Not only do you receive the Divine Presence in the synagogue but you depart therefrom laden with blessings.
DEVARIM RABBAH VII, 2.
It is popularly assumed that the synagogue emerged as a communal institution only subsequent to the destruction of the Temple. It is quite true that the synagogue is often referred to as a mikdash me'at, a miniature Temple, but such reference does not connote that the synagogue is merely a replica of, or a replacement for, the Temple which once stood in Jerusalem. Prayer does, indeed, serve as a substitute for the sacrificial order—"Let our lips compensate for bullocks" (Hos. 14:3)—and the formal order of prayer followed today is patterned after the sacrificial ritulal. However, prayer constitutes a mizvah in and of itself, regardless of whether or not sacrifices are concomitantly offered in the Temple.
Prayer, fundamentally, is an expression of man's dependence upon God; communal prayer is an acknowledgment of the dependence of society as well as of the dependence of the individual. Both individually and collectively, men have expressed themselves in prayer to God since time immemorial. One may readily assume that even in antiquity people gathered together in specially designated places for purposes of communal prayer. Sacrificial offerings certainly did not obviate the necessity for prayer. In fact, the Mishnah, in several instances (Yoma VII: 1 and Sotah VII:7–8), makes specific references to a synagogue which existed within the confines of the Temple itself. Priests and Levites who participated in the Temple ritual, as well as Israelites who brought offerings, had need of a synagogue in which to offer prayer and, accordingly, a synagogue was erected on the Temple Mount in order to accommodate their needs. The author of the Jerusalem Targum certainly viewed the synagogue as being ancient in origin. This Aramaic translation of the Bible, dating from the tannaitic period, speaks of the existence of synagogues as early as the time of Moses (Exod. 18:20 and I Chron. 16:39).
In their discussion of matters pertaining to the sanctity of the synagogue, rabbinic scholars view the laws and regulations pertaining to the Temple as the paradigm from which may be derived halakhot applicable to the "miniature Temple," i.e., the synagogue. Both are devoted to divine service: the Temple is consecrated to sacrificial service; the synagogue is dedicated to "service of the heart." Both the Temple and the synagogue derive their sanctity from the service for which they are utilized. Noteworthy is the opinion of Mordekhai, Megillah 28a, who equates the sanctity of the synagogue with that of the Temple and asserts that both are biblical in nature. It has been suggested that this is the position of Maimonides as well.1Rabbi David Ochs, in a responsum included in The Sanctity of the Synagogue, ed. Baruch Litvin (New York, 1959), pp. 179–80. See also R. Raphael Silber, Marpe la-Nefesh, I, no. 45. Cf., however, R. Chaim Halberstam, Divrei Ḥayyim, I, no. 3. In his Sefer ha-Mizvot, negative precept 65, Maimonides states, "[We are commanded] not to destroy the Temple, synagogues, or houses of study … for it is stated, 'You shall surely destroy all the places wherein the nations … served their gods … you shall not do so unto the Lord, your God' (Deut. 12:2–4)." According to Maimonides, the Bible legislates against desecration of the synagogue. In doing so, the Bible itself ordains the sanctity of the synagogue.
In our own day, no less than in past generations, rabbinic authorities are zealous in their endeavors to preserve inviolate the sanctity of the synagogue. They recognize that the very edifice, as well as the rituals performed therein are imbued with holiness. Accordingly, every question pertaining to the synagogue is viewed with the utmost gravity. At stake is not simply a matter of ritual law but the preservation of a sanctity of the highest order.
Apartments over a Synagogue
Characteristic of the contemporary urban scene is the proliferation of high-rise apartment dwellings of skyscraper proportions. The scarcity of potential construction sites in metropolitan areas forces real estate developers to build the maximum number of stories on available lots. The exorbitant price of land, coupled with rising construction costs, presents a formidable financial obstacle to metropolitan residents seeking to erect new houses of worship and educational facilities. As one means of ameliorating the situation, it has been proposed that schools and houses of worship be constructed on the ground floor with apartment units on higher levels. Proceeds derived from the sale of air rights for development purposes serve to defray the construction costs of these communal institutions.
There are, however, a number of halakhic considerations which call into question the propriety of such an arrangement. The very erection of an edifice towering above the synagogue presents a problem since Shulḥan Arukh, Oraḥ Hayyim 150:2, records that a synagogue should be built upon the most elevated site in the city and that no dwelling should rise higher than the synagogue structure. Rema, however, notes that an exception may be made in case of need or in face of a government edict forbidding the preferred mode of construction.
The construction of apartment dwellings above the synagogue proper poses a more serious problem. Oraḥ Hayyim 151:12 rules that it is forbidden to sleep upon the roof of a synagogue and expresses doubt with regard to the propriety of utilizing the roof for secular purposes. Mordekhai, Shabbat 1:228, quoting Maharam of Rothenburg, asserts unequivocally that the roof of a synagogue is imbued with sanctity and should not be used for mundane pursuits, just as the roof of the Temple was sacred and could not be profaned by such use. There is also the well-known autobiographical comment of Taz, Oraḥ Hayyim 151:4, in which that authority recalls, "In my younger years I dwelt with my family in Cracow in my house of study, which was above the synagogue; I was greatly punished through the death of my children and I attributed it to this fact." These sources notwithstanding, the construction of dwellings above a synagogue is not uncommon. In an article published in the Tishri 5732 issue of Ha-Darom, Rabbi Samuel Hubner analyzes the various factors involved and cites the following authorities and their reasons for affirming this practice:2See also R. Yitzchak Ya‘akov Weisz, Minḥat Yiẓḥak, II, no. 48, and III, no. 120.
1. Chida, Hayyim Sha'al, Oraḥ Hayyim, no. 56, draws a sharp distinction between a roof and an attic or upper story. Chida argues that early references to restrictions upon the use of the synagogue carefully employ the term "roof" rather than "attic." Unseemly use of an exposed roof of a synagogue in public view constitutes disrespectful behavior vis-à-vis the synagogue; the selfsame activity taking place in the privacy of a walled enclosure does not constitute unseemly conduct. This distinction is also drawn by Mishneh Berurah, Bi'ur Halakhah 151.
