Some thoughts on the nature of halakhic adjudication: women and minyan

PROFESSOR MICHAEL BROYDE IS RIGHT. Jewish law is and was sexist: it does not extend to women the same opportunities for spiritual expression and public leadership as it does to men. For the last five centuries, at least, key Jewish codes have excluded women from joining in the prayer quorum and serving as its leader. For Broyde, making this valid observation is sufficient. For me, the fact of women's ritual restrictions is only a starting point. My aim in this article is to extend an invitation to the halakhic and scholarly community to re-examine contemporary synagogue practices in the light of classical Jewish texts.

As far as I can determine, most of the recently published articles and books on the topic of women and prayer reach (or assume) the same conclusion: not only may women not join a men's minyan (quorum) or serve as sheliah zibbur (prayer leader), they may not even form a minyan of their own.(1) The authors of this literature generally adopt a similar strategy: they marshal an extensive array of sources to show that Jewish law today places significant restrictions on women, and then suggest, either implicitly or explicitly, that this is how it must continue to be in the future, with, perhaps, minor modifications.(2)

I propose to do something entirely different. In response to the reasonable request of many observant women today to find a text-based, halakhic way to increase their opportunities for participation in public worship, I plan not to re-affirm the status quo but to investigate its textual underpinnings. I want to find out if the classical texts necessarily prescribe significant limitations on women's public participation in ritual, or if they may provide the basis to arrive at a different conclusion altogether, that women's participation today is permissible and possibly encouraged. Since most halakhic decision-making is based on a proposed, reasonable, particular interpretation of Talmudic sources, I will examine the texts in question from fresh perspectives, with the hope of finding alternate, yet valid ways of interpreting them. If studies of this sort proliferate, they may someday serve as the basis for a responsum supporting increased options for women to participate in, and also lead, synagogue ritual.

A. Women and Public Prayer

Broyde's essential point is that women are not obligated to public prayer and hence cannot serve as prayer leader. That is, he accepts my contention that, according to the codes, women are obligated to pray,(3) and that the obligation to pray is a necessary but not a sufficient condition for serving as sheliah zibbur, but asserts that there is yet another necessary but not sufficient condition: the obligation to pray in a minyan. Men are so obligated; women are not.

This is not a correct reading of the sources. If we consult the Talmud, the first work to speak of prayer as a regular ritual, we find numerous statements about the frequency of prayer, its time parameters and its contents. We also find a vision of ideal prayer as taking place in a group setting, with one person reciting the blessings for others who neither know the words nor have a text. Several pages in tractate Berakhot (6a-8b) speak of the benefits of praying together with others in a synagogue, suggesting, among other things, that communal petitions cannot be ignored by God. But nowhere does the Talmud state that a Jew has to pray with others; all that is required is to pray several times daily.

Furthermore, upon opening the Shulhan Arukh to OH 55, as recommended by Broyde, I find no statement about the obligation to public prayer, only that a minyan is composed of ten adult, free, males.(4) To this statement I will return shortly. But, when I turn to OH 90, also referred to by Broyde, I find the following rule: "A person should make every effort (yishtadel) to attend services in a synagogue with a quorum; if circumstances prevent him from doing so, he should pray, wherever he is, at the same time that the synagogue service takes place" (90:9). "Every effort" is not synonymous with absolute obligation. Communal prayer is a preferred option, for reasons already made clear in the Talmud, but it is not a requirement.(5)

It is therefore incorrect to conclude that to serve as a prayer leader it is necessary to have an obligation to pray in a minyan, and since women do not have such an obligation, they cannot serve as prayer leader. No Jew, according to Karo, has an obligation to public prayer.(6)

B. Women and Minyan

A different challenge to my article, raised, in particular, by Dr. Joel B. Wolowelsky, is: if a woman does not count in a minyan, how can she be deputized to lead the minyan in prayer? If we assume that the only ones who may lead the minyan are those who count in it (an assumption that requires proof and further study), then, even if we were to set aside other issues, like k'vod hazibbur (dignity of the congregation), unless women count in a minyan they cannot lead it in prayer. As noted above, Karo's Shulhan Arukh (OH 55:1), apparently for the first time in halakhic history, limits the prayer minyan to men only.(7)