by Shira H. Fischer

Shira H. Fischer, MD, PhD, is a clinical informatics researcher at Beth Israel Deaconess Medical Center, in Boston. She was a Dorot Fellow in Israel and an AJWS D’var Tzedek Fellow and has taught for the Melton Adult Mini-School and for Limmud. –aryehbernstein

Since the news broke about the girls wearing tefillin in an Orthodox day school, I have been following with interest the discussion about the role of women and laying tefillin – not as a scholar or as someone who has previously thought about the issue very much, but simply as a committed, egalitarian woman who feels very tied to tradition and who has never put on tefillin (and never much considered that fact). Ethan Tucker’s fascinating and thoughtful piece led me to think more about the issue than I had ever before. Rabbi Tucker’s comments about his daughter were particularly relevant as I have two young daughters and my reflections on women and Judaism and education and egalitarianism now have new motivations and new emotions.

I also followed with interest Aryeh Klapper and Raphael Magarik’s conversation on Jewschool, and I appreciated Rabbi Klapper’s responses. (I don’t think anyone who knows him could suggest he thinks the role of man is domination or that woman is man’s servant). My beef with Rabbi Klapper’s article was not about gender but rather about denomination and who determines authenticity.

After criticizing Rabbi Tucker for allegedly seeming “oddly dismissive of the lived experience of the halakhic community” by degendering tefillin, Rabbi Klapper adds a footnote explaining the term “halakhic community” that is as troubling as it is telling. He first very carefully says that he has, in this article, “tried to avoid the trap” of defining a community’s halakhic bona fides and then judging an argument from that community’s practice on the basis of its bona fides or lack thereof. He then proceeds to do exactly that, defining davening with a mechitza as the sine qua non of halakhic norms, thereby deeming legally irrelevant and dismiss-able the practices of communities that do not do so, and undercutting the “standing of scholars”, such as Rabbi Tucker, who who stand behind them. Here is his note in full:

“The terms ‘halakhic community’, or alternatively,’normative community’, and even ‘normative halakhic community’ can generate their own circular logic in both directions: I define your community as non-normative or non-halakhic or non-normative-halakhic, and then reject your right to use your community’s experience as evidence of practice, while you argue that the fact of your community’s practice obligates me to seek justifications rather than grounds for rejection. I have tried to avoid that trap in this essay, but to prevent ambiguity, I state here that I do not regard communities who pray in principle without a mechitzah, and/or practice ritual generally without regard to the exemption of women from various mitzvot, as normatively halakhic, and that has implications for the standing of scholars who endorse such behavior in practice. I am generally opposed to restrictions on what scholars, or for that matter nonscholars, can argue should be the practical halakhah.”

Why does Rabbi Klapper get to decide what is inside and outside? Of course, each individual can determine who he or she thinks is outside the pale of authority, or even Judaism, since that itself isn’t so clear. But Klapper effectively writes off the statements of his colleague by picking one religious practice and sanctifying it as definitive of authenticity. Klapper says he has tried to avoid the trap of defining a community as non-halakhic and then rejecting that community as an example of lived practice. And yet the very next sentence, where he says communities without mechitzot are not “normatively halakhic,” seems to be exactly the trap that he claims to have tried to avoid. He does note that he thinks people can argue whatever they want in principle without undermining their legitimacy. In other words, it’s perfectly fine to argue that egalitarianism in shul is ok. But if you act on that belief, you are now outside of the halakhic sphere.

In and of itself, this argument seems to endorse the opposite of intellectual integrity. I understand the importance of cohesiveness and community and not “separating from the community” (Mishna Pirkei Avot 2:4) in abundant, splintering directions. In his framing, however, all arguments differing from standard practice are meaningless because by definition you can’t act upon them.

But then Klapper takes it one step further: if you put yourself outside of his definition, then any other arguments you make are by definition problematic. Structured this way, change won’t ever be able to happen because even if everyone agrees that it is permitted, that’s fine, but the first person who actually takes the action is now by definition outside of the pale, and their endorsement of their own action becomes an argument against it: “Their every argument damages the causes they believe in.”

So Rabbi Klapper, self-defined as well within the halakhic norm, admits to allowing – nay, welcoming – women who wear tefillin in the minyanim he advises. And yet Rabbi Tucker’s arguments for this practice – that Rabbi Klapper endorses – could reasonably be cited as evidence against the practice being halakhic, because Rabbi Tucker is an outsider, because Rabbi Klapper defined davening without a mechitza as an outsider.

So are we to conclude that while Rabbi Klapper has in the past endorsed keeping kosher, giving charity, and conducting business dealings honestly, the fact that Rabbi Tucker argues for those positions as well is an argument against them being halakhic? That Rabbi Klapper would understand that a scholar might come “waving Rabbi Tucker’s post” as evidence against the importance of kashrut or honesty, he would have a “legitimately” hard time persuading otherwise? He thus intimates that if Rabbi Tucker wants to push forward the causes he believes in, he believes are right, then Tucker’s best bet would be not to argue for those things. In fact, the logical conclusion is that Rabbi Tucker should argue against women wearing tefillin – or against charity or honesty or even belief in God – since his doing so will bolster the opposite argument among the “normative halakhic” community.

I want no part in a halakhic process that determines what is right, what is required, what is ethical, by looking alone at who says it.

Klapper criticizes Tucker for relying on a single midrashic text from the Mekhilta to demonstrate that tefillin is associated with Torah study, rather than with prayer, an association which Klapper opaquely claims can be “reasonably” seen as “continuous with the rest of the Talmudic record (though he provides no evidence justifying what is “reasonable” about this conjecture). But if Klapper is so troubled by cherry-picking one text and building an argument around it, why does give so much credence to the Shiltei Gibborim’s citation of a 13th-14th century Italian Talmudist, Isaiah de Trani the Younger, saying that women must not wear tefillin “because it seems like the way of the outsiders”? Is that view representative? Furthermore, while we can find sources that make an argument that if outsiders do something, we shouldn’t, there are many to the contrary. What about the value of just doing what is right, as the Psalmist entreats us, Sur mera va’aseh tov [“Turn from evil and do good”, Psalms 34:15]? What about the Rambam’s words in his Eight Chapters on Ethics, “Accept the truth from whoever utters it”? How does Rabbi Klapper read Ben Zoma’s teaching in Mishna Pirkei Avot 4:1, “Who is wise? The one who learns from every person”?

I never really thought about laying tefillin before, though these two men who I have benefited to learn from both seem to agree that it is permitted, if not desirable or even required. But where they do disagree, if Aryeh Klapper wants to claim that his main critique of Ethan Tucker’s argument is that Tucker takes one text out of context and dismisses the lived experiences of the halakhic community, then he should argue from the data, not cherry-pick his own, lone sniper texts and claim that Tucker and his community don’t count in the first place anyway – all the while claiming that he tried not to say that. Arguing from the Torah’s rich record would demonstrate the “intellectual generosity” that he claims to seek.