2. In the same discussion, Chida cites a responsum by Rambam, Pe'er ha-Dor, no. 74, in which the latter states that the prohibition against sleeping on a synagogue roof is limited to the section of the roof or attic directly above the Ark. According to Rambam, only that section is deemed to be imbued with a sanctity analagous to that of the Temple site. On the basis of this opinion, which is accepted as authoritative by Mishneh Berurah 151:40, apartments above a synagogue may be used for dwelling purposes provided care is taken not to place the beds directly above the Ark. Some scholars maintain that even this limitation applies solely to the story directly above the Ark but not to higher floors.
3. Maharit, II, Yoreh De'ah, no. 4, and Ẓelaḥ, Pesaḥim 86a, rule that the roof of a synagogue is sacred only if the roof opens directly into the synagogue. A roof lacking such an aperture does not acquire the sanctity of a synagogue and may therefore be used for secular purposes.
4. Taz, Oraḥ Hayyim 151:4, argues that apartments above a synagogue may be used for dwelling purposes provided that both the synagogue and the apartments are erected simultaneously. Under such circumstances the synagogue roof is originally intended to serve as the floor of the apartment rising above the synagogue and hence the roof never acquires the sanctity of the synagogue structure. Nevertheless, concludes Taz, the synagogue may not be demeaned by utilizing the upper stories for activities such as idol worship or storage of waste.
5. The Sages recognized that since Torah scholars "live" in the house of study, spending the major portion of their days and nights therein, the house of study is in effect their domicile. Hence, Rema, Oraḥ Hayyim 151:1, rules that it is permissible to sleep in a house of study. Eshel Avraham, Oraḥ Hayyim 151:12, concludes that since one may sleep in the house of study itself, a fortiori it is permissible to sleep upon the roof above it. Accordingly, there is no objection to the construction of apartment dwellings above the synagogue, provided that it is stipulated at the time of construction that the sanctity of the edifice be that of a house of study.
6. Divrei Hayyim, I, no. 3, rules that synagogue roofs have no intrinsic sanctity and may be used for secular purposes.
Rabbi Hubner concludes that the serious financial loss involved in rejecting the proposal for the use of air rights above the synagogue in order to construct apartment units constitutes a "grave need" and hence the lenient opinions may be followed.
Prayer from the Bimah
Traditional synagogue architecture provides for a table or stand situated in the center of the sanctuary to be used for the Reading of the Law and for a separate reader's stand located in the front of the synagogue for use by the reader. Recurrent acoustical problems have led many congregations to consider positioning the reader or cantor on the bimah in the center of the synagogue in order to increase audibility. Responsa dealing with the permissibility of this question are examined by Rabbi Moshe Dov Welner, the Chief Rabbi of Ashkelon, in the Heshvan-Kislev and Tevet-Adar 5732 issues of Moriah.3See also Minḥat Yiẓḥak, III, no. 8; and R. Moses Feinstein, Iggrot Mosheh, Oraḥ Ḥayyim, II, no. 28.
The principal objection to this innovation is based, not upon insistence that the reader station himself within a specific area of the sanctuary, but rather upon the fact that the table or stand from which the Torah is read is commonly placed upon a bimah, or platform, which rises above the surrounding floor. Magen Avraham, Oraḥ Hayyim 90:3, notes that in previous times synagogues were designed so that the reader's stand was placed at the lowest point in the sanctuary with the worshippers' pews rising on an incline behind the reader. This feature of synagogue architecture, still retained in some European-style edifices, declares Magen Avraham, is designed to give literal expression to the sentiments recorded by the Psalmist, "From the depths have I called upon You" (Ps. 130:1). It is this custom which is the source of the talmudic idiom which speaks of the reader as "descending before the reader's stand." (See, however, Ma'adanei Yom Tov, Berakhot 10:8.) The rationale advanced by Magen Avraham is clearly applicable to individual worshippers as well. Yet the custom of standing in a low spot while engaged in prayer is limited to the reader alone. The custom arose in this form, explains Ketav Sofer, Oraḥ Hayyim, no. 19, because it is impossible to station all worshippers in a low area. Height and depth are relative concepts; if all pews were to be lowered, the result would be a level area. The reader was singled out and assigned the low position because he serves as the representative of the entire congregation.
Ketav Sofer draws a sharp distinction between stationing the reader in a depressed area, a practice which has largely fallen into disuse, and the innovative positioning of the reader upon an elevated structure. The Gemara, Berakhot 10b, declares: "One should not stand on a high spot and pray, but rather one should stand on a low spot and pray." Ketav Sofer asserts that praying on a low spot is merely a commendable practice preferable to engaging in prayer while standing on a level surface, but that praying from an elevated position is forbidden. Prayer "from the depths" is a manifestation of humility and, while not strictly required, is to be commended; prayer while in a posture of elevation is a sign of arrogance and as such is to be eschewed. "One should not stand on a high spot and pray" is to be understood as a normative prohibition, whereas "one should stand on a low spot and pray" is advocated as an act of piety.
Mikhtav Sofer, II, nos. 1 and 2, presents kabbalistic reasons for various aspects of synagogue design. According to his explanation, the reader's stand symbolizes the golden altar, which was located within the Holy of Holies in front of the Ark. The kohen performed his duties standing on the ground before the altar. Hence, in the synagogue, which is a "miniature Temple," the proper location for the reader's stand is in the front of the synagogue with the reader stationed no higher than floor level.
However, may synagogues beset by acoustical difficulties disregard these considerations? Sukkah 50b relates that Alexandria boasted a synagogue of unparalled proportions which accommodated myriads of people. In a synagogue of such tremendous size, it is quite understandable that the reader could not be heard. In an attempt to ameliorate this situation, there was constructed "a platform of wood in the center and the sexton of the assembly stood upon it with flags in his hands. When the time came to respond 'Amen,' he raised the flag and all the people answered 'Amen.' " The sole innovation seems to have been the placing of the sexton in a central, elevated location with flags to serve as signals. Although the reader's voice was not at all audible to vast numbers of worshippers, no attempt was made to rectify the situation by stationing the reader upon the raised bimah rather than in his traditional position at the front of the synagogue.
