by Raphael Magarik
Raphael Magarik is a PhD student in English at Berkeley and a friend of Jewschool.  Check out his site for more. –aryehbernstein
I come late to the current conversation over gender and tefillin, and we have already heard plenty from other men already on the subject. That said, I thought I would share a quick reaction to R. Aryeh Klapper’s response to my teacher, R. Ethan Tucker.
I have several local disagreements with R. Klapper. For instance, when he claims the Talmud did imagine women wearing tefillin, he over-reads Bavli Eiruvin 95-96. There the idea that women are obligated in tefillin is introduced only as a dialectical, logical hypothetical. Elizabeth Shanks Alexander, who analyzes the Eruvin passage very closely, concludes, “ideological concerns about gender are not responsible for the creation of a position allowing women to wear tefillin.” The position (attributed to R. Meir), which she notes had no practical ramifications, “grew [instead] out of interpretive pressures forced by the Bavli’s academic agenda.” That explains why, as Tosafot and David Weiss Halivni ad loc note, the position directly contracts an explicit anonymous Mishnah, which we usually attribute to R. Meir.
The latest, anonymous layer of the Bavli, the so-called “stamma,” collates widely disparate materials and weaves them together dialectically. The editors express many radical or fanciful ideas which reflect its aesthetic of abstract argumentation—not serious halakhic proposals. Perhaps R. Klapper is not as enamored of academic interpretations of the Bavli as I am and would prefer not to dismiss any line of the Talmud as formal dialectics. But it is telling that he later suggests that those who hold that women are obligated in tefillin “are behaving like ‘outsiders, who transgress the words of the sages and do not wish to interpret Scripture as they do.’” Apparently, R. Meir’s is now the way of outsiders. Or more likely, when push comes to shove, R. Klapper does what we all do. He discounts the Stamma’s move in Eruvin.
I am also confused by R. Klapper’s suggestion that we who believe both men and women are commanded to wear tefillin must think of obligation as social convention. He writes, “Changing the prevalent halakha to make women obligated to wear tefillin would transform many otherwise observant women into sinners. Not addressing this issue risks creating the perception that one views chiyuv [obligation] as merely a social convention.” This point rests on a philosophical confusion. Just because the application of halakha depends on social context, it does not follow that the halakha is conventional. Whether or not contemporary non-Jews are practicing heavy duty idolatry is a question of social practice. The halakhic answer has in fact changed historically; for one tiny example, see this Levush. But the halakhic consequences of that social change—for instance, whether we are forbidden to derive benefit from their wine—are themselves objective. The content of street-signs is conventional; the imperative, in Brooklyn, to stop at a red light is nonetheless objectively binding. (This point is the subject of a good book by John Searle.)
In fact, R. Klapper has it backwards. Only if you believe that halakhah is social convention do we have the power to “transform” women into sinners. If women’s obligation or exemption is an objective question—and apparently R. Klapper and I agree that it is—how exactly is our bowing to prevalent practice supposed to help anyone’s moral status? Take a parallel example. Many Orthodox women believe themselves to be exempt from thrice daily prayer, even though, that is clearly not the best halakhic conclusion. In fact, women are obligated. That is the plain sense of the Mishnah, the Rambam and even the Magen Avraham on which women’s exemption is supposedly based, and it is upheld by many contemporary poskim, notwithstanding R Ovadya Yosef, zts”l’s, ruling. Does R. Klapper think we should rule incorrectly on that point in order to accord with “popular hashkafah [outlook]” and not to “transform women into sinners”? Who here is proffering a model of halakha as social convention?
Ultimately, though, I have a deeper disagreement with R. Klapper. He maintains that there is “value in specifically masculine and specifically feminine ritual,” arguing that “wrapping tefillin has acquired its own liturgy over time, and one core aspect of that liturgy involves men reenacting the betrothal of the Jewish people to G-d—in other words, playing the female role.” What is “the female role”? R. Klapper is vague on that point, but he needs to be explicit. Clearly we often ask men to imagine themselves as women and visa-versa in Jewish tradition. Every time I (who am more or less a man) daven, I act out, as the Talmud clarifies, a paradigm created by Hannah, a barren woman praying for children. So if we are going to say, as R. Klapper does of the tefillin ritual, that the gendering of the verse’s language matters, we have to be clear why gender roles are important here. I will give what I think is the only plausible (if unattractive) account of what R. Klapper could mean. If he has another though, I am eager to hear it.
