost nisht" ("The head says 59 yes, but the heart does not permit") (Perlmutter and Novak

1983, 12).

Opponents of women's ordination maintain that Judaism, within the context of Jewish tradition, is not an egalitarian tradition, but rather a tradition that makes very clear and definite distinctions between the roles of various persons, including the roles of men and women. Furthermore, men and women are to fulfill very different roles as Jews living according to the law of the Torah. This distinction is one facet of Jewish particularism. God and the Jewish people entered into a covenant that is not voluntary, seen from the human position. Furthermore, being a Jew is not a voluntary status. God as the creator chose one universe, one species, to be his image, and one people, Israel, to receive the

Torah. He also chose men, not women, to be authorities in a society governed by the Torah. This is a particularism of

Jewish sexism, like other particularisms as the dietary laws, the Sabbath, and the (Perlmutter and Novak

1983, 43).

Feminism, say the opponents, is a contemporary ideol­ ogy that opposes the entire Jewish tradition. Feminists demand absolute equality between men and women as a moral imperative in religious life, but no such egalitarian com­ mandment can be found in normative Jewish tradition. Femi­ nism is a revolutionary trend, and since revolutionaries always seek a radical change in the existing authority, their 60 demands are therefore a radical change of the tradition.

The ordination of women is a major achievement for women in this century, especially within the Conservative movement. As mentioned in a previous chapter, the Conserva­ tive movement views Halakha as binding but open to changes.

On the other hand, it also permits the individual congrega­ tions to decide whether women can be counted in a minyan. have aliyot, or read Torah. Thus, in making the decision to ordain women for the rabbinate, it was important to redefine the role of a rabbi in our times.

There is no specific halakhic category which can be identified today with the modern rabbinate because the role of a rabbi (literally, a teacher) today has undergone a transformation from talmudic times and has evolved through social needs and customs. The title "rabbi" today bears the

"oldest honorific designation in continuous use in human history. It is far older than any honorary degree of academic distinction in vogue today" (Gordis 1980, 25). The functions of a rabbi today are, primarily, to be a spiritual guide and a teacher for the community, and are not bound by a person's sex. The Halakha never dealt with the question of the ordination of women because the past generations, with their distinct realities, never considered the possibility.

Some opponents of the idea of women rabbis confuse the rabbinate with the priesthood. In the time of the First and

Second Temples, the priests served as the religious leaders 61 of the Jewish faith. As the traditional descendants of

Aaron, they had special privileges, such as performing sacri­ fices and determining purity (Seymore 1977, 50). when the

Second Temple was destroyed, the synagogue emerged as the central institution of Judaism, and the rabbi as a leader.

The status of a priest was hereditary and limited to the male members of the priestly family. A rabbi is not necessarily a member of a priestly family, and today does not represent the ancient priesthood. No one can claim today that women are inferior either by divine fiat or by nature.

Another argument against the ordination of women is that women cannot serve as shaliah tzibur (the messenger of the congregation). Because women are exempt from the obliga­ tion to pray, they cannot fulfill the obligation of others, because only the one who is obligated can fulfill the obliga­ tion of others. According to this view, women cannot serve as rabbis because one of the regular functions of a rabbi is to lead the services. However, the historic function of the shaliah tzibur has changed. It is no longer fulfilling the obligation of others, but making sure that the congregation prays together. Furthermore, the cantor, and not the rabbi, leads the prayer service. Because a woman is certainly not forbidden to pray, there is no reason why she could not read prayers or supplement the service, which is what a rabbi does today.

Although the decision to ordain women took place a 62 number of years ago, the idea of a woman rabbi may still take some time to get used to. Today, a growing number of women serve as congregational rabbis, community directors, and other functions. Eventually, women rabbis will become just another tradition, and one which shows that women's wish to equal rights in religion is not just a fad or a whim. It is the sincere expression of human beings who are fully capable of assuming responsibilities regardless of sexual differ­ ences. Moreover, in the light of a real shortage of dedi­ cated, knowledgeable, and trained personnel in Jewish religious life, the survival of many small communities is greatly at stake. Women rabbis, therefore, will be a signif­ icant addition to scarce human resources. CHAPTER 14

EPILOGUE

The essence of this paper is to r e v i e w and examine the

status o f women in Jewish law. The pri»ary source of law

which established the norms is the Bibl®* Secondary sources

developed and expanded the law to meet the needs of changing

realities *

For a millennium and a half the Jewish people lived in

their own land in conformity with their political and ethical

principles* For about two more m i n ennia they were forced to

live in exile among the nations. order to survive, and at

the same time maintain their special identify, they had to

adjust t o new situations by accepting new trends and customs while re3ectin9 others. An evolution of thinking and change within t h e society in which they liVe(j bad an impact on the

Jewish community. Hence, a gradual liberalization of women

in genera^ brought an evolution of thinking within the

Halakha. Ob^ioosly, problems still persist within the Jewish community today. There are still some areas, such as divorce and its implications, that need to be corrected. Also,

Orthodoxy has tenaciously clung to traditional forms and has been reluctant to bring about any substantial change in the status of women. The Conservative movement Has allowed for

63 64

change, although its various congregations are split over the issue of how much change they can tolerate. The fact remains that while many Jewish women enjoy much freedom in the secu­ lar and religious spheres, they face inequality and a reluc­ tance to bring about change that still persist among the religious leaders of the Jewish community. BIBLIOGRAPHY

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Berman, Saul. (1973). The status of women in halakhic Judaism. Tradition 14 (Fall): 5-28.

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Gordis, Robert. 1980. To ordination of women. Midstream (August-September): 25-32.

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