There is, however, one authority who does sanction this practice. Referring to the question of having the reader stand in an elevated location, Avudraham writes, "This custom is good, for otherwise they would not hear on account of the multitudes which assemble in the synagogue." Rabbi Welner notes that this permissive ruling applies only to situations in which it is otherwise impossible to hear the reader. It should also be noted that Rambam, Hilkhot Tefilah 5:7, declares that a raised platform, either enclosed by a railing or measuring four ells by four ells in area, is considered to be an independent and separate area and is not deemed to be a "high place."
Another factor enters into the resolution of this question in cases where the congregants seek to change the already established position of the reader from the front of the synagogue to the bimah. Rabbi Waldenberg, Ẓiz Eli'ezer, X, no. 22, contends that the principle governing this situation may be found in the Jerusalem Talmud, Shabbat 12:3, which records that the boards used in the walls surrounding the Tabernacle were not permitted to be transferred from one position to another. Even inanimate objects are endowed by Halakhah with rights and prerogatives with regard to their utilization in the performance of mizvot. Therefore, argues Rabbi Waldenberg, once the reader has been stationed at the lectern in front of the synagogue, his position may not be shifted to the bimah.
Removal of Torah Scrolls
Communal services are usually held on a regular basis in synagogues which permanently house Torah scrolls. Hence on Sabbaths, Holy Days, Mondays and Thursdays, etc., when the reading of the Torah constitutes an integral part of the service, the Torah scroll is simply removed from the Ark and replaced after the reading is concluded. Ordinarily, there is no need to remove the scroll from the building, or even the room, in which it reposes permanently. However, situations do arise in which it is necessary or desirable to hold services elsewhere, e.g., in the house of a mourner or for the benefit of a sick person unable to attend services in the synagogue. May the Torah scroll be removed from its usual location and transported to a different site in order to accord those unable to worship in the synagogue the opportunity of participating in the reading of the Torah? This question is discussed by Rabbi Kasriel Tchursh, a member of Israel's Chief Rabbinate Council, in the 5734 issue of Halikhot. Halikhot is a periodical published by the Religious Council of the municipality of Tel Aviv and regularly features a department devoted to practical aspects of Jewish law.
The Torah scroll must be treated with the highest degree of dignity and respect. Thus, in general, the temporary removal of a Torah scroll is deemed to be incompatible with the honor demanded by its sacred character. Shulḥan Arukh, Oraḥ Hayyim 135:14, declares that it is not permissible to transport a Torah scroll to a prison for the benefit of Jewish inmates even on such solemn occasions as Rosh Hashanah and Yom Kippur. Rema modifies this ruling by stating that this restriction applies only to situations in which the scroll is to be transported merely for the brief period of the Torah reading and returned immediately thereafter. Rema states that there is no objection to the removal of the scroll if the Torah is transported "a day or two days" earlier. Arukh ha-Shulḥan, Oraḥ Hayyim 135:32, observes that Rema's modification has been somewhat narrowed in terms of custom and practice. Custom permits transportation of a Torah scroll only upon fulfillment of two conditions: (1) prior preparation of an ark, closet, or other suitable place in which the scroll may be housed; (2) utilization of the scroll for purposes of public reading at the new location on at least three occasions before its return.4Cf., however, R. Shabbetai Lifshitz, Sha‘arei Raḥamim (commentary on R. Ephraim Zalman Margolies’ Sha‘arei Ephraim) 9:22. It is in order to meet the latter requirement that it has become customary to conduct minḥah services on Shabbat afternoon in the house of a mourner for whose use a Torah scroll has been provided. In the normal course of events there are usually only two occasions during the period of mourning at which the Torah would be read in the home of the mourner, viz. Monday and Thursday mornings. Hence, even though the mourner is permitted to attend services in the synagogue on Shabbat, one service is conducted in the mourner's home in order to afford the opportunity of reading from the Torah scroll a third time.
Rabbi Avraham David Wahrman (Rav of Butshatch), Eshel Avraham, Oraḥ Hayyim 135:14, cites earlier authorities who permit the transportation of a Torah scroll even when these conditions are not satisfied, provided that the Torah scroll is accompanied by ten individuals, "for wherever there are ten, there rests the Divine Presence." This authority adds that the ten person must not merely accompany the Torah but must actually encircle the scroll. Rabbi Techorsh notes that it is customary to permit this procedure only when the scroll is transported to the synagogue courtyard or to another synagogue, but not to a private dwelling.
Mishneh Berurah, Bi'ur Halakhah, Oraḥ Hayyim 135:14, draws a sharp distinction between removal of the Torah scroll for the benefit of an individual worshipper and its removal on behalf of an entire minyan unable to attend services elsewhere. Mishneh Berurah maintains that the restrictions codified by Shulḥan Arukh and Rema apply only to cases in which there are less than ten prison inmates (or other individuals) unable to attend synagogue services. While, of course, the Torah cannot be read other than in the presence of ten people, the minyan may be formed by co-opting other worshippers who agree to pray with the prisoners in order that the latter have a proper quorum for communal prayer and the reading of the Torah. Mishneh Berurah argues that the removal and transportation of the Torah scroll are not freely permitted in such cases only because the individual prisoners, since they themselves do not constitute a minyan, are not obligated to read the Torah even though it is meritorious for them to seek the formation of a minyan in order to do so. However, if the inmates are ten or more in number, there is a binding obligation upon them to engage in the reading of the Torah. This obligation, argues Mishneh Berurah, takes precedence over any other consideration. This distinction is, however, rejected by the prominent Sephardic codifier, Kaf ha-Hayyim, Oraḥ Hayyim 135:73.
Rema, Oraḥ Hayyim 135:14, expresses a further leniency and permits the transportation of a Torah scroll on behalf of a Torah scholar. Although the Shulḥan Arukh disagrees, Rema maintains that the removal of a Torah scroll on behalf of a scholar is in keeping with the honor due the Torah. Eliyahu Rabbah explains that Rema permits the procedure only if the scholar is also a prisoner or an invalid; otherwise, it would indeed be a sign of disrespect to bring the Torah to him instead of the scholar himself going to the synagogue. However, Shemen ha-Ma'or, and apparently also R. Elijah, Gaon of Vilna, understands Rema as permitting the transportation of a Torah scroll on behalf of a scholar under all circumstances. Rabbi Tchursh points out that in any event this would not be permissible for Sephardic Jews who follow the ruling of the Shulḥan Arukh since the latter disagrees with Rema's leniency with regard to scholars.