The suggestion, as I take it, is that the female role is submissive, the male dominant. Surely that is the coordinated logic of the passage in Hosea from which the tefillin ritual is drawn (Hos. 2:21-2). Hosea uses the patriarchal gender relations of his world to express a theistic theology, which imagines God as the empowered party and Israel as the servants or dependents. Just as a man acquires and ‘makes an honest woman’ of a prostitute—providing for and ruling over her—so God will care for and rule over currently wayward Israel. Apparently, since R. Klapper thinks men and women will have radically different experiences of the verses from Hosea, he thinks maleness still means domination and femaleness subordination. In fact, since he wants to uphold this “specifically masculine and specifically feminine ritual,” he apparently wants to perpetuate these semantic equations.
Women, on what I take to be the best construction of R. Klapper’s view, cannot partake in the experience of being betrothed, because they are already, either actually or potentially betrothed to men. A woman cannot be a servant of God, because she is a servant of men. That is indeed Abudraham’s explanation of why women are exempt from tefillin and other time-bound positive commandments (“Because a woman is enslaved to her husband”). Abudraham leaves unclear whether he is describing a changeable, social reality or a theological disparity worth perpetuating. In his context, there was no upshot to that distinction, because there was no chance that the reality would change. But today, in the wake of feminism, to insist that Abudraham’s standard established normative expectations eternally—that’s elevating male power and female subordination to a theological principle. “He for God only,” as John Milton wrote, “she for God in him.” Some of us find this an unattractive theology of gender.
Now, some of us believe gendered power to be fundamentally a b’dieved part of human life, a non-chosen situation to deal with, not an ideal. We understand Hosea’s gendered imagery as an attempt to embody theology in social relations as they existed at his times. In a world of radical gender inequality, maleness and femaleness were strong images for power and dependency, in a way they aren’t today. We hope they will be even less so in the future. But we can still use his language for God, just as we still use metaphors of masters and slaves, though those categories are today both unfamiliar and abhorrent. Last I checked, both men and women find meaning in Yedid Nefesh, because we understand that the poem’s experience of intense longing—in its original form, strictly gendered as female lack and dependency—captures part of our relation to God, even if we don’t think about gender that way. I think this empathetic reading of what texts mean is inescapably part of living in a deep, ancient tradition.
But what does R. Klapper think about all this? Exactly how would R. Klapper counsel a woman to read Shir Hashirim Rabbah, the midrashic text which codifies and explores the marital metaphor for God and Israel’s relationship? I believe he’d have to tell her that these texts don’t apply to her. She, after all, cannot experience the movement from powerful man to ritual, metaphorical woman. She is already a woman; she has no gendered power (that is, maleness) to forfeit for covenantal dependence. I will have a hard time selling this position to my female friends in law school, poised as they are to earn, next year, several times what I will.
I am curious what R. Klapper thinks the “female role” that those women should play is. Perhaps he has some other account of gender relations and of what Hosea meant by comparing God’s betrothal of Israel to a man’s of a woman. If so, I believe it is his responsibility to spell out these matters. The chief virtue of R. Tucker’s article is that it tells you what values he thinks have been and should be at play concerning gender and tefillin. If R. Klapper think there’s an important, gendered difference here, let him say what it is. How are men and women different? Why does that difference generate the halakhic gap on tefillin he favors? Does he believe men ought to dominate and manage women? If not, how does a woman’s experience of being betrothed to God differ from a man’s? We can argue all day about precedent, the pace of change, exactly how much formal rationality halakha exhibits, etc. But if R. Klapper thinks that gendered differentiation on core mitzvot is the will of God, he ought to tell us why.