Thus, in terms of practice, Ashkenazic Jews may follow the rulings of the authorities who permit transportation of a Torah scroll on behalf of a scholar or on behalf of an assemblage of at least ten persons, whereas Oriental Jews, who regard the opinion of Sephardic scholars as definitive, may not rely upon these leniencies. Obviously, the Torah scroll should not be transported other than for purposes of public reading.5See also R. Eliezer Waldenberg, Ẓiẓ Eli’ezer, XI, no. 16, and R. Moses Feinstein, Iggrot Mosheh, Oraḥ Ḥayyim, I, no. 34.
Yissokhor or Yissoskhor?
The Reading of the Torah on Parashat Va-Yezei is the occasion of perennial confusion and frequent conflict regarding the correct vocalization of the Hebrew name of Issachar. The sources underlying this question are collected and examined in a number of brief essays in the Israeli journal, Ha-Ma'ayan. It is accepted practice to vocalize this name as Yissokhor (Yissakhar according to Sephardic pronunciation) wherever it is found in Scripture, although the spelling of the word would indicate that it is to be enunciated Yissoskhor ( Yissaskhar according to Sephardic usage). This is one of a fairly large number of instances where, according to Masoretic tradition, the vocalization (kri) differs from the written text (ktiv). Accordingly, our printed texts indicate no vowel sign in conjunction with the second sin of this word, nor, for that matter, do they place a dot over the left head of the letter to indicate a sin rather than a shin.
Despite the accepted reading of this name as Yissokhor throughout Scripture, there remains some controversy with regard to the first appearance of this word in Holy Writ in Genesis 30:18. Writing in the Tevet 5727 issue of Ha-Ma'ayan, Dr. Shlomoh Adler discusses the proper vocalization of this first occurrence of the name in the biblical narrative telling of the birth of Jacob's fifth son. Dr. Adler cites the authoritative Minḥat Shai, which indicates that the correct reading is Yissokhor in all occurrences of the name. Noting, however, that in this particular instance the reading of Yissoskhor also has its adherents, Dr. Adler seeks to find justification for this divergent practice as well. He quotes Rabbi Moses Sofer, who, in his commentary on Genesis, Torat Mosheh, states that in this case the double consonant is to be pronounced. Dr. Adler also reports that he remembers hearing this latter reading of the text in Genesis as a child in his native Germany.
In a reply published in the Tishri 5728 issue of the same publication, Professor Ephraim Yehudah Wiesenberg notes that these comments of Torat Mosheh are marked by an asterisk. In the preface of that work, the editor remarks that items marked in this manner were not penned by Hatam Sofer himself, but were the additions of students who purported to have recorded the novellae of their master. Professor Wiesenberg claims that, in this instance their report is almost certainly erroneous, and he marshals evidence from the body of Torat Mosheh itself indicating that the correct vocalization is Yissokhor even in the first occurrence of the name. However, Professor Wiesenberg does find a source for the Yissoskhor reading, tracing the custom to R. Joshua Heschel Babad, Teshuvot Yehoshu'a, no. 72. This opinion notwithstanding, Professor Wiesenberg shows that numerous authorities are explicit in rendering the pronunciation as Yissokhor. So, too, another respondent on this subject, Dr. Saul Esh, writing in the Nisan 5727 issue of Ha-Ma'ayan, cites the many proponents of the Yissokhor vocalization.6Of interest to the bibliophile are the many observations in these articles indicating where variations in the printed texts of the Pentateuch mirror the divergent customs with regard to vocalization.
Dr. Esh discusses a totally different, and virtually unknown, custom with regard to the reading of Yissokhor, a practice which he finds recorded in Naḥalat Ya'akov, a work devoted to various questions pertaining to the Reading of the Torah. According to this compendium, the name should be vocalized as Yissoskhor in all occurrences prior to Numbers 26:24 and as Yissokhor thereafter. Dr. Esh explains the rationale underlying this uncommon practice. He predicates the custom upon one of the numerous reasons for not pronouncing the second sin of this name. One opinion recorded in Torah Shlemah is that this letter was removed from the name of Issachar in order that it might be added to the name of one of his children. According to this explanation, the name Yashuv, occurring in Numbers 26:24, originally lacked a shin. The person denoted by the name Yashuv is one and the same as Yov, identified in Genesis 46:13 as a son of Issachar. According to some authorities, Yov was also the name of an object of pagan worship. Therefore, Yov requested that a sin be taken from his father's name and added to his name, rendering it Yashuv. This tradition, Torah Shlemah claims, is the basis for the practice in some places of vocalizing the double consonant in Yissokhor throughout Scripture until the point where the sin is recorded as part of the name Yashuv in Numbers 26:24; from this point on, the second sin is not vocalized. Both Dr. Esh and Professor Wiesenberg quote many scholars who reject this custom as being unauthoritative.
Rabbinic Contracts
It has become quite common for congregations to grant their rabbis tenure in the form of a life contract. In the Iyar-Sivan 5730 issue of Ha-Ma'or, Rabbi Shneur Zusha Reiss questions the halakhic foundations of this practice and, in the process, discusses the nature of rabbinic contracts. Colleagues in the rabbinate, who may at times feel themselves "enslaved" by their chosen profession, may derive some measure of satisfaction from the realization that this emotion is mirrored in the Halakhah.
The Torah looks upon the institution of slavery with disfavor and permits a Jew to become an indentured servant only when he has no other means of earning a livelihood. Quoting the verse "For unto Me are the children of Israel slaves …" (Lev. 25:55), the Gemara, Baba Meiz'a 10a, declares that Jews are the servants of God and hence are not permitted to become "the servants of servants." Taking the view that any form of involuntary labor is a form of servitude, the Talmud states that a workingman may withdraw from employment "even in the middle of the day." In a gloss upon the citation of this halakhah in Hoshen Mishpat 333:3, Rema quotes definitive authorities who assert that a laborer, or even a teacher or scribe, may not bind himself to an employer for a period greater than three years if the terms of his employment require him to live in the employer's domicile and to accept the employer's board. Permanent employment under such conditions resembles servitude. Service of this type for a period not exceeding three years is sanctioned on the basis of the verse "Within three years, as the years of a hireling …" (Isa. 16:14). The individual accepting such service for a period of three years or less is deemed a "hireling"; if he accepts such employment for a period in excess of three years he has entered into a proscribed form of "slavery." Hatam Sofer, in his collected responsa, Oraḥ Hayyim, no. 206, indicates that according to some authorities it may be permissible to enter into such contracts for a period of time up to six years in length rather than three.7See also Ḥavot Ya’ir, no. 140.
In another responsum, Hoshen Mishpat, no. 172, Hatam Sofer declares that rabbinical contracts are subject to these limitations as well. Although Rema clearly states that such employment is forbidden only if the employee is required to reside in the employer's home, Hatam Sofer maintains that rabbinic employment is comparable to residing in the employer's household since the rabbi is dependent for his livelihood upon the community employing his services. He is thus a communal employee, whose residence and sustenance are provided by the members of the community cooperatively and who, by virtue of the nature of his employment, is required to live in the employer's domicile, i.e., within the community by which he is employed. Hatam Sofer adds, however, that there is no halakhic impediment to a contract for an extended period of time which permits the rabbi to withdraw from the agreement at any time but prevents him from accepting another rabbinical post other than upon payment of a financial penalty. The rationale of this ruling is that the agreement does not bind the rabbi to his employers but simply provides for a fine in the event that he accepts another position.
In the previously cited responsum, Oraḥ Hayyim, no. 206, Hatam Sofer states that there are diverse customs with regard to the terms of rabbinic contracts. In some places a three-year term of service is customary, in others a five-year period; the universal practice is not to draw up an agreement for a period of six years or longer. Hatam Sofer asserts that a specific period of service is stipulated solely for the benefit of the rabbi. The rabbi, being forbidden to bind himself for a longer period of time, is thus enabled to withdraw from his position, if he so chooses, upon termination of the contract. The congregation, however, "cannot withdraw from the agreement even after the stipulated period has expired unless there is a custom to this effect … but it has never been heard or seen in these lands that a rabbi has been removed and deposed from his rabbinical chair and such dare not be done."8See also Ḥatam Sofer, Ḥoshen Mishpat, no. 22, as well as Iggrot Mosheh, Ḥoshen Mishpat, I, nos. 76 and 77. Cf. R. Shlomoh Kluger, Ha-Elef Lekha Shlomoh, Oraḥ Ḥayyim, no. 38 and Yoreh De‘ah, no. 253.
Rabbi Reiss advises that a halakhic authority be consulted before drafting a life contract in order to assure that the provisions are in conformity with Halakhah. It is obvious, however, that, where there is no concomitant obligation on the part of the rabbi—as is usually the case—there is no halakhic impediment to conferral of life tenure by a congregation upon its spiritual leader. Indeed, as has been shown earlier, it may be argued that such tenure accompanies every rabbinic appointment.
Seliḥot Services
Traditionally, the penitential season is ushered in by the recitation of seliḥot after midnight on Saturday night. Of late, there has been a tendency on the part of synagogues in some areas to introduce seliḥot services at an earlier hour for the convenience and, in some cases, the safety of their worshippers.
A number of considerations which augur against this innovation are cited by Birkei Yosef, Oraḥ Hayyim 581:1–2. The practice of not reciting seliḥot prior to midnight is based upon the kabbalistic teaching surrounding the recitation of the thirteen Divine Attributes. The Divine Attributes are the focal point of the seliḥot services and are recited by the congregation in unison following each of the various penitential prayers. The Kabbalists taught that, for mystical reasons, recitation of the Divine Attributes during the latter part of the night awakens divine mercy, whereas recitation of the selfsame Divine Attributes before midnight may, Heaven forfend, have the opposite effect.
A second consideration which precludes recitation of seliḥot before midnight on Saturday evening is the fact that due to the sanctity of the departing Shabbat it is forbidden to recite the Confession (vidduy), which forms an integral part of seliḥot, before midnight has passed.
These provisions regarding the recitation of seliḥot have become part of Jewish law. Indeed, rabbinic authorities advise that it is preferable not to recite seliḥot at all than to recite the Divine Attributes or the Confession before midnight.
There are two possible alternatives to a midnight seliḥot service. The first seliḥot may be recited early Sunday morning before shaḥarit, as is the practice on subsequent days. This is, indeed, the normative practice in German communities on the first day of seliḥot as well. If it is absolutely necessary to conduct the seliḥot services at an earlier hour on Saturday evening, care should be taken to omit recitation both of the Divine Attributes and of the Confession. The latter procedure is clearly not optimal since, liturgically, recitation of the Divine Attributes constitutes the essence of seliḥot.
Dual Bar Mitzvahs
Large synagogues at times find that among their worshippers there are two or more families celebrating the Bar Mitzvah of their respective sons on the same Shabbat. Since it has now become de rigeur for the Bar Mitzvah to chant the haftorah, a problem arises with regard to the accommodation of two young men with the reading of a single prophetic portion. The various feasible solutions to this problem are examined by Rabbi S. Deblitsky in the Nisan-Iyar 5733 issue of Ha-Ne'eman.
The matter cannot be resolved simply by allowing both candidates to read the appropriate haftorah in succession. Since the congregation has already discharged its obligation upon listening to the first reading of the haftorah, the subsequent reading is purely ceremonial and fulfills no liturgical requirement. Accordingly, it is forbidden for the second Bar Mitzvah to recite once again the blessings which accompany the reading of the haftorah.
It has been suggested that ten members of the congregation be apprised of the situation and be requested consciously to disavow the fulfillment of their obligation during the first reading of the haftorah (kavanah she-lo lazet). The second Bar Mitzvah would then be enabled to recite the haftorah and the accompanying blessings on their behalf. Rabbi Deblitsky rejects this solution for two reasons:
1. This procedure causes the pronouncement of an "unnecessary blessing" (brakhah she-einah zerikhah). The utterance of the Divine Name is viewed by Judaism with the utmost gravity; it is a principle of Halakhah that blessings are not to be multiplied unless specificly mandated. Since there is no impediment preventing those present from having proper intent to discharge their obligation during the course of the first reading, they are not permitted, argues Rabbi Deblitsky, consciously to disavow such fulfillment in order to create the need for additional blessings. Although this latter point may well be disputed, Rabbi Deblitsky further argues that the same consideration also precludes having ten individuals leave the synagogue during the first reading of the haftorah.
2. Rabbi Deblitsky points out that many authorities are of the opinion that the reading of both the Torah and the haftorah is a congregational rather than an individual obligation. If the obligation is a congregational one, all those present during such readings automatically fulfill the obligation regardless of their intent or attentiveness. Since the obligation is not personal in nature, its fulfillment cannot be disavowed by an individual.
It should be noted that this sensitive issue has previously been discussed at length by two eminent halakhic authorities who reach somewhat different conclusions. Advancing different considerations, Rabbi Eliezer Waldenberg, ziz Eli'ezer, VI, no. 36, also rules against reading of the Torah by two Bar Mitzvah lads in succession. In the event that the reading of the Torah has been completed and latecomers appear in the synagogue, it is forbidden to read the Torah a second time on their behalf (See Magen Avraham 69:9 and Mishneh Berurah 69:18). The rationale underlying this ruling is that the observer may not realize why the Torah scroll is being opened anew and may think that the reading is being repeated in a new scroll because an error or flaw was found in the first Torah scroll, rendering it halakhically unfit. Unfounded aspersions upon the fitness (kashrut) of a scroll are deemed an indignity to the Torah. Reading the haftorah twice would also involve reading the Torah portion for maftir twice. It would thus appear that the portion was being reread in a second scroll because the first was found to be unfit, thereby causing an indignity to the Torah scroll. Nevertheless, Rabbi Waldenberg asserts that this provision applies only to individual latecomers, but if ten men have not heard the reading of the Torah, the reading may be repeated on their behalf since ten persons constitute a congregation.
Rabbi Waldenberg strongly advises either that one of the Bar Mitzvah boys be accorded an alternate Torah honor or that the entire reading of the Torah be conducted in two separate places, thereby eliminating all difficulties. Only when such arrangements will cause ill-will and antagonism is Rabbi Waldenberg willing to sanction other modes of accommodation. In such circumstances he advises that ten members of the congregation consciously disavow fulfillment of their obligation during the reading of the first Bar Mitzvah. He further rules that even under these circumstances it is preferable for the second Bar Mitzvah to repeat only the haftorah and not to repeat the Torah reading for maftir. When it is not feasible to have ten persons disavow fulfillment of their obligation, he permits the second Bar Mitzvah to repeat the haftorah, provided that the second Bar Mitzvah himself has not heard the first reading or has consciously disavowed fulfillment of the obligation with regard to the reading of the haftorah during the reading of the first Bar Mitzvah.
Rabbi Waldenberg also notes that any congregant may lawfully invoke his halakhic prerogative and protest that repeated reading constitutes an unwarranted encroachment upon his time. Halakhah greatly respects the value of time and provides that the congregation may not be unduly burdened (tirḥah de-zibura) by encroachment upon its time and patience.
Rabbi Moses Feinstein, Iggrot Mosheh, Oraḥ Hayyim, I, no. 102, insists upon the requirement of having ten individuals leave the synagogue during the first reading of the maftir and haftorah and having them re-enter before the second Bar Mitzvah commences the reading of maftir. Rabbi Feinstein points out that the Torah reading of maftir by the person about to recite the haftorah is not an integral part of the Reading of the Torah but was ordained as an "honor to the Torah" since it would be unseemly for the maftir to ignore the Torah scroll by reading only a prophetic selection. This consideration, opines Rabbi Feinstein, does not warrant the reopening of an already closed Torah scroll. Therefore, he concludes, the Torah scroll should not be reopened for the reading of maftir even if ten persons have not yet discharged their obligation with regard to the reading of the haftorah. In order to obviate the indignity to the Torah which would result from opening and unrolling the scroll at second time and, at the same time, accord the second Bar Mitzvah the opportunity of reading maftir, Rabbi Feinstein advises that the scroll not be lifted and closed subsequent to the first reading but that it simply be covered and allowed to remain on the reading table. Rabbi Waldenberg, on the other hand, cites several sources which indicate that for a variety of reasons the scroll must be lifted, rolled and closed before the reading of the haftorah is begun.
Bat Mitzvah Celebrations
The Bar Mitzvah of a Jewish boy is traditionally marked by festivities. The occasion of the Bat Mitzvah of a girl, on the other hand, is virtually ignored by most segments of Orthodox Judaism. Only following the popularization of Bat Mitzvah ceremonies by the Conservative movement have some modem Orthodox congregations in our country instituted similar rituals. Actually, the institution of some type of ceremony to mark this occasion can be traced to the mid-ninteenth century. It is reported that no less an authority than the renowned R. Jacob Ettlinger sanctioned the institution of such observances in Germany in order to combat the inroads of the early Reform movement, and himself delivered addresses on such occasions.8aSee Ha-Ma‘ayan, Tevet 5732, p. 29 and p. 61, n. 25.
Rabbi Moses Feinstein, Iggrot Mosheh, Oraḥ Hayyim, I, 104, in discouraging Bat Mitzvah practices, declares that there is no source for such celebrations and that a festive meal marking this occasion cannot be viewed as a se'udat mizvah (a ritual repast). Discussing a related question, Rabbi Feinstein also maintains that use of the synagogue sanctuary for a Bat Mitzvah ceremony is forbidden by Jewish law. The sanctuary may be used only for sacred purposes. Since Bat Mitzvah rituals have no liturgical basis, the use of the synagogue sanctuary for such purposes, concludes Rabbi Feinstein, is a violation of the sanctity of the synagogue.
Taharat Yom Tov, IX, 40, rules against Bat Mitzvah celebrations on the grounds that they are a Reform innovation. Rabbi Aaron Walkin, Zekan Aharon, I, no. 6, deems such ceremonies to be rooted in gentile observances, i.e., the confirmation ritual of various Christian denominations, and hence forbidden on the basis of the biblical admonition, "u-veḥu-kotehem lo telekhu." This consideration is dismissed out of hand by Rabbi Yechiel Ya'akov Weinberg in the Nisan 5723 issue of Ha-Pardes. Rabbi Weinberg approves of Bat Mitzvah observances when conducted at home or in a congregational hall, but objects to such functions when conducted in the synagogue proper.
Writing in the Tevet 5733 issue of Ha-Ma'ayan,8bThis discussion also appears in Shma‘atin, Kislev 5734. Rabbi Chanoch Zundel Grossberg argues that a festive meal for members of the family on the occasion of a Bat Mitzvah does constitute a se'udat mizvah. In the case of a boy, such a repast is occasioned by the lad's newly assumed obligations with regard to the observance of mizvot. The identical consideration, argues Rabbi Grossberg, should call for a similar observance to mark the Bat Mitzvah of a girl, "even though we have not heard that in previous generations a banquet was made for a girl as for a boy." Rabbi Grossberg, however, advises that for reasons of modesty such a celebration should be limited to members of the family. There is at least one source which serves as a precedent for this view.9See also R. Meshullem Roth, Kol Mevaser, II, no. 44. In No'am VII (5724), Rabbi Isaac Nissim, former Chief Rabbi of Israel, quotes an unpublished responsa collection, Haim ve-Hesed, authored by a Sephardic scholar, Rabbi A. Musapiah, which records that a banquet on such occasions constitutes a se'udat mizvah.9aSee also R. Ovadiah Yosef, Yabi‘a Omer, VI, Oraḥ Ḥayyim, no. 29. At the same time Rabbi Nissim quotes a divergent view. Ben Ish Hai (Re'eh no. 17), writes, "Even though [a festive meal] is not customary on her behalf, [a girl] should nevertheless rejoice on that day."
Women in a Minyan?
The deliberations and publications of the Rabbinical Assembly do not, in the ordinary course of events, properly come within the purview of a work devoted to Halakhah. Much is to be said in favor of simply ignoring pronouncements with regard to Jewish law issued by those who have placed themselves outside the pale of normative Judaism. Yet from time to time a particular action is erroneously presented as being predicated upon authoritative precedents, and hence as being within the parameters of Halakhah. Since the unwary and unknowledgeable may very easily be confused and misled by such misrepresentations it becomes necessary to take note of the issues involved.
In a recent pronouncement, the Committee on Jewish Law and Standards of the Rabbinical Assembly declared that men and women may be counted equally for a minyan (quorum for public prayer). The concept of a minyan as consisting of ten male adults is derived by the Gemara, Megillah 23b, from the verse "How long shall I bear with this evil congregation … ?" (Num. 14:27). The term "congregation" is here applied to the ten spies who returned from scouting the Holy Land with an unfavorable report. Since the appellation "congregation" is applied by Scripture only to a group of ten individuals, the Gemara declares that a quorum for all matters requiring a "congregation" consists of ten persons. Since the "congregation" referred to by Scripture consisted of ten adult males, it follows that the minyan must be composed of adult males.10Cf. Rabbi Chaim Hershensohn, Malki ba-Kodesh, II, 199–201. The list of sources which specificly declare that only males are eligible for inclusion in a minyan is formidable.
In a paper submitted to the Committee on Jewish Law and Standards advocating the inclusion of women in a minyan, Philip Sigal asserts that "before we can declare women qualified to count in a quorum we must be certain that public worship is an absolute requirement, that Jewish public worship requires a specific minimum quorum and that women are obligated equally with men to attend public worship services." Sigal then marshals sources showing that women and men share equal obligations with regard to prayer.11See Arukh ha-Shulḥan, Oraḥ Ḥayyim 106:5–7.
The sources cited would have provided some support for a pronouncement by the Rabbinical Assembly declaring that women are obligated to pray thrice daily. This conclusion is not drawn. Instead Sigal concludes that public prayer is mandatory for women. David Feldman, in a paper submitted to the Committee on Jewish Law in opposition to the resolution, correctly points out that an obligation with regard to public prayer on the part of women does not follow from an obligation to engage in private prayer. Indeed, while there is no lack of halakhic authorities who maintain that women are obligated to recite the amidah twice daily (sha-harit and minḥah), no halakhic authority maintains that women are obligated to pray with a minyan. It is patently inconsistent and, based on the sources, contradictory to declare that women are obligated to pray with a minyan but to absolve them of the obligation to pray three times each day.
The sole precedent cited in support of this innovation is a statement attributed to Rabbenu Simchah, quoted, but not accepted, by Mordekhai, Berakhot 48a. As pointed out by Dr. Feldman, this source is incorrectly cited. Even if his views were not rejected by all other authorities, the opinion of Rabbenu Simchah could not be invoked in support of the position that women may be counted equally with men. Rabbenu Simchah's ruling is much more limited in nature and its application to the question at hand is a distortion of his view.
There is a well-known controversy with regard to whether a minyan consists of ten individuals upon whom public prayer is obligatory, or whether it may be formed by nine adults together with one minor. According to the commentary of Rosh on Berakhot 48a, it would appear that the authorities who permit the inclusion of a minor maintain that in actuality it is the Divine Presence which is included as the tenth member of the minyan.12See, however, Ba‘al ha-Ma’or, Berakhot 48a. Attention may be drawn to the biblical narrative concerning Abraham's supplication on behalf of Sodom and Gomorrah. Abraham at first prayed that those cities be spared if fifty righteous inhabitants were found. Rashi explains that in actuality five cities were marked for destruction and Abraham prayed that the cities be spared if ten righteous persons—a minyan—could be found in each. Subsequently Abraham prayed that the cities be spared even in the event that only forty-five righteous persons could be found. Rashi (Gen. 18:28) comments that Abraham recognized that a minyan must be found for each city, but beseeched the Almighty that He include Himself in that number. This would explain why those authorities who sanction the inclusion of a minor as the tenth person require that he hold a written scroll of one of the books of the Pentateuch in his hand. In reality it is the Divine Presence which is symbolized by the scroll of the Law which is included. The presence of a minor is required by virtue of the rabbinic decree which regards him as being already a quasi-member of the minyan because the minor will one day share the religious obligations of the rest of the minyan.
Rabbenu Simchah maintains that not only a minor but even a woman may be co-opted as the tenth person. According to Rabbenu Simchah, a minyan must consist of nine persons obligated to public worship while the tenth individual may be a participant who does not share an equal obligation. Both minors and women are included in this category. Citation of Rabbenu Simchah does not justify the conclusion that women may be counted equally with men since (1) his view rejected by Mordekhai;13See Be’er ha-Golah, Oraḥ Ḥayyim 55:4. (2) most latter-day authorities, including Pri Megadim, Hayyei Adam, and Arukh ha-Shulḥan, maintain that even a minor may not be included in a minyan; (3) he sanctions only the inclusion of a single woman. On the basis of the above sources, one can no more contend that a minyan may be composed of ten women than that it may be composed of ten minors.
In his paper submitted to the Committee on Jewish Law, and in a carefully worded and well-researched article which appeared earlier in the Summer 1972 issue of Conservative Judaism, David Feldman endeavors to explain why women are ineligible for inclusion as part of a minyan. He asserts that the non-inclusion of women in a minyan is not a form of discrimination against the female sex but simply a concomitant of differing obligations. He explains that the rationale underlying this provision is that only those possessed of an obligation can be numbered in the quorum necessary for the discharge of such obligation. An identical explanation of why women cannot be counted in a minyan for communal prayer is offered by Margaliyot ha-Yam, Sanhedrin 74b, no. 27. This consideration would explain the fact that an onen, who is exempt from prayer, is not eligible to be counted in a minyan.14This explanation may also serve to explain the ruling of a number of authorities to the effect that an onen may recite kaddish and may, accordingly, be counted toward a minyan for that purpose, but for that pupose alone. See R. Yechiel Michal Tucatzinsky, Gesher ha-Ḥayyim, I, chap. 18, no. 2, sec. 3.
Dr. Feldman further argues that in instances in which a minyan is required but in which women share equal obligations with men, Halakhah indeed provides that they may be counted equally with men for purposes of the necessary quorum. Rabbenu Nissim, for example, rules that women, who are obligated to hear the reading of the Megillah, may be counted as part of the minyan for this purpose. Some authorities maintain that the same is true with regard to the mizvah of sanctification of the Divine Name (kiddush ha-Shem). The verse "And I will be sanctified among the children of Israel" (Lev. 22:32) is also understood as meaning that martyrdom is not commanded other than in the presence of at least ten Jews. Rabbi Yosef Engel, Gilyonei ha-Shas, Sanhedrin 74b, and Margaliyot ha-Yam, loc. cit., rule that since the obligation with regard to sanctification of the Divine Name is equally incumbent upon both men and women, women are to be counted as part of the quorum for this purpose.
Despite the cogency of this rationale, it serves as a satisfactory explanation only of the authorities cited in its support. Dr. Feldman himself notes that Minḥat Hinukh, no. 296, maintains that women cannot be counted among the ten persons constituting a quorum for sanctification of the Divine Name, despite the fact that women are unquestionably included in this fundamental obligation. More significant in terms of definitive Halakhah is the fact that Rema, Oraḥ Hayyim 690:18, clearly rejects the view of Rabbenu Nissim. Rema does state that "there is room to question" whether or not women may be counted among the ten. However, Rema's "question" is quoted in the name of Hagahot Asheri, Megillah, chap. 1, who explains that this expression of doubt is based on entirely different considerations. Hagahot Asheri expresses doubt as to whether a minyan in the usual sense of the term is required for the reading of the Megillah, in which case women are to be excluded, or whether the requirement of a quorum is not for purposes of constituting a "congregation" but in order to publicize the miracle of Purim. If the latter is indeed the case, the requirement is not at all for the presence of a minyan as a "congregation," but for publicizing the miracle, which coincidentally also necessitates the presence of ten individuals. Women are excluded from the constitution of the quorum which is needed to form a "congregation." But in the case of the reading of the Megillah, if the requirement is simply that of publicizing the miracle, it follows that this effect is achieved equally whether in the presence of women or of men.
A position which is obviously contradictory to Dr. Feldman's thesis may be found in Magen Avraham, Oraḥ Hayyim 282:6. Magen Avraham cites an opinion which maintains that women are obligated to listen to the Reading of the Law. Yet no authority maintains that women may be counted toward a minyan which is required for this purpose.
For these authorities, all that can be said is that women are ineligible for inclusion in a minyan simply because in terms of derivation of the concept the term "congregation" applies only to adult males. As such it is not a form of discrimination but simply another instance of Halakhah's recognition of the distinctive roles and obligations of men and women within Judaism.
Serious questions have been raised with regard to the role and function of women in modern society and, accordingly, in religious life as well. An appropriate response to the issues which have been presented may be found within the halakhic framework which provides great breadth for the individual self-expression of each man and woman. The teachings and practices of Judaism should certainly not be maligned as being discriminatory in nature. Very much to the point is David Feldman's concluding observation that, quite apart from the fact that "no halakhic basis for counting women is offered," this innovation would make a "ḥukha u-telula of traditional forms by appearing to concede to the feminist charge of oppressive discrimination or inequality. The minyan is not to be indicted for oppressiveness. It is a technical construct true to its own categories."
It is the pretense of seeking halakhic authenticity and the distortion of sources in order to arrive at preconceived conclusions which is particularly offensive. The motivation for the action of the Rabbinical Assembly is readily apparent. It is a reaction to an enhanced awareness of the role of women in modern society and to the understandable clamor for their inclusion in all phases of religious life. As such, the action with regard to minyan is in keeping with the basic philosophy of the Conservative movement. A forthright formulation of the considerations which prompted the innovation is contained in a statement by the chairman of the Committee on Jewish Law in which, inter alia, he states: "The approach to Jewish law in Conservative Judaism has always been to change existing norms where they do not further ethical and spiritual values. When an existing norm reflects a world-view or social situation which no longer exists, then the halakhah is modified."
These sentiments bespeak a lack of recognition of the fact that Halakhah possesses an enduring validity which, while applicable to changing circumstances, is not subject to change by lobbying or by the exertion of pressure in any guise or form. Nor may independently held convictions, however sincere, be allowed to influence our interpretation of Halakhah. Normative Judaism teaches that Halakhah is not derived from any temporal "worldview" or "social situation" but expresses the transcendental worldview of the Divine Lawgiver.